Seeking and Establishing Variances before the Board of Zoning Adjustments, Warehouse District Local Historic District

The Warehouse District Neighborhood Association appealed the trial court’s decision denying its Petition for Judicial Review. On April 11, 2016, the Board of Zoning Adjustments (“BZA”) granted a variance to an architecture firm. The variance concerned the redevelopment of a vacant, five-story building and adjacent parking lot located in the Warehouse District Local Historic District. At issue was a request for a waiver of 55 feet to the maximum height requirement of 125 feet (allowing a building of 180 feet).

Because zoning laws and decisions fall within the legislative function of the state and local municipalities, courts generally afford a presumption of validity to the decisions of zoning boards. The presumption is rebuttable, however, and the purpose of reviewing a BZA decision is to determine whether the evidence establishes a legal basis for the decision or whether the BZA has acted in an arbitrary and capricious manner.

The Comprehensive Zoning Ordinance (“CZO”) allows variances to afford an applicant relief from the requirements of the letter of this Ordinance when unnecessary hardship or practical difficulty exists. Under the CZO, the BZA is to consider the following 9 factors in determining whether to grant a variance:

1. 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.

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 or had 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, structures, or buildings 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 for the property would result in a demonstrable hardship upon the owner, as distinguished from mere inconvenience.
7. 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).

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, or increase substantially the congestion in the public street, or increase the danger of fire, or endanger the public safety.

Here, the BZA staff found that the waiver sought by the architectural firm failed to meet 5 of the variance factors (2, 3, 5, 6, and 7), and recommended that the BZA deny the request for variance. The BZA approved the variance at a subsequent public hearing, concluding that the factors had been met. The BZA staff report is preliminary and only a recommendation. The BZA also considers public opinion, additional testimony, and evidence.

The variance sought was designed to alleviate hardships and special circumstances peculiar to the property, to comply with multiple regulatory agencies, and to provide an appropriate design at the border of a historic neighborhood. The architectural firm submitted: (1) a letter in support of the waiver from the New Orleans Historic Landmarks Commission and Central Business District Historic District Landmarks Commission; (2) a report summarizing the contacts with citizens, neighbors, public agencies, and interested parties, and noting that the height issue was not a concern; (3) emails noting support of the height variance; (4) a letter from a developer and hotel business owner to the BZA noting his approval of the plans; and (5) letters and emails from the developer of the site and owners of nearby businesses. At the public hearing, the BZA heard from numerous persons and all, with the exception of the petitioner, spoke in favor of the variance.

The Louisiana Court of Appeals for the Fourth Circuit affirmed the trial court’s decision to grant the variances. Without the variance, the architects would be deprived of the rights enjoyed by others in the neighborhood. Not being able to build the maximum size permitted by the ordinance would mean losing the tax benefits enjoyed by its neighbors. The property is also unique and presented special conditions and circumstances over which the architects had no control or involvement. The site’s unique nature made it particularly difficult to develop. The variance would not alter the essential character of the neighborhood as the design shifted the bulk of the building away from the historic area, and denying the variance would result in demonstrable hardship given that it would result in losing tax credits. Finally, the motive was not driven by profit given that the project’s size would not be increased by the variance. To the contrary, the variance merely shifted the bulk of the building away from the historic site.

This case is a good example of the importance of being thoroughly prepared when seeking variances before the BZA. With courts give zoning board decisions a presumption of validity, rebutting that presumption can prove to be a difficult task on appeal.

Dupuis and Warehouse District Neighborhood Assoc. v. City of New Orleans through Zoning Board of Zoning Adjustments

Adam P. Sanderson
asanderson@mblb.com