FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-12110,
DIVISION "N-8" Honorable Ethel Simms Julien, Judge
Alex Onstott Max S. Ciolino CIOLINO PRITCHETT & ONSTOTT,
LLC COUNSEL FOR PLAINTIFF/APPELLEE
Rebecca H. Dietz CITY ATTORNEY Cherrell R. Simms SENIOR CHIEF
DEPUTY CITY ATTORNEY Tanya L. Irvin Shawn Lindsay ASSISTANT
CITY ATTORNEY COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Roland L. Belsome, Judge Joy Cossich
Lobrano, Judge Regina Bartholomew-Woods
L. BELSOME JUDGE
appeal stems from the trial court's judgment reversing
the decision of the City of New Orleans, through the Board of
Zoning Adjustments (BZA), to approve a minimum lot width
variance. For the reasons set forth below, we reverse the
trial court's judgment and re-instate the decision of the
Board of Zoning Adjustments.
OF FACTS AND PROCEDURAL HISTORY
conjunction with a request for a re-subdivision, Sunsin
Enterprises, Inc., through Frank Sunsin, applied for two
zoning variances to minimum lot width and minimum lot area on
lot 23, which is a vacant lot immediately adjacent to 927-29
Sixth Street (lot 22),  in New Orleans. Upon finding that all
of the necessary criteria were met for the minimum lot width
variance, the BZA Staff Report recommended approval of the
variance. Conversely, the BZA Staff Report recommended
denying the minimum lot area variance request. After a
hearing, the BZA accepted the Staff Report recommendation,
approving the minimum lot width variance and denying the
minimum lot area variance. Neighbors, Mary Ellen and Bruce Fleury,
appealed the BZA's decision in Civil District Court.
After hearing oral arguments, the trial court reversed the
BZA's decision to approve the minimum lot width variance.
The BZA appealed.
the standard for reviewing decisions of the BZA, this court,
in Ellsworth v. City of New Orleans, stated as
The jurisprudence has recognized that "the decisions of
the BZA, while subject to judicial review under La. R.S.
33:4727(e), are subject to a presumption of validity and are
subject to judicial review only as to whether they are
arbitrary, capricious or an abuse of discretion." The
jurisprudence has further recognized that "[t]he
reviewing court may not simply substitute its own judgment
for that of the BZA." The jurisprudence has still
further recognized that it" 'is not within the
province of the appellate court to second guess a zoning
decision that appears to have been based on appropriate and
well-founded concerns for the public.' "
13-0084, pp. 6-7 (La.App. 4 Cir. 7/31/13), 120 So.3d 897, 902
(internal citations omitted).
context, we review the BZA's, not the trial court's,
decision. "When reviewing an administrative decision,
the district court functions as an appellate court. Since no
deference is owed by the appellate court to the district
court's fact findings or legal conclusions, the appellate
court need only review the findings and decision of the
administrative agency." Garber v. City of New
Orleans Through City Planning Comm'n,
16-1298, p. 6 (La.App. 4 Cir. 12/13/17), 234 So.3d 992, 997
n.7, writ denied sub nom., 18-0351 (La. 4/20/18),
240 So.3d 924 (citation omitted).