Elysian Fields, Inc. v. St. Martin

• Decision Date: 30 January 1992
• Docket Number: No. 91-CA-0333,91-CA-0333
• Parties: ELYSIAN FIELDS, INC. v. Marcia ST. MARTIN, in her capacity as Director of the Department of Safety and Permits, City of New Orleans, and the Board of Zoning Adjustments of the City of New Orleans through its Chairman, Clarence A. Smith; and its individual members R. Ray Orrill, Jr., Gretchen Bomboy, Mary Chachere, and Mildred Young. 600 So.2d 69
• Court: Court of Appeal of Louisiana — District of US

Page 69

600 So.2d 69

ELYSIAN FIELDS, INC. v. Marcia ST. MARTIN, in her capacity as Director of the Department of Safety and Permits, City of New Orleans, and the Board of Zoning Adjustments of the City of New Orleans through its Chairman, Clarence A. Smith; and its individual members R. Ray Orrill, Jr., Gretchen Bomboy, Mary Chachere and Mildred Young.

No. 91-CA-0333.

600 So.2d 69

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 30, 1992.

William P. Quigley, New Orleans, Steve Bachmann, Grosse Pointe, Mich., and Corinne Van Dalen, New Orleans, for plaintiff/appellant.

Nadine M. Ramsay, Asst. City Atty., Dwight W. Norton, Deputy City Atty., Kathy Lee Torregano, Chief Deputy City Atty., William D. Aaron, Jr., City Atty., New Orleans, for defendant/appellee.

Gideon T. Stanton, III, Guste, Barnett & Shushan, New Orleans, for intervenor/appellee.

Before BARRY and CIACCIO, JJ., and BRYAN, J. Pro Tem.

BARRY, Judge.

Elysian Fields, Inc. (EFI) appeals the denial of a zoning variance which it sought to complete the second phase of a building renovation project.

In September, 1986 EFI, a non-profit corporation, purchased five buildings on Elysian Fields Avenue. The property had been a funeral home for many years with a legal non-conforming zoning status because no off-street parking was provided. The property is in the Historic Marigny/Treme Commercial District and zoned HMC-2 under the Comprehensive Zoning Ordinance of New Orleans (CZO). ¹ EFI planned to convert the buildings into offices to house the operations of its three member organizations: the Association of Community Organizations for Reform Now (ACORN), Service Employees International Union Local 100, and Affiliated Media Foundation Movement (AMFM).

In 1987 EFI obtained a building permit to renovate several of the buildings and it was not required to provide additional parking space. In September, 1989 EFI applied for a building permit (for the second phase) which, according to EFI, was to add office space, a kitchen, board room, and an area to hold an annual meeting. Problems began when EFI was informed that 20 off-street parking spaces were required (pursuant to the CZO) because the Department of Safety and Permits (DSP) considered the second phase a separate project. The DSP denied the building permit and EFI sought a variance which was denied by the Board of Zoning Adjustments (BZA) after three public hearings on October 9, November 20 and December 11 1989. EFI filed for certiorari in the district court, and Eugene Theriot, an adjacent property owner, intervened.

EFI appeals the district court's denial of certiorari based on five arguments:

(1) the court relied on representations of the DSP;

(2) the BZA's decision that its offices were not professional offices (allowed in HMC-2) was arbitrary and capricious;

(3) the BZA had no evidence that the renovation project was an impermissible expansion of a non-conforming use;

(4) EFI is deprived of the beneficial use of its property and thereby denied due process of law;

(5) the City was arbitrary and capricious by denying the permit, and the BZA's decision that EFI did not meet the conditions for a variance was not supported by the evidence.

THE LAW

Decisions of the BZA are afforded a presumption of validity. A reviewing court should not merely substitute its own judgment for that of the BZA unless there is a showing that the Board was arbitrary and capricious or abused its discretion. Buuck v. Board of Zoning Adjustments, Department of Safety and Permits, City of New Orleans, 537 So.2d 244 (La.App. 4th Cir.1988); Lakeshore Property Owners Association v. City of New Orleans, Zoning Board of Appeal and Adjustments, 481 So.2d 162 (La.App. 4th Cir.1985), writ denied 484 So.2d 674 (La.1986).

The purpose of certiorari is to review the findings of boards and quasi-judicial tribunals to determine whether jurisdiction has been exceeded, or to decide if the evidence establishes a legal and substantial basis for the Board's decision. Gertler v. City of New Orleans, 346 So.2d 228 (La.App. 4th Cir.1977), writ denied 349 So.2d 885 (La.1977), cert. denied 434 U.S. 1068, 98 S.Ct. 1248, 55 L.Ed.2d 770 (1978).

Under the Administrative Procedure Act, a reviewing court may reverse or modify a board's decision if substantial rights of the appellant have been prejudiced because the decision is arbitrary or capricious or its findings are characterized by an abuse of discretion, or the decision is manifestly erroneous in view of substantial evidence in the record. Due regard shall be given to the agency or board's determination of credibility issues. La.R.S. 49:964 G; Gertler, 346 So.2d at 228.

Zoning laws are in derogation of the rights of private ownership. Schmitt v. City of New Orleans, 461 So.2d 574 (La.App. 4th Cir.1984), writs denied 464 So.2d 318 and 319 (La.1985). CZO Art. 7, Sec. 1 provides that low and medium density (HMC-2 districts are medium density under Art. 7, Sec. 2(6a)) office buildings are required to provide one parking space per 400 feet of floor area.

The BZA has the authority to consider applications for a variance from the CZO. La.R.S. 33:4727. CZO Art. 15, Sec. 2.3(1) provides:

Standards for Variances. The Board of Zoning Adjustments shall not authorize a Variance from the requirements of this Ordinance unless it shall make findings based upon the evidence presented to it that each special case shall indicate all of the following:

a. Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district.

b. Literal interpretation of the provisions of this Ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this Ordinance.

c. The special conditions and circumstances do not result from the actions of the applicant or any other person who may have or had interest in the property.

d. Granting the variance requested will not confer on the applicant any special privilege which is denied by this Ordinance to other lands, structures or buildings in the same district or similarly situated.

e. The variance, if granted, will not alter the essential character of the locality.

f. If the strict adherence to the regulation for the property would result in a demonstrable hardship upon the owner as distinguished from mere inconvenience.

g. The purpose of the variance is not based exclusively upon a desire to serve the convenience or profit of the property owner or other interested party(s).

h. The granting of the variance will not be detrimental to the public welfare or injurious to other property or improvements int [sic] the neighborhood in which the property is located.

i. The proposed variance will not impair an adequate supply of light and air to adjacent property, or increase substantially the congestion in the public streets, or increase the danger of fire, or endanger the public safety.

A non-conforming use is a use which lawfully existed prior to the enactment of a zoning ordinance and was maintained after the effective date of the ordinance although the continued use violates the new restrictions. City of New Orleans v. Elms, 566 So.2d 626 (La.1990). At the time of the application for a use and occupancy certificate, the Director of the DSP makes the initial determination as to the existence of a non-conforming use after the owner produces evidence attesting to that status. CZO Art. 12, Sec. 7.

To be entitled to a non-conforming use exemption the property owner has the burden to show that the property was lawfully subject to the non-conforming use at the time the zoning ordinance became effective and that neighboring property owners were aware of the use. Dudenheffer v. City of New Orleans, Department of Safety and Permits, 482 So.2d 175 (La.App. 4th Cir.1986).

Because a non-conforming use is inconsistent with the objective of a zoning ordinance which is to confine certain classes of buildings and uses to certain localities, it should be viewed narrowly and have all doubts resolved against continuation or expansion of the non-conformity in order to preserve the property rights of adjacent property owners. Continuance of the non-conforming use is the continuance of the same use and not some other use. Redfearn v. Creppel, 455 So.2d 1356 (La.1984). In all districts except the Vieux Carre Districts (1990 revision adds Historic Marigny/Treme Districts to the exception), a non-conforming property may be changed to another non-conforming use of the same or more restrictive classification if no structural alteration is made. CZO Art. 12, Sec. 4. A building will lose its non-conforming status if it remains vacant for a continuous period of six months. CZO Art. 12, Sec. 2; Pailet v. City of New Orleans, Department of Safety and Permits, 433 So.2d 1091 (La.App. 4th Cir.1983), writ denied 440 So.2d 757 (La.1983). The burden of proving termination of a non-conforming use status by discontinuance is on the party urging it. Panzeca v. City of New Orleans, 580 So.2d 489 (La.App. 4th Cir.1991), writs denied 585 So.2d 566 and 567 (La.1991).

According to CZO Art. 5, Sec. 26.2, property zoned HMC-2 shall be used only for specified purposes. The only relevant use was the first one listed, any use permitted in HMC-1, Historic Marigny/Treme Commercial District without floor area restrictions. CZO Art. 5, Sec. 25.2 listed permitted uses in an HMC-1 area, which includes number 8, professional offices.

CZO Art. 14, Sec. 2, which contains definitions, does not define business or professional offices. However, CZO Art. 5, Sec. 8.2 relative to permitted uses in the General Office District (RO) listed general business offices separately from professional offices.

THE RECORD

The record contains the following chronology. EFI's building permit application dated July 6, 1987 for renovation of 1024-26 Elysian...