3000-3032 St. Claude Ave., LLC v. the City of New Orleans and the New Orleans City Council

3000-3032 ST. CLAUDE AVE., * NO. 2021-C-0139
LLC
*
VERSUS COURT OF APPEAL
*
THE CITY OF NEW ORLEANS FOURTH CIRCUIT
AND THE NEW ORLEANS *
CITY COUNCIL STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2018-05452, DIVISION “I-14”
Honorable Piper D. Griffin, Judge
******
JUDGE SANDRA CABRINA JENKINS
******
(Court composed of Judge Terri F. Love, Judge Edwin A. Lombard,
Judge Sandra Cabrina Jenkins)

Christopher James Kane
John M. Duck
Marshall A. Hevron
ADAMS & REESE LLP
One Shell Square
701 Poydras Street
Suite 4500 One Shell Square
New Orleans, LA 70139

COUNSEL FOR PLAINTIFF/APPELLEE

Sunni J. LeBeouf
Donesia D. Turner
Churita H. Hansell
Shawn Lindsay
Daniel T. Smith
CITY ATTORNEY
1300 Perdido Street,
City Hall—Suite 5E03
New Orleans, LA 70112

COUNSEL FOR DEFENDANTS/APPELLANTS

WRIT GRANTED; RELIEF DENIED

DECEMBER 9, 2021

SCJ
TFL
EAL

Relators/defendants, the City of New Orleans and the New Orleans City

Council (collectively, “the City”), seek review of the district court’s November 20,

2020 judgment, remanding the petition for judicial review, filed by plaintiff, 3000-

3032 St. Claude Ave., LLC, to the City Council for further review and to articulate

the basis of its decision to deny the request for zoning map amendment in Zoning

Docket No. 021-18. Based on our review of this record, and in consideration of

the standard of review for zoning decisions by a legislative body, we find no abuse

of the district court’s discretion in remanding the matter to the City Council.

Consequently, we deny the requested relief.

FACTS AND PROCEDURAL BACKGROUND

In June 2017, plaintiff purchased seven adjacent lots located at municipal

addresses 3000-3032 St. Claude Avenue, in the Bywater neighborhood of New

Orleans. Three of the seven lots purchased by plaintiff are split-zoned, having

more than one zoning classification. The front portions of the three split-zoned

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lots, all fronting on St. Claude Avenue, are zoned HMC-2 Historic

Marigny/Treme/Bywater Commercial District, and the rear portions of the lots,

located within the middle of the block, are zoned HMR-3 Historic

Marigny/Treme/Bywater Residential District.

In December 2017, plaintiff filed two requests with the City Planning

Commission (“CPC”) that were both docketed as Zoning Docket No. 021-18. The

first request sought approval from the City to rezone the rear portions of the three

split-zoned lots from HMR-3 Residential to HMC-2 Commercial, thereby applying

a single zoning designation. The second request sought approval from the City for

the issuance of a conditional use permit for a 37-room hotel complex (the Sun

Yard Hotel) with a restaurant, outdoor bar, and pool/yard area in a HMC-2

Commercial District.

In consideration of the requests, the CPC Staff conducted a study and

prepared a report for the CPC to review prior to holding a public hearing and

making its recommendation to the City Council. See CZO, Art. 4, §§ 4.2C,

4.2.D.3. The CPC Staff report provided a history of the zoning and land use of the

property at issue and the surrounding area; discussed the purpose of the rezoning

request and the potential effect on the adjacent land uses; included detailed

comments from design review staff; considered comments from other

agencies/departments/committees; and reviewed compliance of the proposal with

approval standards for zoning amendments. Ultimately, the CPC Staff report

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recommended approval of both of plaintiff’s requests, subject to twenty-one

provisos.

The CPC held two public hearings, on February 6, 2018 and March 13,

2018, at which the plaintiff’s requests were considered. At both meetings, the CPC

summarized the requests, stated the recommendations of the Staff, and heard

statements from plaintiff, proponents, and opponents. At the conclusion of the

March 13, 2018 meeting, the CPC voted to recommend the City Council deny the

plaintiff’s requests. On March 19, 2018, the CPC issued its report to the City

Council with its recommendation to deny the plaintiff’s requests.

The City Council also held two public hearings on the plaintiff’s zoning

requests. At the April 19, 2018 hearing, the requests received strong opposition

from neighborhood residents and groups in public testimony and written responses.

At the conclusion of the first hearing, the City Council voted to defer a decision on

the requests until May 3, 2018.

Prior to the May 3, 2018 City Council hearing, plaintiff withdrew its second

request for the conditional use permit for the hotel complex. Consequently, at the

hearing, the City Council considered only the zoning amendment request. After

hearing further testimony in support of and in opposition to the zoning amendment

request and considering evidence submitted, the City Council took up

Councilmember Ramsey’s motion to overrule the CPC’s recommendation and

approve the request for zoning amendment. The motion failed by a 2-3 vote.

Thus, the City denied plaintiff’s request in Zoning Docket 021-18.

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On June 1, 2018, plaintiff filed in the district court a petition for judicial

review of the City Council’s denial of the zoning amendment request. Plaintiff

asserted that the City Council’s decision was arbitrary and capricious, lacking any

supporting evidence or reasons for its decision. Additionally, plaintiff sought

reversal of the City Council’s decision and requested that City Council be ordered

to effectuate a zoning map amendment, on the basis that the City Council had a

ministerial duty to grant the request for rezoning.

On June 5, 2020, the district court held a hearing on plaintiff’s petition for

judicial review. At that hearing, the district court noted that the record focused

almost exclusively on the conditional use permit request, which was withdrawn

prior to the vote, and there was little information with reference to the City

Council’s consideration of the zoning amendment issue. At the conclusion of the

hearing, the district court took the matter under advisement and permitted the

parties to file post-hearing briefs to address whether the City Council gave “true

consideration and focus” to the zoning amendment request prior to denying it.

At the November 6, 2020 hearing, the district court heard brief arguments

before rendering judgment. After review of the record and consideration of briefs,

the district court ruled that the matter would be remanded to the City Council “for

further review and clarity as relates to the basis for their decision.” Thereafter, the

district court signed the November 20, 2020 judgment reflecting its ruling.

The City then filed a motion for suspensive appeal of the district court’s

November 20, 2020 judgment. Plaintiff filed an opposition to the City’s motion

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for suspensive appeal, arguing that the district court’s judgment was not final and

appealable. But, the district court granted the City’s motion for appeal. After the

appeal was lodged in this Court, plaintiff filed a motion to dismiss the appeal for

lack of jurisdiction, because the judgment was not final and appealable. On April

9, 2021, this Court converted the City’s appeal to an application for supervisory

writs and denied plaintiff’s motion to dismiss as moot.

The City now seeks supervisory review of the district court’s November 20,

2020 judgment remanding this matter for further review of plaintiff’s request for a

zoning amendment and to provide clarity on its reasons for denying the request.

The City argues that the vote to deny plaintiff’s request for the zoning amendment

was not arbitrary or capricious, or characterized by an abuse of discretion, and,

therefore, the district court erred by remanding plaintiff’s petition for judicial

review for further review and clarity on the City Council’s decision.

STANDARD OF REVIEW
The standard of review in zoning disputes was set forth in Toups v. City of

Shreveport, 10-1559, pp. 3-4 (La. 3/15/11), 60 So.3d 1215, 1217-18, as follows:

Because zoning falls under the jurisdiction of the legislature, courts
will not interfere with their prerogative unless the action is palpably
erroneous and without any substantial relation to the public health,
safety, or general welfare. King v. Caddo Parish Commission, 97–
1873 (La.10/20/98), 719 So.2d 410. The terms “arbitrary and
capricious” mean willful and unreasoning action, absent consideration
and in disregard of the facts and circumstances of the case. However,
when 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.
Four States Realty Co., Inc. v. City of Baton Rouge, 309 So.2d 659,
664 (La.1974).

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Thus, Louisiana courts hold, generally, that the action of legislative body is not

arbitrary or capricious or unreasonable unless it bears no relation to the health,

safety, or general welfare of the public. King, 97-1873, pp. 14-15, 719 So.2d at

418.

Zoning decisions by nature are a legislative function, granted to local

authorities by both Louisiana statute and its constitution. La. R.S. 33:4721; La.

Const. Art. VI, §16. “The presumption of validity attached to zoning ordinances is

a well-established principle of law in Louisiana. It applies to all zoning

ordinances, including piecemeal and spot zoning.” Herman v. City of New

Orleans, 14-0891, p. 8 (La. App. 4 Cir. 1/21/15), 158 So.3d 911, 916. As such,

one who challenges a zoning decision bears the burden to overcome the

presumption of validity.

A challenge to a zoning decision by a legislative body is a de novo

proceeding in the district court. Palermo Land Co., Inc. v. Planning Com’n of

Calcasieu Parish, 561 So. 482, 492 (La. 1990). The issue is whether the result of

the legislative action is arbitrary and capricious, and therefore a taking of property

without due process of law. Id. Whether the zoning decision bears an appropriate

relation to the health, safety, or general welfare is a factual question, which must

be determined from evidence in the record. Id. “If it appears appropriate and well

founded concerns for the public could have been the motivation for the zoning

[decision], it will be upheld.” Id.

In addition, when reviewing decisions of an administrative body, La. R.S.

49:964(G)1 authorizes a district court to affirm an administrative decision by an

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La. R.S. 49:964 provides in pertinent part:

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agency or remand the case for further proceedings. Nola Bourbon, LLC v. City of

New Orleans, 19-0847, p. 3 (La. App. 4 Cir. 1/29/20), 290 So.3d 225, 227–28. In

cases where the an agency’s findings and conclusions could not be reasonably

implied from the record, Louisiana courts have remanded the matter to the agency

for further proceedings or clarity on its decision. See Bell Oaks, Inc. v. Louisiana

Dep't of Health & Hosps., 96-1256 (La. App. 1 Cir. 6/26/97), 697 So.2d 739; Hay

v. S. Cent. Bell Tel. Co., 475 So.2d 1052 (La. 1985); Johnson v. Odom, 470 So.2d

988 (La. App. 1 Cir. 5/29/1985).

DISCUSSION

In seeking review of the district court’s judgment remanding this zoning

matter to the City Council for further review and clarity on its denial of plaintiff’s

zoning amendment request, the City asserts that it gave proper consideration to the

plaintiff’s request and that the decision to deny it was not arbitrary or capricious.

The City argues that the district court erred by not upholding the City Council’s

decision and dismissing the petition for judicial review.

In opposition, plaintiff refutes the City’s assertion that the City Council gave

due consideration to the zoning amendment request. Plaintiff notes that the

opposition testimony presented at the May 3, 2018 hearing overwhelmingly

targeted the withdrawn conditional use permit request. Plaintiff points out that the

A. (1) …a person who is aggrieved by a final decision or order in an adjudication
proceeding is entitled to judicial review under this Chapter whether or not he
has applied to the agency for rehearing, without limiting, however, utilization
of or scope of judicial review available under other means of review, redress,
relief, or trial de novo provided by law. …
G. The court may affirm the decision of the agency or remand the case for further
proceedings. The court may reverse or modify the decision if substantial
rights of the appellant have been prejudiced because the administrative
findings, inferences, conclusions, or decisions are …

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district court noted its concern that the City Council was not focused on the issue

of the zoning map amendment.

At the June 5, 2020 hearing, the district court stated:

But why wouldn’t I remand this, I guess, Mr. Lindsay [City
attorney], because what I’m hearing are issues relative to what was
considered to the extent that there was clear opposition to the hotel
[conditional use permit] and there was clearly kind of a melding of the
conversation regarding the building of a hotel and the fixing of what
people perceived as a problem regarding the spot zoning issue, and as
I appreciate it Mr. Kane’s client [plaintiff] said okay, we shelved the
hotel, just fix the zoning, just fix the zoning, and what I see in the
briefs is kind of still a melding conversation that focuses on the
conversation in the community about not having this hotel and a hotel
would be problematic but does not focus on the most singular issue of
whether or not the zoning should be fixed. I don’t see that as the
focus, I see that as a conversation. Don’t get me wrong, I see some
conversation but I don’t see the kind of focus that needs to be placed
and I’m not, I guess my issue becomes, Mr. Kane, I’m making sure
you understand, I do have an issue, that I question whether it rises to
the level of arbitrary and capricious or rises to the level of me saying,
hey, I don’t know that I have enough information in front of me to
appreciate what the Council really did with reference to the
potential problem regarding the zoning issue, Mr. Lindsay, you
understand where I’m at, and perhaps you can point me somewhere
where I can get clarity, but the clarity doesn’t exist based on what I’ve
reviewed.

Prior to rendering its judgment on November 6, 2020, the district court again

stated its concern that the record lacked sufficient clarity to determine whether the

City Council was considering solely the zoning map amendment request, without

confusion of the issue from opposition to the withdrawn conditional use permit for

a hotel. Due to the lack of clear reasons for the City Council’s decision on the sole

request for a zoning map amendment, the district court remanded the matter for the

City Council to provide a clear record for judicial review of its decision.

Thus, the district court did not reach the merits of the petition for judicial

review, make any findings of fact from the record, or make a determination as to

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whether the City Council’s decision was arbitrary or capricious. The district court

found only that the record lacked sufficient clarity to determine the reasoning and

reasonableness of the City Council’s decision.

Upon our review of the City’s writ and the record before us, we find no

abuse of discretion in the district court’s ruling. As noted by the district court, the

record of the City Council hearings lacks clarity on the sole issue of the zoning

amendment request. Moreover, in its writ application, the City has not shown that

there is sufficient record evidence that would allow this Court to make a ruling on

the petition for judicial review.

CONCLUSION

Based on our review of the record, we find no abuse of discretion in the

district court’s November 20, 2020 judgment remanding the matter to the City

Council for further review and to articulate the basis for its denial of the zoning

map amendment in Zoning Docket 021-18. The relief requested by the City is

denied.

WRIT GRANTED; RELIEF DENIED

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