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Garber v. City of New Orleans Through City Council

Court of Appeals of Louisiana, Fourth Circuit

December 13, 2017


         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-02849, DIVISION "I-14" Honorable Piper D. Griffin, Judge



          Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore

          Roland L. Belsome Judge.

         This is a land use case. The owner of vacant commercial property in the French Quarter sought approval to remodel the structure and re-subdivide the lots in order to operate a Cuban restaurant: Café Habana. After the submission of several applications, the City of New Orleans, through both the Vieux Carré Commission (VCC) and the City Council, approved the owner's fourth application to remodel the property. The City of New Orleans, through the City Planning Commission (CPC), also approved the request for a re-subdivision. The Appellants, several neighbors and neighborhood preservation groups, brought suit for judicial review of the City's decisions. On appeal, the trial court found that there was nothing to suggest that the City acted unreasonably or inconsistent with its legal mandates; therefore, it denied relief to the Appellants. We agree and affirm.


         The property owner, Esplanade Nola, LLC, owns two contiguous lots on the outskirts of the French Quarter, at the intersection of Esplanade Avenue and North Rampart Street. The lots house two separate buildings bearing the physical addresses 1036-38 Esplanade Avenue and 1040 Esplanade Avenue.[1] The two respective properties, built in the early part of the 1900's, were previously used as a pharmacy and a gasoline service station before falling into disrepair.[2] Prior to filing the application at issue in this appeal, Esplanade Nola, or its affiliates, had filed three applications, the first in 2012, to develop the property into a standard restaurant. Those applications were either deferred or withdrawn.

         On August 12, 2014, Esplanade Nola filed its fourth application for a "change of use" and renovation of its property. On August 26, 2014, after a hearing, including a staff presentation and opportunity for public comment, the Architectural Committee of the VCC elected to "conceptually approve" Esplanade Nola's project proposal consistent with the staff recommendation. The staff recommended conceptual approval, provided that Esplanade Nola submitted design revisions to include plans for: elevation, capacity, table arrangements, signage, property line fencing, lighting, cooler condenser and kitchen exhaust placement, re-subdivision application documents and an updated survey. After the Architectural Committee granted conceptual approval, the application was forwarded to the VCC for conceptual review.[3] At the VCC meeting on September 3, 2014, the staff made its presentation and the public was afforded an opportunity for comment. Ultimately, the VCC voted to approve the conceptual design consistent with the staff analysis and recommendation of the Architectural Committee.

         On September 23, 2014, the Architectural Committee reviewed updated design plans in detail. The staff again recommended "approval for the evolving design development, " provided additional revisions were submitted. The designs were to include revisions to: signage, property line fencing, lighting, and cooler condenser and kitchen exhaust placement. In light of public comments, particularly noting capacity concerns, the Committee's discussions focused on the use of two proposed courtyards. After an intensive discussion, the Architectural Committee voted to approve the project within the design development phase on the condition that the drawings were revised to clarify the use and occupancy of the courtyards. The application went back before the VCC on October 1, 2014. At the conclusion of the customary presentation, public comment session, and discussion, the VCC voted to defer action on the project until the Architectural Committee completed its review of the design development.

         After deferral, the project went before the Architectural Committee two more times, on October 14 and December 9, 2014. On October 14, the Committee conceptually approved the project for the third time, requiring more revisions and a preliminary approval of the occupancy load from the State Fire Marshall. Meanwhile, at the direction of the VCC, an application to re-subdivide the two lots into one single lot was filed on November 18, 2014, with the New Orleans City Planning Commission. On December 9, the Architectural Committee unanimously voted to approve the proposal and forwarded the project to the VCC for approval.

         Finally, on January 7, 2015, [4] after another meeting, the VCC voted to approve the project, provided that the use of umbrellas on the rooftop canopy would be strictly prohibited. Additionally, the VCC voted to forward a favorable recommendation to the CPC for approval of the re-subdivision. After two public hearings, the CPC approved the minor re-subdivision.

         The decision of the VCC was appealed to the New Orleans City Council.[5]On March 12, 2015, after a lengthy public hearing, wherein the executive director of the VCC provided a Property Summary report, the City Council voted to deny the relief sought in the appeal. On April 9, 2015, the City Council adopted written reasons for denying the appeal, citing to the VCC staff report in support.

         The Appellants appealed the City Council and the CPC's administrative decisions to the trial court. On appeal, the trial court affirmed the City's decisions and denied the relief requested. This timely appeal followed.


         The general authority for local government to regulate land use is conferred by La. Const. Art. 6, § 17, which provides in part:

Subject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning, and historic preservation, which authority is declared to be a public purpose; (2) create commissions and districts to implement those regulations; (3) review decisions of any such commission; and (4) adopt standards for use, construction, demolition, and modification of areas and structures.

         Land use is subject to the police power of various governing bodies, and the courts will not interfere with the decisions of these bodies unless it is clear that their action is without any relation to the public health, safety, or general welfare. See Palermo Land Co., Inc. v. Planning Com'n of Calcasieu Parish, 561 So.2d 482, 491 (La. 1990); Apasra Properties, LLC v. City of New Orleans, 09-0709, p. 8 (La.App. 4 Cir. 2/11/10), 31 So.3d 615, 621; and K.G.T. Holdings, LLC v. Par. of Jefferson, 14-872, p. 6 (La.App. 5 Cir. 3/25/15), 169 So.3d 628, 632, writ denied, 15-0810 (La. 6/19/15), 172 So.3d 652.

         "In reviewing [land use] decisions of public bodies [the City of New Orleans through the City Council and the City Planning Commission in the instant case], courts will not interfere with the functions of these bodies in the exercise of the discretion vested in them unless such bodies abuse this power by acting capriciously or arbitrarily." Herman v. City of New Orleans, 14-0891 (La.App. 4 Cir. 1/21/15), 158 So.3d 911, 915 (quoting Lake Terrace Prop. Owners Ass'n v. City of New Orleans, 567 So.2d 69, 74 (La. 1990)); see also, Palermo, 561 So.2d at 492; Tucker v. City Council for City of New Orleans, 343 So.2d 396, 399 (La.App. 4th Cir. 2/15/77), writ denied sub nom., 345 So.2d 56 (La. 1977)(where this Court found that judicial review of action of a local governing body in reversing or modifying a decision of a historic district commission is limited to deciding whether the governing body of the subdivision acted reasonably), and La. R.S. 33:101.1[6] (stating the same standard of review for a governing authority's decision regarding a re-subdivision). "Generally, 'capriciously' has been defined as a conclusion of a commission when the conclusion is announced with no substantial evidence to support it, or a conclusion contrary to substantiated competent evidence." Herman, 158 So.3d at 915-16. "The word 'arbitrary' implies a disregard of evidence or the proper weight thereof." Id. at 916.

         A challenge to a land use decision in Louisiana is a de novo proceeding on the issue of whether the result of the legislation is arbitrary and capricious, and therefore a taking of property without due process of law.[7] See Mannino's P & M Texaco Serv. Ctr., Inc. v. City of New Orleans, 15-0109, pp. 3-4 (La.App. 4 Cir. 8/19/15), 173 So.3d 1186, 1189 (citing Palermo, 561 So.2d at 492). Whether an ordinance bears the requisite relationship to the health, safety, and welfare of the public is a factual question which must be determined from the evidence in the record. Id. Legislative acts are presumed valid and the burden rests on the person challenging the act to establish by a preponderance of the evidence that the decision by the governmental body has no substantial relationship to public health, safety, morals, or general welfare of the municipality. Id. (citing Palermo, 561 So.2d at 493).

         Appellants assert that the trial court applied the wrong standard of review when applying the arbitrary and capricious standard. Although they assert that there is a higher standard set forth in La. R.S. 25:746, there is nothing in the plain language of La. R.S. 25:746 that provides a standard of review different from the arbitrary and capricious standard enunciated in the well settled law and jurisprudence. Rather, the statute sets forth considerations to be made by the trial court to ensure that the governing body's decision comports with the essential duties and purpose of the commission, which is to preserve the character of the View Carré, as provided in the Louisiana Constitution.


         The Appellants seek review of two administrative decisions rendered by the City of New Orleans, through the City Council and the CPC. The Appellants raise numerous assignments of error, which involve three primary issues: 1) whether the City Council acted arbitrarily and capriciously in voting to approve Esplanade Nola's application for renovation and "change of use"; 2) whether the CPC acted arbitrarily and capriciously in approving the re-subdivision of Esplanade Nola's two lots; and 3) whether the trial court wrongfully excluded relevant evidence.


         First, the Appellants challenge the VCC and the City Council's decision to approve Esplanade Nola's application for renovation and "change of use." Appellants raise two arguments regarding this approval: 1) the VCC's approval went beyond its authority, and 2) the VCC and the City Council violated its constitutional mandates to protect ...

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