Lakeshore Property Owners Ass'n v. City of New Orleans, Zoning Bd. of Appeal and Adjustments

• Decision Date: 11 December 1985
• Docket Number: No. CA-3542,CA-3542
• Citation: 481 So.2d 162
• Parties: LAKESHORE PROPERTY OWNERS ASSOCIATION and Frank Rabito v. CITY OF NEW ORLEANS, ZONING BOARD OF APPEAL AND ADJUSTMENTS and Mrs. Ralph C. Lally, II.
• Court: Court of Appeal of Louisiana — District of US

Page 162

481 So.2d 162

LAKESHORE PROPERTY OWNERS ASSOCIATION and Frank Rabito v. CITY OF NEW ORLEANS, ZONING BOARD OF APPEAL AND ADJUSTMENTS and Mrs. Ralph C. Lally, II.

No. CA-3542.

Court of Appeal of Louisiana,

Fourth Circuit.

Dec. 11, 1985.

As Corrected on Denial of Rehearing

Jan. 27, 1986.

Salvador Anzelmo, City Atty., Karen Milner, Deputy City Atty., New Orleans, for defendant/appellant City of New Orleans.

Russ M. Herman, David J. Calogero, Herman, Herman, Katz & Cotlar, New Orleans, for defendant/appellant Mrs. Ralph C. Lally, II.

Victoria Lennox Bartels, Wessel, Bartels & Ciaccio, New Orleans, for plaintiff/appellee Lakeshore Property Owners Asso.

Frank Rabito, New Orleans, La. in pro. per.

Before SCHOTT, LOBRANO and WILLIAMS, JJ.

LOBRANO, Judge.

This appeal arises out of a dispute between Ralph C. Lally, II (Lally) and the Lakeshore Property Owners Association (LPOA) and Frank Rabito (Rabito) over the Board of Zoning Adjustments' (BZA) November 12, 1982 grant to Lally of a variance from minimum rear yard and height requirements imposed under the West Lakeshore Subdivision Building Restrictions and the Comprehensive Zoning Ordinance of the City of New Orleans.

This variance allowed Lally to construct an addition to his 200 Lakeshore Parkway residence. The LPOA and Rabito appealed the BZA decision to the Civil District Court for the Parish of Orleans pursuant to the provisions of La.R.S. 33:4727.

On December 11, 1984, Ralph C. Lally, II was killed in an automobile collision and his wife, Mrs. Ralph C. Lally, II was substituted as the real party defendant pursuant to Louisiana Code of Civil Procedure Article 801.

On January 29, 1985, the Civil District Court for the Parish of Orleans, Honorable Steven R. Plotkin, rendered judgment reversing the BZA decision to grant the variance and ordered Mrs. Lally to remove the addition to her 200 Lakeshore Parkway residence. From this judgment Mrs. Lally appeals.

FACTS:

On June 28, 1982, Mr. & Mrs. Ralph C. Lally, II purchased a residence at 200 Lakeshore Parkway, located in the West Lakeshore Subdivision of the City of New Orleans. When it was originally subdivided by the Orleans Parish Levee Board, in order to preserve the value, beauty and integrity of the area, a set of title restrictions affecting the entire subdivision, including 200 Lakeshore Parkway, was created and recorded. The record clearly reveals that the Act of Sale by which Lally acquired title to the property reflects the existence of the title restrictions dated February 29, 1952, as amended, May 2, 1956 and properly registered in the Conveyance records of the Parish of Orleans.

These restrictions place limits upon the height of construction and also require certain minimum rear, front and side yard measurements. The Comprehensive Zoning Ordinance for the City of New Orleans also provides restrictions concerning the permissible height of structures as well as minimum rear, front and side yard measurements in the subject area.

On September 10, 1982, Lally submitted to the Orleans Parish Levee Board (OPLB) plans for a proposed addition to the residence. It was then, and still is, the policy of the Department of Safety and Permits (DSP) for the City of New Orleans to require an owner of property in the West Lakeshore Subdivision to obtain prior approval of the OPLB verifying compliance with the title restrictions as a condition precedent to obtaining a permit for construction.

By his own admission, Lally was made aware at the time of submitting his plans to the OPLB of the violations of the title restrictions contained in his proposed plans. Lally obtained the approval of the OPLB by agreeing to change his plans to conform with the title restrictions. The required change entailed moving the addition an additional nineteen (19) feet off the rear property line. As evidence of his agreement to comply, Lally wrote upon the plans he submitted to OPLB the following:

"Addition to existing house will be moved to comply with Lakeshore building restrictions."

Lally signed and dated this statement September 10, 1982. The approval letter was then issued to Lally by the OPLB conditioned upon Lally's abiding by the agreement outlined in the statements so written upon the plans of the addition.

After obtaining the conditional approval of the OPLB, Lally's builder Allen Bourgeois, on September 13, 1982, applied for a building permit with the Department of Safety and Permits. The plans submitted contained the above quoted statement signed by Lally indicating his intention to move the construction back an additional nineteen (19) feet off the rear property line. Lally was issued a permit by the DSP upon the basis of the plans as modified.

On September 16, 1982, Lally began construction. On October 7, 1982, the DSP issued to Lally a "Notice of Zoning Ordinance Violations". Lally had, in fact, followed the original plans without making the agreed upon changes to bring the addition into compliance with both the title restrictions and the zoning ordinance. The violation of the title restrictions involved construction nineteen (19) feet beyond and into the minimum required rear yard of twenty (20) feet. Violations of the Zoning Ordinance involved not only the encroachment on the required rear yard, but also a four (4) foot excess over the maximum twenty (20) foot height limitation. On October 8, 1982, the DSP issued to Lally a "Cease and Desist Order". Lally then filed an application for variance with the BZA. A hearing was held on November 8, 1982. The LPOA, thru its president, James Fried, Jr., and Frank Rabito appeared at the hearing to oppose the application.

Following the hearing, the BZA granted the variance with slight modifications. In its reasons for judgment, the Board stated only that there was "sufficient evidence" upon which to base their findings on each of the points required by the Comprehensive Zoning Ordinance. The BZA did not make specific findings of fact with respect to those points.

Aggrieved by the decision of the BZA to grant the variance, the LPOA and Rabito filed an Application for Writs of Review with the Civil District Court for the Parish of Orleans on December 7, 1982, pursuant to La.R.S. 33:4727.

After an initial briefing and hearing on the Application for Writs of Review, judgment was rendered granting to each side the right to take additional evidence by deposition because the trial court felt the "informality" of the proceedings before the BZA required that each side be given the opportunity to present its evidence. The LPOA and Rabito secured the depositions of Ralph C. Lally, II; Paul May, Zoning Administrator of the Department of Safety and Permits of the City of New Orleans, Earl Magner, chief engineer of the Orleans Parish Levee Board; Robert B. Anderson, the civil engineer hired by Lally to seal his approval of the plans.

The hearing on the Writs of Review was held December 10 and December 20, 1984. On January 29, 1985, judgment was rendered reversing the decision of the BZA to grant the variance as arbitrary, capricious and not based on sufficient evidence. The district court found Lally misrepresented facts before the BZA, acted in bad faith and failed to prove compliance with the nine (9) legal requirements necessary to obtain a variance, except that the addition did not increase the density of the area. The district court ordered Mrs. Lally to remove the addition from her 200 Lakeshore Parkway residence. From this judgment both Mrs. Lally and the City of New Orleans have appealed asserting the following specifications of error:

1) The district court erred by reopening the case for the taking of depositions under the authority of La.R.S. 33:4727.

2) The district court committed error in finding that Lally's alleged misconduct was not before the Board of Zoning Adjustments.

3) The district court committed error in finding that Lally practiced fraud and deception upon the Orleans Parish Levee Board and the Department of Safety and Permits in obtaining his building permit.

4) The district court erred in exceeding the proper scope of review or evidence adduced at the hearing before the Board of Zoning Adjustments and in overturning the findings of the Board that all nine (9) standards for variance had been met.

5) The district court erred in failing to find that the Lakeshore Property Owners Association and Rabito have allowed repeated violations of the same building restrictions sought to be enforced go unrestrained, and therefore under the "clean hands" doctrine should not have been allowed the relief sought.

6) In the alternative, the district court erred in its judgment rendered January 29, 1985, ordering Mrs. Lally to remove the addition rather than bring it into compliance.

SPECIFICATION OF ERROR 1:

La.R.S. 33:4727(E)(4) specifically authorizes the Court, in its own discretion, to entertain additional evidence whenever the Court is of the opinion that it is warranted. We have reviewed the record of the hearing before the BZA and are in agreement with the trial court that additional evidence was not only proper, but necessary in this case. The "hearing" before the BZA contains no evidence other than statements made by persons or their representatives who either opposed or supported the requested variance. We find no abuse of discretion by the trial court in this regard.

Mrs. Lally also asserts that the decision by the Court to take the additional evidence by way of deposition rather than live testimony was error. La.R.S. 33:4727(E)(4) neither prohibits nor mandates that the additional evidence be taken by deposition. Although the question is arguable, we need not reach a conclusion as Lally failed to object to the taking of depositions at the time of the order, and as such, waived the right to any appeal which might be based on such alleged error. The law of this court has always required that parties litigant who consent to the taking of...