Merrihue v. St. Charles Parish Planning & Zoning Dept.

• Decision Date: 14 October 1986
• Docket Number: No. 86-CA-199,86-CA-199
• Citation: 496 So. 2d 1232
• Court: Court of Appeal of Louisiana — District of US
• Parties: H.J. MERRIHUE v. ST. CHARLES PARISH PLANNING & ZONING DEPARTMENT.

Page 1232

496 So.2d 1232

H.J. MERRIHUE v.ST. CHARLES PARISH PLANNING & ZONING DEPARTMENT.

No. 86-CA-199.

Court of Appeal of Louisiana Fifth Circuit.

Oct. 14, 1986.

Writ Denied Dec. 5, 1986.

Leon C. Vial, III, Julie Burke, Hahnville, for H.J. Merrihueplaintiff-appellee.

G. Don Irby, Director of Legal Services of St. Charles Parish, Boutte, for St. Charles Parish Planning and Zoning Dept.defendant-appellant.

Before CHEHARDY and KLIEBERT, JJ., and J. BRUCE NACCARI, J. Pro Tem.

J.BRUCE NACCARI, Judge Pro Tem.

This is a zoning case.From a decision in favor of the plaintiff landowner and against the defendant, St. Charles Parish Planning and Zoning Department, the defendant has appealed.

The plaintiff, H.J. Merrihue, owns a plot of approximately six acres in St. Rose, St. Charles Parish, upon which he installed a house trailer sometime prior to 1981, when the St. Charles Parish Zoning Ordinance was adopted.Early in 1985he began construction of an addition to the trailer without applying for a permit.In March the Department notified him that he was in violation of the Parish Zoning Ordinance for having no permit and for building within the ten feet side yard setback requirement for A-1 Agricultural Zoning.

Merrihue then applied for a variance.A neighbor appeared at the hearing to oppose the building, alleging that a portion of the overhang of the new roof was three feet from her wooden back fence.The Board of Zoning Adjustments denied the variance because of the opposition and because of a possible fire hazard.Merrihue reapplied after Mrs. Gaude, the neighbor, notified the Board that she withdrew her objection.The Board denied the variance after another hearing and ordered Merrihue to remove the addition within thirty days.Merrihue filed suit for an injunction, which was granted on December 19, 1985 after a trial.This appeal followed.

The issues raised by the Department are: whether the trial court abused its discretion in substituting its own judgment for that of the Board; whether it correctly applied a "reasonableness test" in determining whether the Board should grant the variance; and whether the plaintiff carried his burden of proof in showing that the Board was arbitrary, capricious and abused its discretion.

A recent statement of the appropriate standard of review for a decision of a zoning board appears in Lakeshore Property v. City of New Orleans, 481 So.2d 162(La.App. 4th Cir.1985), writ denied484 So.2d 674(La.1976), at 167:

"While it is true that the actions of the BZA are afforded a presumption of regularity and a court should not merely substitute its own judgment for that of the Board, Phillips v. Board of Zoning Adjustments of City of New Orleans, 197 So.2d 916(La.App. 4th Cir.1967), this Court has consistently held that the actions of the Board are subject to judicial review and must fall within the limited authority granted to the Board by law and must be based upon sufficient and competent evidence.State ex rel Pitts v. Board of Zoning Adjustments, 327 So.2d 140(La.App. 4th Cir.1976);State ex rel Korns v. Board of Zoning Adjustments of New Orleans, 223 So.2d 505(La.App. 4th Cir.1969);State ex rel Phillips v. Board of Zoning Adjustments, 197 So.2d 916(La.App. 4th Cir.1967)."

Also in Cross v. City of New Orleans, 446 So.2d 1253(La.App. 4th Cir.1984), writ denied449 So.2d 1359(La.1984), the court said at 1255:

"This court repeatedly has held that a prima facie presumption of validity attaches to the acts of the Board of Zoning Adjustments.A reviewing court cannot substitute its own judgment; it cannot interfere absent a showing by the appellant or relator that the Board was arbitrary and capricious or abused its discretion.Gertler v. City of New Orleans, 346 So.2d 228(La.App. 4th Cir.1977), writ ref'd., 434 U.S. 1068, 98 S.Ct. 1248, 55 L.Ed.2d 770(1978);Roy v. Kurtz, 357 So.2d 1354(La.App. 4th Cir.1978);State ex rel Maple Area Residents v. Board of Zoning Adjustments, 365 So.2d 891(La.App. 4th Cir.1978)...."

The trial judge's tentative reasons for judgment, rendered from the bench, were as follows:

"THE COURT:

I think when somebody somebody [sic] has a piece of property that is nonconforming because of preexisting the zoning and they do an adjustment that is as insignificant as this adjustment, in view of the fact that it's a six-acre piece of property the man is building on, and that the adjustment that he made is perfectly in line with the type of activities that are in the adjacent properties, not the exact kind of thing but it's certainly not out of line with it, there's no lessening of anybody's property value or anything else.In fact, it appears to me that quite the contrary is true, is that if anything, it makes it more pleasing.And I think that the request for such a minor adjustment is reasonable and their refusal is arbitrary and should be overturned."

The separate issues raised by the appellant may be summarized as one: whether the court was correct in finding that the denial of a variance by the Board of Zoning Adjustments was not supported by competent evidence and was arbitrary and capricious.

The person who opposes a zoning board's decision bears the burden of proof that it was arbitrary, capricious and unreasonable and must show that the action bears no relation to health, safety, or general welfare of the public.Christopher Estates v. Parish Etc., 413 So.2d 1336(La.App. 1st Cir.1982).In determining whether it should grant a variance or not, a zoning board has no general rule to follow as to what constitutes a hardship or unusual and practical difficulties sufficient to authorize a variance.It must determine each case on its own merits and consider all relevant factors.State ex rel Maple Area Residents v. Board of Zoning Adjustments, 365 So.2d 891(La.App. 4th Cir.1978).

To clarify our evaluation of the evidence and arguments submitted by both sides we point out that the zoning and setback requirements are different for Merrihue's acreage and the adjoining subdivision lots.Those properties face on Pitre Street but their rear boundaries abut the side of Merrihue's land.The Merrihue property is zoned A-1 Agricultural, requiring a side line setback of ten feet, while the residential lots are zoned R-1 Residential, requiring a rear line setback of only five feet.Merrihue's property is enclosed along the side by a chain link fence.Several of the abutting properties have wooden fences alongside the Merrihue fence.

Merrihue's request was for a variance from ten feet to five feet, as he alleged that the building was five feet from the line.The...