MAUREEN GREER SHERI HILLIS AND MILES TRAPOLIN v. THE CITY OF NEW ORLEANS THROUGH ITS BOARD OF ZONING ADJUSTMENTS (2025)

This is an appeal by the City of New Orleans (hereinafter “the City”) and 2537 Tulane Properties, L.L.C. (hereinafter “2537 Tulane Properties”).¹ Appellants seek review of two trial court judgments: (1) the December 19, 2024 judgment reversing and vacating the approval of seven variances by the Board of Zoning Adjustment (hereinafter “BZA”); and (2) the March 10, 2025 judgment denying Appellants’ motions for new trial. After consideration of the record before this Court and the applicable law, we reverse the December 19, 2024 judgment of the trial court and reinstate the November 17, 2023 decision of the BZA which approved the seven variances requested by 2537 Tulane Properties.

Facts and Procedural History

On July 28, 2023, 2537 Tulane Properties applied to the City of New Orleans for variances from certain requirements of the City's Comprehensive Zoning Ordinance (hereinafter “CZO”) for the construction of a grocery store. The location of the grocery store is comprised of multiple parcels of land located at 2501–2537 Tulane Avenue and 2500–2520 Banks Street. The location occupies nearly an entire city block and is bound by Tulane Avenue, South Rocheblave Street, South Dorgenois Street, and Banks Street. The plan calls for the front of the grocery store to face Tulane Avenue, with a parking lot located primarily along Banks and Dorgenois Streets. The grocery store is located within the MU-1 Medium Intensity Mixed-Use District, governed by CZO Art. 15, and is also subject to the Tulane Avenue Enhancement Corridor Design Overlay and the Historic Urban Corridor Overlay. These designations collectively encourage pedestrian-scaled development, mixed commercial and residential uses.

In its BZA variance application, 2537 Tulane Properties requested the following variances to allow for the construction of the grocery store: (1) front yard setback; (2) front yard build-to line; (3) primary entrance orientation; (4) location of the loading zone; and (5) maximum vehicle parking limitations. As a result of the five variances requested, two additional variances became necessary due to the non-residential parking requests: (1) permitted parking locations; and (2) permitted vehicle parking locations (corner side yard).² To its application, 2537 Tulane Properties attached a supporting memorandum; architectural drawings and plans; photographs; and pre-application documents and correspondence regarding the Neighborhood Participation Program meetings.

In preparation for the public hearing on 2537 Tulane Properties’ seven requested variances, the BZA staff submitted its recommendations. The BZA staff evaluated each of the nine factors, set forth in CZO, § 4.6(F), in its “Impact and Analysis” section in detail.³ The BZA staff recommended that the BZA approve four of the requested variances, subject to four provisos: (1) front yard setback; (2) front yard build-to line; (3) permitted vehicle parking locations (corner side yard); and (4) location of the loading zone. The BZA staff further recommended that the BZA deny three of the requested variances: (1) primary entrance orientation; (2) maximum vehicle parking limitations; and (3) permitted parking locations. On November 13, 2023, the BZA held a public hearing at which it considered 2537 Tulane Properties’ seven requested variances and heard arguments from proponents and opponents of the requests. After extensive discussion, the BZA unanimously approved all seven variances and adopted the four provisos recommended by the BZA staff. The BZA specifically stated that all nine factors under CZO, § 4.6(F) had been satisfied and issued its written Notice of Disposition on November 17, 2023.

In response to the BZA's ruling, several neighborhood residents, Maureen Greer, Sheri Hillis and Myles Trapolin (hereinafter “Neighborhood Residents”), filed a petition for writ of certiorari and judicial review, against the City, in Civil District Court, alleging that the BZA's decision was arbitrary and capricious. Specifically, the Neighborhood Residents alleged that the BZA failed to make adequate findings pursuant to the nine factors outlined in CZO, § 4.6(F); disregarded the BZA staff recommendations; and failed to comply with the open meetings law, La. R.S. 42:11, et seq. The Neighborhood Residents subsequently amended their petition to add 2537 Tulane Properties as a defendant.

At the conclusion of the hearing, the trial court found that the record failed to demonstrate that adequate consideration of the nine variance factors outlined in CZO, § 4.6(F) were satisfied. The trial court further determined that granting the variance as to the permitted vehicle parking locations (corner side yard) violated the open meetings law. By judgment dated December 19, 2024, the trial court reversed and vacated the BZA's approval of the seven variances. Appellants each filed motions for new trial which were denied.⁴ This appeal followed.⁵

Appellate Jurisdiction

Trial courts have original jurisdiction to review decisions of an administrative body, such as the BZA. See Lanaux v. City of New Orleans, Bd. of Zoning Adjustments, 489 So.2d 329, 331 (La.App. 4th Cir. 1986) (“the challenge to the grant of a zoning variance is an action invoking the original jurisdiction of the trial court”); see also Gertler v. City of New Orleans, 346 So.2d 228, 233 (La.App. 4th Cir. 1977); River Oaks-Hyman Place Homeowners Civic Ass'n v. City of New Orleans, 281 So.2d 293, 294 (La.App. 4th Cir. 1973) (“when a [trial] court reviews a decision of an administrative body, it is exercising ‘exclusive original jurisdiction’ ”) (citation omitted). “The purpose of certiorari review by the [trial] court of decisions of boards and quasi-judicial tribunals [such as the BZA] is to ‘determine whether jurisdiction has been exceeded, or to decide if the evidence establishes a legal and substantial basis for the Board's decision.’ ” Esplanade Ridge Civic Ass'n v. City of New Orleans, 2013-1062, p. 3 (La.App. 4 Cir. 2/12/14), 136 So.3d 166, 169 (citation omitted).

Appellate jurisdiction applies to this Court's analysis of trial court rulings concerning the decisions of zoning boards. See River Oaks, 281 So.2d at 294-95. As our Supreme Court indicated, in King v. Caddo Par. Comm'n, 1997-1873, pp. 14-15 (La. 10/20/98), 719 So.2d 410, 418, “[a] reviewing court does not consider whether the [trial] court manifestly erred in its findings, but whether the zoning board acted arbitrarily, capriciously or with any calculated or prejudicial lack of discretion.” We note that “[t]he terms ‘arbitrary and capricious’ mean willful and unreasoning action, absent consideration and in disregard of the facts and circumstances of the case.” Mannino's P & M Texaco Serv. Ctr., Inc. v. City of New Orleans, 2015-0109, p. 3 (La.App. 4 Cir. 8/19/15), 173 So.3d 1186, 1188 (quoting Toups v. City of Shreveport, 2010-1559, p. 3 (La. 3/15/11), 60 So.3d 1215, 1217). With these jurisdictional principles in mind, we consider the merits of the appeal.

Discussion

Appellants assert several assignments of error. However, we find the dispositive issues to be: (1) whether the trial court erred in finding the BZA violated the open meetings law and (2) whether the trial court erred in determining that the BZA's approval of the seven variances was arbitrary and capricious. We first consider the trial court's finding that the BZA violated the open meetings law.

Open Meetings Law

Whether a violation of the open meetings law has occurred is a question of law, subject to a de novo review. Deep S. Ctr. for Env't. Just. v. Council of City of New Orleans, 2019-0774, 2019-0775, p. 7 (La.App. 4 Cir. 2/12/20), 292 So.3d 973, 979 (citation omitted). Appellants argue the trial court erred in finding the BZA violated the open meetings law by approving the variance for permitted vehicle parking locations (corner side yard) pursuant to CZO, § 22.8.A.1.b.iii, as that section refers to residential parking. They argue that it was clear that the BZA considered the variance request as to non-residential parking and thus, reference to CZO, § 22.8.A.1.b.iii was a typographical error in the record; and did not constitute a substantive change regarding consideration of the requested variances.⁶ Conversely, the Neighborhood Residents argue that the BZA's inclusion of the variance for permitted vehicle parking locations (corner side yard) was not properly identified in the BZA's November 13, 2023 agenda, and as such, the notice requirements of the open meetings law were not met. In nullifying the granting of the variance, the trial court reasoned that “the variance granted in Disposition 087-23 was not requested, discussed, nor voted on. And while I believe it is most likely a typographical error regarding [CZO, §] 22.8.A.1.b.iii, no correction or attempt to correct has been made in the year since [the] signing of the disposition.”

La. R.S. 42:14(A) provides that “[e]very meeting of any public body shall be open to the public unless closed pursuant to R.S. 42:16, 17, or 18.” Louisiana's open meetings law ensures that “public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy.” La. R.S. 42:12(A). Its purpose is to protect citizens “from secret decisions made without any opportunity for public input.” Delta Dev. Co. v. Plaquemines Par. Comm'n Council, 451 So.2d 134, 138 (La.App. 4th Cir. 1984). La. R.S. 42:19 requires that all public bodies give written public notice no later than twenty-four hours before a meeting—exclusive of weekends and legal holidays. La. R.S. 42:19(A)(1)(b)(i). The “notice shall include the agenda, date, time, and place of the meeting.” La. R.S. 42:19(A)(1)(b)(ii)(aa). Each agenda item must “be listed separately and described with reasonable specificity.” La. R.S. 42:19(A)(1)(bb).

The trial court determined the BZA violated the open meetings law because the BZA disposition referred to CZO, § 22.8.A.1.b.iii (the residential parking provision) rather than CZO, § 22.8.A.2.b.iii (the non-residential parking provision) regarding the approval of the variance for permitted vehicle parking locations (corner side yard). While acknowledging that this likely was a typographical error, the trial court found that inclusion of the reference to the residential parking provision on the notice indicated an item that was not requested or discussed.

When analyzing the open meetings law, the controlling inquiry is whether the public could reasonably discern the subject matter to be considered. The November 13, 2023 agenda provides the date, time, place of the public meeting and references the non-residential parking provision as one of the variance requests to be considered.⁷ While multiple documents incorrectly cite to the residential parking provision, the BZA staff recommendation also correctly cites to the nonresidential parking provision. It is undisputed that all parties received the BZA staff recommendation prior to the November 13, 2023 meeting. Further, as acknowledged by the Neighborhood Residents, the BZA issued a corrected disposition indicating that its previous approval of the variance for permitted vehicle parking locations (corner side yard) was pursuant to CZO, § 22.8.A.2.b.iii, the non-residential parking provision. A typographical error on the BZA disposition does not vitiate notice when the meeting's date, time, place and agenda otherwise comply with the statute and the public is able to ascertain what is being discussed. The November 13, 2023 agenda contains the statutory requirements and therefore complied with the notice requirements of La. R.S. 42:19. The BZA staff recommendation, which references the non-residential parking provision, coupled with the opposition by the Neighborhood Residents at the public meeting regarding the non-residential parking provision, warrants a finding that the requirements of the open meetings law were satisfied. Accordingly, the trial court erred in nullifying the variance approval for permitted vehicle parking locations (corner side yard) simply because of references to the incorrect section of the CZO. This Court finds the open meetings law was not violated and will next consider the trial court's finding that the BZA was arbitrary and capricious in granting 2537 Tulane Properties’ seven requested variances.

Approval of the Seven Requested Variances

“[T]he 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.” Antunez v. City of New Orleans Bd. of Zoning Adjustments, 2015-0406, p. 2 (La.App. 4 Cir. 2/24/16), 187 So.3d 525, 526 (quoting Ellsworth v. The City of New Orleans, 2013-0084, pp. 6-7 (La.App. 4 Cir. 7/31/13), 120 So.3d 897, 902) (citation omitted). An appellate court “should not second guess the BZA or substitute its own judgment for that of the BZA.” Id. (citation omitted); see also, City of Baton Rouge/Par. of E. Baton Rouge v. Myers, 2013-2011, 2013-2036 p. 6 (La. 5/7/14), 145 So.3d 320, 327-28 (“It is only when an action of a zoning commission is found on judicial review to be palpably unreasonable, arbitrary, an abuse of discretion, or an unreasonable exercise of police power that such action will be disturbed.”) (citation omitted). Moreover, “[w]hen there is room for two opinions, an action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed an erroneous conclusion has been reached.” Vieux Carre Prop. Owners v. City of New Orleans, 2014-0825, p. 6 (La.App. 4 Cir. 4/15/15), 216 So.3d 873, 877–78 (quoting Toups, 2010-1559, pp. 3-4, 60 So.3d at 1217) (citation omitted).

Appellants assert the trial court erred in finding the BZA was arbitrary and capricious in granting the requested variances. They also maintain that the record contains ample evidence supporting the BZA's findings and argue the BZA correctly approved the requested variances after reasonable deliberation. Conversely, the Neighborhood Residents contend the BZA ignored design alternatives and failed to demonstrate that the nine variance factors under CZO, § 4.6(F) were satisfied.⁸ They argue that the BZA staff did not recommend approval of all seven variances and, as such, the BZA's disposition in granting all seven variances was arbitrary and capricious. The trial court agreed with the Neighborhood Residents and determined that the BZA's actions were arbitrary and capricious because the BZA did not provide sufficient evidence that it evaluated each requested variance under the nine factors outlined in CZO, § 4.6(F).

The CZO allows the BZA to grant variances “to afford an applicant relief from the requirements of the letter of this Ordinance when unnecessary hardship or practical difficulty exists.” CZO, § 4.6(A). In deciding whether to grant a variance, the BZA must consider the nine factors set forth in CZO, § 4.6(F). Those factors examine, among other things, whether special site conditions exist; whether literal enforcement would cause hardship; whether granting the variance would alter the character of the neighborhood or harm the public welfare; and whether the request is driven solely by convenience or profit. See O'Brien v. Bd. of Zoning Adjustments for City of New Orleans, 2015-0169, pp. 4-5 (La.App. 4 Cir. 10/7/15), 177 So.3d 738, 740-41 (citation omitted).

At the November 13, 2023 public hearing, the BZA heard from BZA staff members regarding the recommendations; representatives of 2537 Tulane Properties; residents of the neighborhood; and other proponents and opponents of the variances requested. In discussing the recommendation to deny three of 2537 Tulane Properties’ variance requests, the BZA staff noted the need for a variance from maximum vehicle parking limitations. That request resulted in 2537 Tulane Properties’ need for variances regarding primary entrance orientation and permitted parking locations. Thus, according to the BZA staff, a revision in the design of the parking lot would eliminate the need for these three requested variances. We note that the BZA staff recommendation 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.” Antunez, 2015-0406, pp. 3-4, 187 So.3d at 527 (citation omitted). As such, the BZA is not bound to strictly follow the recommendations of the BZA staff.

After thorough review, we find the record contains sufficient evidence to support the BZA's approval of the seven requested variances. All interested parties were provided an opportunity to present at the hearing and the BZA questioned the proponents and opponents of the variances requested. The BZA noted that New Orleans is a vehicular oriented city and that the design of the project must take that issue into consideration. While acknowledging concerns regarding the number of parking spaces, the BZA found that the orientation and conceptualization of the property considers how to maximize parking and maintain the pedestrian design standards of the grocery store location. The BZA's disposition specifically provides, “the Board carefully considered the facts and arguments for and against the application at the public hearing, and after considering the [CZO],․the Board is of the opinion that the weight of the evidence indicates that the approval standards for variances of Article 4, Section 4.6.F of the [CZO] have been met․ .” The trial court determined that the BZA's ruling was arbitrary and capricious because it did not specifically list the analysis of each variance under each of the nine factors outlined in CZO, § 4.6(F). Although the BZA's disposition does not list its analysis of each variance, the disposition nonetheless indicates that the BZA considered the weight of the evidence which it found met the approval standards of CZO, § 4.6(F). The conclusion that the evidence meets the nine factors outlined in CZO, § 4.6(F) is also stated at the November 13, 2023 hearing. Thus, we find the BZA considered the nine factors in weighing all the evidence presented. It is not the role of the trial court to second guess the BZA or substitute its judgment in place of the BZA. See Antunez, 2015-0406, p. 2, 187 So.3d at 526 (citation omitted). The record supports the conclusion that the BZA's actions of evaluating the evidence was exercised honestly and with due consideration and therefore, cannot be arbitrary and capricious. See Vieux Carre Prop. Owners, 2014-0825, p. 6, 216 So.3d at 877-78 (citation omitted). The BZA's decision had a clear factual and rational basis and thus, the trial court's ruling was in error.

Based upon our finding that the trial court erred in reversing the BZA's approval of 2537 Tulane Properties’ seven requested variances, we pretermit discussion of the issues raised in connection with the denial of the motions for new trial.

Decree

For the foregoing reasons, we reverse the December 19, 2024 judgment of the trial court and reinstate the November 17, 2023 decision of the BZA approving the seven variances requested by 2537 Tulane Properties.

REVERSED

FOOTNOTES

1.   The City and 2537 Tulane Properties assert similar arguments, thus for ease of reference, where applicable, we will refer to the parties collectively as “Appellants.”

2.   The seven requested variances appeared as follows on the BZA's November 17, 2023 disposition:i. Article 15, Section 15.3.A.2 Table (15-2) - Front Yard Setback (Maximum)ii. Article 15, Section, 15.3.A.2 - Front Yard Build-to Line (Maximum)iii. Article 15, Section 15.3.B.1.a - Primary Entrance Orientationiv. Article 15, Section 15.3.B.1.g - Location of Loading Zonev. Article 22, Section 22.4.B - Maximum Vehicle Parking Limitationsvi. Article 22, Section 22.8.A.2.b.ii- Permitted Parking Locationsvii. Article 22, Section 22.8.A.1.b.iii - Permitted Vehicle Parking Locations (Corner Side Yard)

3.   CZO, § 4.6(F) provides:The Board of Zoning Adjustments may authorize a variance only when the evidence presented supports a finding that each case indicates all of the following:1. Special conditions and circumstances exist that are peculiar to the land or structure involved and are not generally applicable to other lands or structures in the same zoning district.2. 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.3. The special conditions and circumstances do not result from the actions of the applicant or any other person who may have had an interest in the property.4. Granting the variance requested will not confer on the applicant any special privilege which is denied by this Ordinance to other lands or structures in the same district or similarly situated.5. The variance, if granted, will not alter the essential character of the locality.6. Strict adherence to the regulation by the property would result in a demonstrable hardship upon the owner, as distinguished from mere inconvenience.7. The request for the variance is not based primarily upon a desire to serve the convenience or profit of the property owner or other interested party(s).8. The 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.9. The proposed variance will not impair an adequate supply of light and air to adjacent property, increase substantially the congestion in the public street, increase the danger of fire, or endanger the public safety.

4.   The following motions for new trial were filed: (1) a motion for new trial filed by 2537 Tulane Properties on December 17, 2024; (2) a motion for new trial filed by the City through the BZA on December 19, 2024; and (3) a “restated and re-urged motion for new trial” filed by 2537 Tulane Properties on January 5, 2025.

5.   The City and 2537 Tulane Properties each filed separate motions for a suspensive appeal of the trial court's December 19, 2024 and March 10, 2025 judgments. The matters were lodged as one appeal with this Court.

6.   Note that CZO, § 22.8.A.1.b.iii refers to residential parking. This typographical error appears in multiple places in the record.

7.   The BZA issued two relevant agendas: one for the October 2, 2023 public meeting and another for the November 13, 2023 public meeting. Both agendas were timely posted and listed the requested variances as items for discussion.

8.   The Neighborhood Residents opposed the requested variances, citing parking overflow, architectural scale and pedestrian access.

Judge Tiffany Gautier Chase