Posted by: Patricia Salkin | March 22, 2016

LA Appeals Court Finds Denial of Variance to Allow Three-Foot Setback for Home, Rather than Required 17–Foot–Four–Inch Setback, was Not Arbitrary or Capricious

Plaintiffs, Jose and Elsa Antunez, owners of property located in New Orleans, began construction of a camelback addition on their home prior to obtaining a building permit. A stop work order was placed on the property until plaintiffs complied with the City of New Orleans’ Comprehensive Zoning Ordinances (CZO). To comply, a building permit was obtained and the plans were submitted to the Historic District Landmarks Commission (HDLC) for review. The HDLC informed the plaintiffs that a zoning variance would be needed for the rear yard setback. Although the CZO requires a setback of twenty feet (20′), the plaintiffs’ home site was grandfathered in for a seventeen feet, four inch (17′4″) setback. However, the completion of the camelback addition would leave only a setback of three feet (3′), so plaintiffs applied to the BZA for a zoning variance.

The BZA denied the plaintiffs’ application for the zoning variance, and the plaintiffs appealed that decision to the Civil District Court for the Parish of Orleans. The district judge reversed the BZA’s decision, finding that the BZA’s denial was arbitrary, capricious, and an abuse of discretion. On appeal, the BZA argued that the district court erred in reversing the BZA’s denial of the plaintiffs’ variance request based on a finding that it was arbitrary, capricious, and an abuse of discretion. Specifically, the plaintiffs maintained that because the BZA acknowledges that three other variances resulting in three feet (3′) setbacks were granted, then a denial in this case was per se arbitrary, capricious and an abuse of discretion.

While the first two cited variances were distinguishable, the third variance was similar in nature to the current request, and the staff recommendation also recommended denying the request. However, given the limited information the court had on this variance, it found that this did not constitute a significant enough precedent to support the district court’s judgment. Additionally, the fact that the neighboring property was blighted did not result in decreased protection from encumbrances. The court disagreed there was any precedent for such a claim, and also found that encroaching on blighted property may negatively impact the later development of such property. Accordingly, the court found that the district court erred in reversing the BZA’s decision to deny the requested variance.

Antunez v City of New Orleans Board of Zoning Adjustments, 2016 WL 756695 (2/24/2016)


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