Posted by: Patricia Salkin | December 5, 2015

LA Appeals Court Upholds Board of Zoning Appeals’ Decision to Grant a Zoning Variance to Lot Owner Seeking to Reconstruct a Double Dwelling on a Lot that was 500–Square Feet Undersized

Mary Patricia O’Brien challenged a decision by the City of New Orleans Board of Zoning Adjustments, (“BZA”), which granted a zoning variance to her neighbor, Matthew Osborne. This variance allowed him to reconstruct a double dwelling on a lot that was 500–square feet undersized for a two-family home under current zoning guidelines, as the applicable City of New Orleans Comprehensive Zoning Ordinance (“CZO”) article requires a two-family structure to have a lot area of 3,600 square feet. The BZA found that Osborne had met the applicable requirements for the grant of the variance, and the district court found that the BZA was not arbitrary or capricious in making this finding.

This appeal was limited to whether the BZA was arbitrary or capricious, or abused its discretion in granting Osborne a variance, based on its finding that his circumstances satisfied the nine requirements set out in CZO, § 14.6.4. Here, the BZA’s staff report identified 19 other two-family homes on lots of 3,100 square feet in the immediate vicinity, including a dozen on Osborne’s block alone. It also identified two other similar waivers, including a recent waiver authorizing a duplex on a lot of less than 2,400 square feet. This was found probative, since the variance prevented Osborne from suffering an undue hardship by enforcing an ordinance in a manner that would prevent Osborne from utilizing his property in the same way it had been used for decades, and in the same way a majority of his neighbors utilized their property.

Lastly, the court found the argument that Osborne lost the nonconforming use with the demolition of the building was without merit. Here, Osborne’s application did not seek an extension of the existing permitted nonconforming use, but rather a variance for his oversized lot. Because the BZA’s finding was not arbitrary or capricious, and because applying the CZO as urged by O’Brien would restrict Osborne from building any dwelling, double, single or otherwise, on his property, the judgment of the district court was affirmed.

O’Brien v. Bd. of Zoning Adjustments for City of New Orleans, 2015 WL 5854246 (La. App. 4th Cir. Oct. 7, 2015)

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