ROSEMARY LEDET, Judge.
This is a zoning dispute. The property owner, Cheryl Ellsworth, made an after-the-fact request for a rear yard setback
Ms. Ellsworth owns property located at 1311-1313 Vignaud Street in New Orleans, Louisiana (the "Property"). Pursuant to the City of New Orleans Comprehensive Zoning Ordinance ("CZO"), the Property is subject to a twenty-foot rear yard setback requirement.
On March 14, 2011, Ms. Ellsworth obtained a permit from the Department of Safety and Permits to "remove and replace sheetrock wherever necessary, and remove window and replace with recessed door." ("Permit One"). Permit One did not allow for exterior or structural work. Nor did it allow for demolition. Nonetheless, in March and April 2011, Ms. Ellsworth commenced the demolition of more than one half of the structure, including the protruding rear room. On March 28, 2011, a stop work order was issued for exceeding the scope of the permitted work.
On May 10, 2011, Ms. Ellsworth obtained a second permit to construct a camelback addition and a rear porch on the Property. ("Permit Two"). On August 17, 2011, the Department of Safety and Permits issued a stop work order for exceeding the scope of Permit Two; the reason given for the stop work order was as follows:
On August 22, 2011, the Department of Safety and Permits issued a "Referral for Action," which referred Ms. Ellsworth to the BZA for a waiver of "rear yard setback existing 15'-proposed 10.'"
On January 25, 2012, the Department of Safety and Permits allowed Ms. Ellsworth to "dry in" the walls and roof of the house to prevent further damage to the interior.
On March 14, 2012, Ms. Ellsworth applied to the BZA for a variance. Her variance application listed the waiver amount as "10'" and the purpose of the variance as to match the pre-existing shed and identical set-back to identically built structure next door. Her variance application was considered at the BZA's May 14, 2012 meeting. At that meeting, the BZA
At the May 14, 2012 BZA meeting, the Board was presented with letters, affidavits, and testimony from Ms. Ellsworth's neighbors in opposition to the variance request. After hearing arguments from Ms. Ellsworth, in support, and her neighbors, in opposition, of the variance request, the BZA determined that all nine variance criteria were not met. The BZA thus denied Ms. Ellsworth's variance request.
Ms. Ellsworth appealed the BZA's decision to the district court and applied for a writ of certiorari to review the BZA's decision. In her appeal and petition for writ of certiorari to the district court, Ms. Ellsworth joined as defendants the City and the BZA. Mr. Davas filed a petition to intervene and to unite with the defendants, the City and the BZA. Mr. Davas averred that his interest in the matter was his ownership of property adjacent to Ms. Ellsworth's property. He further averred that he would be negatively impacted by the granting of the variance. Ms. Ellsworth did not oppose the intervention, which the district court granted.
The parties filed cross motions for summary judgment, which the district court denied. The parties also moved to present additional testimony outside the record pursuant to La. R.S. 33:4727(E)(4). Finding additional testimony unnecessary for proper disposition of this matter, the district court denied the motion. At the outset of the hearing on the merits, the district court provided the following history of the case to put on the record of the appeal:
Following arguments from the parties, the district court found in Ms. Ellsworth's favor and rendered judgment reversing the BZA's decision and granting Ms. Ellsworth's request for a ten foot variance pursuant to her March 14, 2012 application. The district court, following the BZA staff's report, also ordered that "[t]he applicant shall meet all life-safety requirements as required by the Department of Safety and Permits." The district court provided the following reasons for judgment:
From this decision, the City, the BZA, and Mr. Davas appeal.
The jurisprudence has recognized that "the decisions of the BZA, while subject to judicial review under La. R.S. 33:4727(e), are subject to a presumption of validity and are subject to judicial review only as to whether they are arbitrary, capricious or an abuse of discretion." French Quarter Citizens For Preservation of Residential Quality, Inc. v. New Orleans City Planning Comm'n, 99-2154, p. 3 (La.App. 4 Cir. 4/12/00), 763 So.2d 17, 18-19 (citing Curran v. Board of Zoning Adjustments, 90-1441 (La.App. 4 Cir. 04/16/91), 580 So.2d 417, 418; Lake Forest Inc. v. Board of Zoning Adjustments of City of New Orleans, 487 So.2d 133, 135 (La.App. 4th Cir.1986); Cross v. City of New Orleans, 446 So.2d 1253, 1255 (La.App. 4 Cir.1984)). The jurisprudence has further recognized that "[t]he reviewing court may not simply substitute its own judgment for that of the BZA." Id. The jurisprudence has still further recognized that it "`is not within the province of the appellate court to second guess a zoning decision that appears to have been based on appropriate and well-founded concerns for the public.'" Toups v. City of Shreveport, 10-1559, pp. 5-6 (La.3/15/11), 60 So.3d 1215, 1218 (quoting TSC, Inc. v. Bossier Parish Police Jury, 38,717 (La.App. 2 Cir. 7/14/04), 878 So.2d 880).
"The purpose of a variance is to provide relief from the literal terms of a zoning ordinance which, if strictly applied, would deny a property owner all beneficial use of his land and thereby amount to confiscation." State ex rel. Maple Area Residents, Inc. v. Board of Zoning Adjustments, 365 So.2d 891, 894 (La.App. 4th Cir.1978) (Lemmon, J., concurring) (citing 2 Anderson, AMERICAN LAW OF ZONING § 14.02 (1968)). The Comprehensive Zoning Ordinance provides nine criteria to be applied by the BZA in authorizing a variance. CZO, Art. 14, § 14.6.4, (1)-(9).
In this case, the record reflects that the BZA considered all nine criteria and determined that all the criteria were not met. Reversing the BZA, the district court reasoned that "[t]he BZA staff report in the record reflects no detriment to the public welfare or injury to other property in the neighborhood in which the property is located." The district court thus found that Criteria (8) was met; Criteria (8) provides: "[t]he granting of the variance will not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located." CZO, Art. 14, § 14.6.4(8).
The appellants contend that the district court, in finding Criteria (8) was met, ignored the substantial evidence presented by the neighbors regarding the negative effects of granting the variance request. According to the appellants, the neighbors established that Ms. Ellsworth's newly-constructed house "out-sizes the surrounding properties and looms over the neighboring yards, blocking access to light and an open view." The appellants further note that "[d]ue to [Ms. Ellsworth's] over-sized new construction and its loss of a Victorian appearance, ... [the] neighbors testified that they feared that [Ms.] Ellsworth's construction has decreased the value of their own properties." The appellants still further note that the Louisiana Supreme Court in Toups, supra, reaffirmed the principle that citizen testimony is significant in zoning decisions. The appellants thus submit that the district court erred in finding Criteria (8) was met. We agree.
As noted, the district court, in its reasons for judgment, relied upon the BZA staff report. The BZA staff report was written before the BZA hearing. As we have noted, a BZA staff report is "preliminary in nature and essentially does little more than to summarize the issue for the Board. It is only one consideration the Board uses in making its decision." McPherson v. City of New Orleans Board of Zoning Adjustments, 04-1129 (La. 4 Cir. 5/11/05), 902 So.2d 573 (unpub.). Regardless, the BZA staff report pertaining to Ms. Ellsworth's request expressly noted that "the staff believes the request partially satisfies the nine criteria as they pertain to the requested variance." The staff report thus did not conclude that all nine criteria were met as required for the BZA to grant a variance.
In addition to the staff report, the BZA received an abundance of testimony and evidence from Ms. Ellsworth's neighbors. The public opinion voiced by her neighbors is a valid consideration that the BZA is entitled to consider in ruling on a variance request. Toups, supra. The jurisprudence has long recognized that "`expressions of opinion made by citizens to a legislative body serve as a manner by which the legislative body learns the will of the people and determines what benefits the public good.'" Toups, 10-1559 at p. 5, 60 So.3d at 1218 (quoting King v. Caddo Parish Commission, 97-1873, p. 16 (La.10/20/98), 719 So.2d 410, 419 (quoting Four States Realty Co. v. City of Baton Rouge, 309 So.2d 659, 666 (La.1974))). In this case, one neighbor's letter to the BZA summarized the evidence in opposition to the variance request as follows: "[Ms. Ellsworth's newly-constructed] structure as is, is intrusiveness of the adjacent property owner's privacy, has caused decreased property values of the adjacent and surrounding properties, and a potential fire
Another criteria indirectly mentioned in the district court's reasons for judgment is Criteria (4), which provides that "[g]ranting 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." CZO, Art. 14, § 14.6.4(4). The district court states that "[t]he record reflects properties adjacent to Ms. Ellsworth's property have similar encroachments into the rear yard area ranging from 0' to 15.'" The district court thus concludes that the BZA's ruling was arbitrary and capricious in that "its reasons for denial are inconsistent with the neighboring properties."
In relying on Criteria (4), however, the district court failed to recognize that the other neighboring properties, referred to in the BZA staff report, have different yard depths and apparently have legal nonconforming uses. In contrast, as discussed elsewhere, the Property lost its nonconforming use when Ms. Ellsworth demolished her original five foot encroachment without a permit. The district court's finding that the surrounding properties have similar encroachments thus is not supported by the record.
Regardless, even assuming, arguendo, that Criteria (4) was met, there is no evidence in the record establishing the other eight criteria, especially Criteria (8), all were met. See Tolis v. Cooper, 522 So.2d 594 (La.App. 1st Cir.1988) (rejecting similar argument in support of an after-the-fact request for a side yard setback variance).
In sum, we cannot conclude, based on the record before us, that the BZA was arbitrary, capricious, or abused its discretion in finding that all nine variance criteria were not met.
Ms. Ellsworth asserts three independent grounds — not dependent on the variance criteria — in support of her argument that the district court correctly found she was entitled to the variance; to wit: (i) irregularities in BZA proceeding, (ii) the Special Yard exception, and (iii) the vested right doctrine. We separately address each of the three independent grounds.
Ms. Ellsworth cites Gertler v. City of New Orleans, 346 So.2d 228 (La.App. 4th Cir.1977), for the proposition that the applicable standard of review includes determining if the BZA's decision is "supported by substantial and competent evidence adduced in proceedings which are regular and orderly." Id. She contends that the BZA's proceeding in this case was fraught with irregularities and thus failed to satisfy that standard. She contends that the BZA improperly altered the Board of Safety and Permits "Referral for Action," which stated that she only needed a five foot waiver of the rear yard setback. She further contends that given the BZA considered an "illegally altered waiver request," the district court was within its discretion to ignore the BZA's decision and to substitute its decision for that of the BZA.
The gist of Ms. Ellsworth's contention is that the BZA erred in finding that she lost her nonconforming use status for the original five foot encroachment. Both the facts and the law belie her contention. Factually, the record reflects that Ms. Ellsworth requested, in the Variance Application that she completed on March 14, 2012, a ten foot waiver (variance);
Legally, Ms. Ellsworth's contention that the BZA lacked the authority to override the Department of Safety and Permits determination, allegedly set forth in its Referral for Action, that she did not lose her nonconforming status is not persuasive. Under the CZO, a demolition of a nonconforming structure results in the loss of the nonconforming use status.
Ms. Ellsworth next contends that, regardless of whether the nine variance criteria all were met, she is entitled to a ten foot variance under the Special Yard
The Board may grant the following yard exceptions:
Ms. Ellsworth failed to raise the Special Yard Exception before the BZA. Although she raised the exception before the district court, the district court did not address it in its reasons for judgment. In support of her contention that it is appropriate for this court nonetheless to consider the exception on this appeal, Ms. Ellsworth cites this court's unpublished decision in McPherson v. City of New Orleans Board of Zoning Adjustments, 04-1129 (La.App. 4 Cir. 5/11/05), 902 So.2d 573 (unpub.).
In the McPherson case, both the district court and this court considered the Special Yard Exception, despite the applicant's failure to raise it before the BZA. Agreeing with the district court, this court cited the Special Yard Exception as additional support for affirming the BZA's decision to grant a variance. The record in the McPherson case supported the finding that all nine variance criteria were met. This court, like the district court, found the record additionally supported a finding that the Special Yard Exception applied because the exact rear setback of the abutting property was undisputed. Neither of those circumstances is present in the instant case. In this case, the record — contrary to the district court's conclusion and in accord with the BZA's conclusion — does not support a finding that all of the nine variance criteria were met. Nor is the exact rear yard setback of the abutting property undisputed. Ms. Ellsworth's reliance on the McPherson case is thus misplaced.
Ms. Ellsworth's attempt to present new evidence on appeal in support of the applicability of the Special Yard Exception is misplaced. The jurisprudence is well settled that this court's review is limited to the evidence in the record. See Miccol Enterprises, Inc. v. City of New Orleans, 12-0864, pp. 6-7 (La.App. 4 Cir. 12/19/12), 106 So.3d 746, 750-51 (noting that "[a] court of appeal is a court of record, which must limit its review to evidence in the record before it" and citing Miller v. Crescent City Health Care Center, 08-1347, p. 7 (La.App. 4 Cir. 5/28/09), 24 So.3d 891, 898 (Tobias, J., concurring in part and dissenting in part) (citing La. C.C.P. art. 2164)).
Ms. Ellsworth's final argument, which the district court accepted, is that she "justifiably relied, to her detriment, on the building permits issued allowing construction of the porch and camelback addition with a balcony." Quoting from St.
On appeal, the City contends that Ms. Ellsworth did not have a vested right in the addition to the Property because her reliance on the permit allowing the new construction is unjustified. In support, the City cites jurisprudence standing for the proposition that no such property right vests when the reliance is unjustified based on the applicant's own actions. See Pailet v. City of New Orleans, Dep't of Safety and Permits, 433 So.2d 1091, 1096 (La.App. 4th Cir.1983); see also Parish of Jefferson v. Davis, 97-1200 (La.App. 5 Cir. 6/30/98), 716 So.2d 428, 433-34. The City contends that Ms. Ellsworth cannot justifiably rely on Permit Two because it was granted based on misrepresentations and because she exceeded the scope of the permit.
The Department of Safety and Permits issued Permit Two based on documentation and site plans submitted by Ms. Ellsworth that were incorrect in at least the following two respects: (1) failing to disclose that any portion of the structure already had been demolished, and (2) representing that the new construction would not expand the footprint of the Property.
In finding the vested rights doctrine inapplicable, we further note that the doctrine "applies by its own terms only to arbitrary revocation of a valid building permit," and that "[n]othing in the record gives the [property owner — here Ms. Ellsworth] the right to build a structure that violates the City's Comprehensive Zoning Ordinance." St. Raymond, 769 So.2d at 569-70 (Waltzer, J., dissenting). We further note that Permit Two, on its face, expressly admonishes that "THIS PERMIT CONVEYS NO RIGHT TO VIOLATE ANY PROVISION OF THE NEW ORLEANS AMENDMENTS TO THE STANDARD BUILDING CODE OR THE COMPREHENSIVE ZONING ORDINANCE." Accordingly, the district court's finding that Ms. Ellsworth justifiably relied on the permits she was issued is not supported by the record; and the district court's reliance on the vested rights doctrine is misplaced.
In sum, none of Ms. Ellsworth's three independent grounds for maintaining the district court's decision is persuasive. As noted at the outset, we reverse the district court's decision and reinstate the BZA's decision because the BZA reviewed the required nine variance criteria, because the record contains sufficient evidence to
For the forgoing reasons, the judgment of the district court is reversed; and the decision of the Board of Zoning Adjustments is reinstated. Ms. Ellsworth's right to reapply to the Board of Zoning Adjustments to seek a variance based on the Special Yard Exception is reserved.
CZO, Art. 14, § 14.6.4, (1)-(9).
Tolis, 522 So.2d at 599.