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Without a Lease, Case is Academic
by Ron Davis

Did government officials in the New Orleans area unevenly enforce a “no-commercial-vehicles” regulation to the detriment of a local shopping center?

The owner of the shopping center sure thinks so. And she sued, claiming that the officials violated her constitutional rights by its actions.

The shopping center, located in Metairie, had at one time included a Winn-Dixie supermarket. And the center’s owner encountered the problem when she attempted to lease some of the space formerly occupied by Winn-Dixie to a business named Academy Leasing Co.

While Winn-Dixie operated its supermarket there, the local government enacted a regulation that prohibited the operation of tractor-trailers on any local streets except those designated as truck routes or “local deliveries only” zones.

The regulation thereby banned such vehicles from the area where the shopping center’s loading docks are located. And the center’s owner assumed that the regulation adversely affected prospective tenants such as Academy Leasing.

Yet, Winn-Dixie had routinely received merchandise from tractor-trailers. Moreover, a Home Depot store next to the center also regularly received merchandise at its loading docks, requiring trucks to use a residential street for deliveries.

Academy Leasing, however, had never actually received merchandise deliveries. In fact, it was unable to begin operations as a tenant at the shopping center because local government officials had rejected its construction plans and refused to issue the necessary building permits. So the lease agreement between Academy and the shopping center was never consummated.

The shopping center owner nevertheless claimed that government officials were denying Academy Leasing the potential use of the center’s loading docks by tractor-trailers. She therefore concluded that such selective enforcement of the commercial-vehicle regulation represented an unconstitutional governmental “taking” and that she should receive payment for her loss of a tenant’s rents.

A Louisiana appellate court sided with the local government, explaining, “The shopping center owner does not present any evidence that government officials began enforcing the regulation as to her property, nor does she allege that enforcement of the regulation prevented any actual merchandise deliveries at any time. Because of the lease problem between landlord and prospective tenant and the fact that building permits were not issued by the deadline, the property was never occupied by Academy Leasing and no merchandise was ever delivered. The shopping center owner has simply not borne her burden of proof that the regulation was enforced at all against the property.” (821 So.2d 109 [La.App. 5 Cir. 2002])

Decision: June 2002
Published: September 2002



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