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Ellen v. The Board of Zoning Adjustments For The City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

October 24, 2018

MARY ELLEN AND BRUCE FLEURY
v.
THE BOARD OF ZONING ADJUSTMENTS FOR THE CITY OF NEW ORLEANS

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-12110, DIVISION "N-8" Honorable Ethel Simms Julien, Judge

          D. 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

          Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods

          ROLAND L. BELSOME JUDGE

         This 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.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         In 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), [1] 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.[2] 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.

         STANDARD OF REVIEW

         Summarizing the standard for reviewing decisions of the BZA, this court, in Ellsworth v. City of New Orleans, stated as follows:

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).

         In this 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).

         LAW ...


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