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Dupuis v. City of New Orleans Through Its Zoning Board of Zoning Adjustments

Court of Appeals of Louisiana, Fourth Circuit

August 2, 2017

TROY DUPUIS AND WAREHOUSE DISTRICT NEIGHBORHOOD ASSOCIATION
v.
THE CITY OF NEW ORLEANS THROUGH ITS ZONING BOARD OF ZONING ADJUSTMENTS

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-04773, DIVISION "I-14" Honorable Piper D. Griffin, Judge

          William D. Aaron, Jr. DeWayne L. Williams AARON & GIANNA, PLC COUNSEL FOR PLAINTIFF/APPELLANT

          Shawn Lindsay DEPUTY CITY ATTORNEY Rebecca H. Dietz CITY ATTORNEY Adam J. Swensek CHIEF DEPUTY CITY ATTORNEY CITY OF NEW ORLEANS COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Daniel L. Dysart

          Daniel L. Dysart, Judge

         This is an appeal by plaintiffs, Troy Dupuis and the Warehouse District Neighborhood Association ("WDNA"), of a trial court judgment denying their Petition for Judicial Review of a City of New Orleans Board of Zoning Adjustments ("BZA") ruling. For the reasons that follow, we affirm the trial court's judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         Troy Dupuis and the WDNA (sometimes collectively referred to as "plaintiffs") filed this lawsuit following an April 11, 2016 decision of the BZA granting a variance to Eskew Dumez Ripple Architects ("EDR Architects") concerning the redevelopment of a vacant, 5-story building and adjacent parking lot located in the Warehouse District Local Historic District in New Orleans, Louisiana (the "Property").[1] According to the lawsuit, EDR Architects sought the following variances in connection with their proposal to develop the site into a hotel:

- A waiver of the required minimum setback (so that there would be no setback);
- A waiver of 55 feet of the required height maximum of 125 feet (so that the maximum allowed would be 180 feet); and
- A waiver of the required maximum number of stories of 10 (to increase the number of stories to 16).[2]

         It is only the second of these variances approved by the BZA to which the plaintiffs objected. Through this lawsuit, the plaintiffs sought to have the approval of this ruling declared null and void "because the decision of the BZA was arbitrary and capricious."

         A hearing was held on the plaintiffs' request for a review of the BZA decision on September 16, 2016 and by judgment dated September 25, 2016, the trial court ruled in favor of the City of New Orleans, through the BZA, denying the Petition for Judicial Review, a decision noted by the trial court to be final.[3]Plaintiffs timely filed an appeal of this judgment and contend that the trial court erred in denying their Petition for Judicial Review on the basis that the BZA's decision was arbitrary and capricious.

         Standard of Review

         At the outset, we note that the district courts have original jurisdiction to review a decision of an administrative body, such as the BZA. See, e.g., Lanaux v. City of New Orleans, Bd. of Zoning Adjustments, 489 So.2d 329, 331 (La.App. 4 Cir. 1986)("the challenge to the grant of a zoning variance is an action invoking the original jurisdiction of the trial court"); Gertler v. City of New Orleans, 346 So.2d 228, 233 (La.App. 4 Cir. 1977); River Oaks-Hyman Pl. H. Civ. A. v. City of New Orleans, 281 So.2d 293 (La.App. 4 Cir., 1973)("when a district court reviews a decision of an administrative body, it is exercising 'exclusive original jurisdiction'"). Indeed, "[t]he purpose of certiorari review by the district court of decisions of boards and quasi-judicial tribunals is to 'determine whether jurisdiction has been exceeded, or to decide if the evidence establishes a legal and substantial basis for the Board's decision.'" Esplanade Ridge Civic Ass'n v. City of New Orleans, 13-1062, p. 3 (La.App. 4 Cir. 2/12/14), 136 So.3d 166, 169, quoting Elysian Fields, Inc. v. St. Martin, 600 So.2d 69, 72 (La.App. 4th Cir.1992); Cordes v. Bd. of Zoning Adjustments, 09-0976, p. 6 (La.App. 4 Cir. 1/20/10), 31 So.3d 504, 508; Daigle v. Jefferson Par. Council, 09-440' p. 7 (La.App. 5 Cir. 5/25/10), 40 So.3d 1063, 1067.

         The Courts of Appeal, then, have appellate jurisdiction with respect to the review of district court decisions concerning their review of decisions of zoning boards. See, River Oaks, 281 So.2d at 294-05. As the Supreme Court indicated, in King v. Caddo Par. Comm'n, 97-1873, pp. 14-15 (La. 10/20/98), 719 So.2d 410, 418, "[a] reviewing court does not consider whether the district court manifestly erred in its findings, but whether the zoning board acted arbitrarily, capriciously or with any calculated or prejudicial lack of discretion."

         This Court recently reiterated the role of the appellate court in reviewing a decision of a zoning board, first noting that, because "[z]oning laws and decisions fall within the legislative function of the state and local municipalities, " "the courts afford a presumption of validity to the decisions of zoning boards." Vieux Carre Prop. Owners v. City of New Orleans, 14-0825, p. 6 (La.App. 4 Cir. 4/15/15), 216 So.3d 873, 877, writ denied sub nom., 15-1147 (La. 9/18/15), 178 So.3d 149 (Citations omitted). The Vieux Carre Court then explained:

[The] presumption [of validity] is rebuttable; and a party aggrieved by a decision of the BZA is entitled to judicial review through a writ of certiorari. Cordes [v. Bd. of Zoning Adjustments, 09-0976, p. 6 (La.App. 4 Cir. 1/20/10), 31 So.3d 504, 508]; see also La. R.S. 33:4727(E); La. R.S. 49:964. The purpose of certiorari review of the BZA decision is to determine whether the evidence establishes a legal and substantial basis for the decision or whether the BZA has exceeded its jurisdiction and acted in an arbitrary and capricious manner. Esplanade Ridge Civic Ass'n v. City of New Orleans, 13-1062, p. 3 (La.App. 4 Cir. 2/12/14), 136 So.3d 166, 169; Elysian Fields, Inc. v. St. Martin, 600 So.2d 69, 72 (La.App. 4th Cir.1992). "The test of whether a zoning board's action is arbitrary and capricious is whether the action is reasonable under the circumstances." Esplanade Ridge, 13-1062, p. 4, 136 So.3d at 169 quoting King v. Caddo Parish Com'n, 97-1873, p. 14 (La.10/20/98), 719 So.2d 410, 418.

Id.

         Our jurisprudence indicates that "the decisions of the BZA…are subject to judicial review only as to whether they are arbitrary, capricious or an abuse of discretion." Antunez v. City of New Orleans Bd. of Zoning Adjustments, 15-0406, p. 2 (La.App. 4 Cir. 2/24/16), 187 So.3d 525, 526, quoting Ellsworth v. The City of New Orleans, 13-0084, pp. 6-7 (La.App. 4 Cir. 7/31/13), 120 So.3d 897, 902 (emphasis added). Thus, an appellate court "should not second guess the BZA or substitute its own judgment for that of the BZA." Id. See also, City of Baton Rouge/Par. of E. Baton Rouge v. Myers, 13-2011, p. 6 (La. 5/7/14), 145 So.3d 320, 327-28 ("[i]t is only when an action of a zoning commission is found on judicial review to be palpably unreasonable, arbitrary, an abuse of discretion, or an unreasonable exercise of police power that such action will be disturbed").

          Moreover, "[w]hen there is room for two opinions, an action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed an erroneous conclusion has been reached." Vieux Carre Prop. Owners v. City of New Orleans, 14-0825, p. 7, 216 So.3d 873 at 877-78 (quoting Toups ...


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