120 So. 3d 897
La. Ct. App.2013Background
- Ellsworth sought an after-the-fact rear yard variance (10 feet) to extend into the required 20-foot rear yard, which the BZA denied.
- The property is at 1311-1313 Vignaud Street, New Orleans, subject to a 20-10/20 rear yard requirement under the CZO; the existing nonconforming rear-yard encroachment was 15 feet.
- Ellsworth demolished substantial portions of the original structure, including the five-foot encroachment, creating a loss of the prior nonconforming status.
- Permit history: Permit One allowed limited interior work; Permit Two allowed a camel-back addition and rear porch but was followed by stop-work orders for exceeding scope.
- The BZA considered nine variance criteria and denied the variance; the district court reversed and awarded Ellsworth a 10-foot variance, but the appellate court reversed the district court and reinstated the BZA decision.
- Ellsworth separately asserted three alternative grounds (irregularities in BZA proceeding, Special Yard Exception, vested rights) which the court addressed and rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did BZA correctly apply all nine variance criteria? | Ellsworth asserts BZA erred by denying despite all criteria being met. | City/BZA contends criteria were not all met; district court erred in overturning. | No; the BZA properly found not all criteria were met. |
| Was Criteria 8 (no detriment to public welfare) met given neighbor testimony? | Neighbors’ testimony showed detriment; this supports Criteria 8. | Record evidence shows no substantial detriment; staff report partly supports approval. | No; record evidence does not support Criteria 8. |
| Can the Special Yard Exception apply despite not being raised before BZA? | Special Yard Exception should apply as additional basis for relief. | Not raised before BZA; not properly before appellate review. | Unpersuasive; Special Yard Exception not applicable on these facts; reservation to reapply remains. |
| Does vested rights doctrine apply due to reliance on permits? | Ellsworth relied on permits and seeks vested rights to continue. | Permits did not justify vested rights; reliance was unjustified given permit scope and violations. | Inapplicable; vested rights do not apply here. |
Key Cases Cited
- French Quarter Citizens For Preservation of Residential Quality, Inc. v. City Planning Comm’n, 763 So.2d 17 (La.App. 4th Cir. 2000) (preserves BZA review standard of arbitrariness or abuse of discretion; substantial evidence standard applied with deference to BZA.)
- Curran v. Board of Zoning Adjustments, 580 So.2d 417 (La.App. 4th Cir. 1991) (nine criteria framework for variances; cannot grant without all nine met.)
- Lake Forest Inc. v. Board of Zoning Adjustments of City of New Orleans, 487 So.2d 133 (La.App. 4th Cir. 1986) (recognizes limited appellate review of BZA decisions.)
- Cross v. City of New Orleans, 446 So.2d 1253 (La.App. 4th Cir. 1984) (recognizes deference to BZA and non-verify substitutes of judgment.)
- Toups v. City of Shreveport, 60 So.3d 1215 (La. 3/15/2011) (citizen testimony is a valid consideration in zoning decisions.)
- Tolis v. Cooper, 522 So.2d 594 (La.App. 1st Cir. 1988) (if criteria partially met, still need proof for all other criteria.)
- St. Raymond v. City of New Orleans, 769 So.2d 562 (La.App. 4th Cir. 2000) (vested rights and reliance limitations on building permits.)
- McPherson v. City of New Orleans Board of Zoning Adjustments, 902 So.2d 573 (La.App. 4th Cir. 2005) (unpublished decision cited as basis for Special Yard discussion; review limited to record.)
- Pailet v. City of New Orleans, Dep’t of Safety and Permits, 433 So.2d 1091 (La.App. 4th Cir. 1983) (disallows vested rights when reliance on permit is unjustified.)
- Parish of Jefferson v. Davis, 716 So.2d 428 (La.App. 5th Cir. 1998) (illustrates limits on permitting doctrine; zoning remains controlling.)