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
Lindsay DEPUTY CITY ATTORNEY Rebecca H. Dietz CITY ATTORNEY
Adam J. Swensek CHIEF DEPUTY CITY ATTORNEY CITY OF NEW
ORLEANS COUNSEL FOR DEFENDANT/APPELLEE
composed of Chief Judge James F. McKay, III, Judge Edwin A.
Lombard, Judge Daniel L. Dysart
L. Dysart, Judge
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.
AND PROCEDURAL BACKGROUND
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"). 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).
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."
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.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.
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,
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."
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.
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 ...