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

3000-3032 ST. CLAUDE * NO. 2022-CA-0813
AVENUE, LLC
*
VERSUS COURT OF APPEAL
*
THE CITY OF NEW ORLEANS FOURTH CIRCUIT
AND THE NEW ORLEANS *
CITY COUNCIL STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2018-05452, DIVISION “B”
Honorable Richard G. Perque, Judge
******
Judge Dale N. Atkins
******
(Court composed of Chief Judge Terri F. Love, Judge Paula A. Brown, Judge Dale
N. Atkins)

Christopher J. Kane
John M. Duck
Marshall A. Hevron
Erica P. Sensenbrenner
ADAMS AND REESE LLP
701 Poydras Street
Suite 4500
New Orleans, LA 70139

COUNSEL FOR PLAINTIFF/APPELLEE, 3000-3032 St. Claude Avenue,
LLC

Shawn Lindsay
Corwin St. Raymond
Kevin C. Hill
Donesia D. Turner
CITY ATTORNEY’S OFFICE
1300 Perdido Street
City Hall - Room 5E03
New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLANT, The City of New Orleans
and the New Orleans City Council

REVERSED AND RENDERED JUNE 22, 2023

DNA

TFL

PAB
This is a zoning matter. In this appeal, the New Orleans City Council (“City

Council”) and the City of New Orleans (collectively the “City”) seek review of the

trial court’s October 12, 2022 judgment, which held that the City Council acted

arbitrarily, capriciously, and without consideration of the facts and circumstances

regarding Zoning Docket No. 021-18. The trial court ordered the City Council to

approve Zoning Docket No. 021-18, a zoning map amendment request by 3000-

3032 St. Claude Avenue, LLC (“the LLC”), and to adopt an ordinance to effectuate

the map amendment request by the LLC. Upon review, we find that the trial court

erred in its determination that the City Council acted arbitrarily and capriciously in

its denial of the LLC’s request for a zoning map amendment. For the following

reasons, we reverse and render judgment.

FACTUAL AND PROCEDURAL HISTORY

This matter came before this Court previously as an appeal filed by the City.

3000-3032 St. Claude Ave., LLC v. City of New Orleans, 2021-0139 (La. App. 4

Cir 12/9/21), 332 So.3d 1251. Because the judgment appealed therein did not

constitute a final judgment, this Court converted the appeal into a writ application

and issued a Writ Opinion on December 9, 2021. Id. at pp. 4-5, 332 So.3d at 1254.

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In the Writ Opinion, this Court summarized the relevant factual and procedural

background as follows:

In June 2017, [the LLC] 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
[the LLC] are split-zoned, having more than one zoning classification.
The front portions of the three split-zoned 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, [the LLC] 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 recommended approval of both of [the LLC’s]
requests, subject to twenty-one provisos.

The CPC held two public hearings, on February 6, 2018 and
March 13, 2018, at which the [the LLC’s] requests were considered.
At both meetings, the CPC summarized the requests, stated the
recommendations of the Staff, and heard statements from [the LLC],
proponents, and opponents. At the conclusion of the March 13, 2018
meeting, the CPC voted to recommend the City Council deny [the
LLC’s] requests. On March 19, 2018, the CPC issued its report to the
City Council with its recommendation to deny [the LLC’s] requests.

The City Council also held two public hearings on [the LLC’s]
zoning requests. At the April 19, 2018 hearing, the requests received
strong opposition from neighborhood residents and groups in public

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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, [the LLC]
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 [the LLC’s] request
in Zoning Docket 021-18.

On June 1, 2018, [the LLC] filed in the district court a petition
for judicial review of the City Council’s denial of the zoning
amendment request. [The LLC] asserted that the City Council’s
decision was arbitrary and capricious, lacking any supporting
evidence or reasons for its decision. Additionally, [the LLC] 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 [the
LLC’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. [The LLC] filed an
opposition to the City’s motion 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, [the LLC] filed a motion to dismiss the appeal

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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 [the LLC’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 [the LLC’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 [the LLC’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.

3000-3032 St. Claude Ave., 2021-0139, pp. 1-5, 332 So.3d at 1253-55. After

reciting the above factual background and procedural history, this Court stated that

“the record of the City Council hearings lack[ed] clarity on the sole issue of the

zoning amendment request” and that “the City ha[d] not shown that there [wa]s

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

petition for judicial review.” Id. at p. 9, 332 So.3d at 1257. This Court ultimately

found no abuse of discretion in the trial court’s November 20, 2020 judgment,

which remanded the matter to the City Council for further review and to articulate

the basis for its denial of the zoning map amendment; therefore, this Court granted

the City’s writ application but denied relief. Id.

The April 7, 2022 City Council Hearing

Thereafter, on April 7, 2022, the City Council held a meeting to further

reconsider Zoning Docket No. 021-18 (“the Zoning Amendment”), which solely

addressed the rezoning of three split-zoned lots owned by the LLC in the 3000

block of St. Claude Avenue (“the Property”). The City Planning Commission (“the

CPC”), the LLC, Neighbors First for Bywater (“Neighbors First”), and several

community members made presentations and comments to the City Council. The

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representative from the CPC stated that the CPC held a public hearing at which it

heard “a lot of comments from neighbors about the potential impact of the

commercial zoning, and the hotel itself, on the surrounding residential properties,

especially given the relatively large size of [the Property,] and recommended that

the City Council deny the application . . . .”

The LLC’s counsel stated that the Property was an “island” with “no access

to it,” and that the case was remanded for further consideration by the City Council

“because this island is not permitted.” Further, the LLC’s counsel opined that there

was evidence of the Property “not being able to be developed” and that the City

was classifying the zoning as a “buffer.” According to its counsel, the LLC sought

to “put [the Property] back into commerce.”

The public made comments by filling out cards that were read into the

record or by making oral statements before the City Council. These comments

included, in pertinent parts:

“[W]hen the residents in the blocks surrounding this area
bought their homes, they knew that the abutting area was zoned
HMR-3 Residential. They cannot just pick up and move. So I would
ask you to consider the residents.”

“[T]he neighborhood needs more residential space, we have
plenty of commercial space.”

“[We are] not lawyers, [we are] not politicians, [we are] not
developers. We live in this neighborhood. I live at 3052 St. Claude
Avenue, and [I have] lived there for almost thirty years. It really is a
neighborhood. [I am] not opposed to businesses; [I am] right between
a lot of businesses . . . I want more wonderful things on my block. But
this idea that you would change this part of land is a wrong move . . . .
Please [do not] do this.”

“[The Property is] being painted as an island; [it is] not an
island. [It is] a swath of residential land that has a large driveway and
access to it . . . [the LLC] could have built residential housing there.
They did not . . . . We cannot sell the city over to tourism and forget

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about the residents, and lower income residents especially, that need
places to live.”

“Key lots were used for in-city farming . . . when I bought my
property in ’97, there were horses on [the Property.] There were
residents in every single house.”

“[I have] been a homeowner in Bywater since 1988 . . . .
Bywater remains a quaint and quiet neighborhood with beautiful
architecture . . . . Why allow [the LLC] to invade Bywater by allowing
these out of town developers to build buildings and structures that are
intrusive and will change the appearance, the ambiance, and landscape
of our neighborhood – the place where we call home.”

A few, but not all, speakers mentioned their opposition to the previously

proposed hotel, and a need for a “residential buffer.”

After hearing public comment on the LLC’s Zoning Amendment,

Councilmember King moved for a vote to deny the zoning map amendment.

Councilmember Giarrusso asked a city attorney whether that, “given the legal

issues, do we need to do anything about putting anything on the record?” The city

attorney indicated that nothing additional was needed. Motion M-22-194, to deny

the Zoning Amendment, passed 6-0, with one member absent.

The October 12, 2022 Judgment

Subsequently, on May 4, 2022, the LLC filed an Amended Petition for

Judicial Review (“Amended Petition”). The trial court held a hearing on the

Amended Petition on August 26, 2022, and after taking the matter under

advisement, ordered both parties to file post-hearing briefs. Specifically, the trial

court ordered the parties to address: 1) why the trial court should not remand the

matter to the City Council to explain their vote; or 2) why the trial court should not

grant the relief requested from the LLC.

After receipt of the post-hearing briefs, the trial court signed a judgment on

October 12, 2022, granting the LLC’s Amended Petition and mandating the City

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Council to approve the Zoning Amendment and by ordinance to effectuate a

zoning map change on the rear portion from HMR-3 Residential to HMC-2

Commercial. The judgment stated, in pertinent part:

ACCORDINGLY, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the New Orleans City Council
acted arbitrarily, capriciously, and without consideration nor
appropriate regard of the facts and circumstances of the application
related to Zoning Docket N[o]. 21-18;

IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that Zoning Docket N[o]. 21-18 is hereby reversed and
the City Council instructed, after all due and legal delays, appeal
delays, and otherwise, to approve Zoning Docket N[o]. 21-18 and by
ordinance effectuate a zoning map change on the official zoning maps
of the City for the rear portion of Lots “E-2,” “R,” and “10,” Square
363, Third Municipal District, City of New Orleans, Louisiana
bounded by St. Claude Avenue, Clouet, N. Rampart, and Montegut
Streets from HMR-3 Historic Marigny/Treme/Bywater Residential
District to HMC-2 Historic Marigny/Treme/Bywater Commercial
District.

The City timely filed a Motion for Suspensive Appeal.

DISCUSSION

On appeal, the City asserts two assignments of error. First, the City contends

that “the [trial] court erred by shifting the burden of proof to the City Council to

demonstrate why its decision was in fact not arbitrary and capricious.” Second, the

City contends that “the [trial] court erred in finding that the City Council’s decision

to accept the CPC’s recommendation of denial in [Zoning Docket No.] 021-18 was

arbitrary and capricious, or characterized by an abuse of discretion.”

Standard of Review

“A challenge to a zoning decision in Louisiana is a de novo proceeding on

the issue of whether the result of the legislation is arbitrary and capricious, and

therefore a taking of property without due process of law.” Toups v. City of

Shreveport, 2010-1559, p. 4 (La. 3/15/11), 60 So.3d 1215, 1218 (citing Palermo

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Land Co. v. Planning Comm’n of Calcasieu Par., 561 So.2d 482, 492 (La. 1990)).

An appellate court reviews questions of law in a zoning matter under the de novo

standard of review. Cordes v. Bd. of Zoning Adjustments, 2009-0976, p. 6 (La.

App. 4 Cir 1/20/10), 31 So.3d 504, 508 (citing Sarpy v. ESAD, Inc., 2007-0347, p.

4 (La. App. 4 Cir. 9/19/07), 968 So.2d 736, 738). Regarding factual findings in a

zoning matter, this Court has explained that “[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.” Esplanade Ridge Civic Ass’n v. City of New Orleans, 2013-1062, p. 4

(La. App. 4 Cir. 2/12/14), 136 So.3d 166, 169 (quoting King v. Caddo Par.

Comm’n, 2014-0015, pp. 14-15 (La. 10/20/98), 719 So.2d 410, 418).

We now discuss each assignment of error in turn.

ASSIGNMENT OF ERROR NUMBER ONE

In its first assignment of error, the City contends that “the [trial] court erred

when it shifted the burden to the City Council to demonstrate why its decision of

denial was in fact not arbitrary and capricious.” Louisiana jurisprudence provides

that a “presumption of validity attaches to all zoning decisions . . . .” Palermo

Land Co., 561 So.2d at 490. “It applies to all zoning ordinances, including

piecemeal and spot zonings . . . .” Id. at 491. “[T]he burden rests on the challenger

to overcome this presumption. . . . The opponent must show a real or substantial

relationship to the general welfare is lacking.” Id. Though this presumption is

rebuttable, the burden of proof rests on the challenger to overcome this

presumption. Cordes, 2009-0976, p. 6, 31 So.3d at 508 (citing Curran v. Bd. of

Zoning Adjustments Through Mason, 1990-1441 (La. App. 4th Cir. 6/18/91), 580

So.2d 417, 418); Palermo Land Co., 561 So.2d at 490 (citing Four States Realty

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Co. v. City of Baton Rouge, 309 So.2d 659, 665-66 (La. 1975); Morton v. Jefferson

Par. Council, 419 So.2d 431, 434 (La. 1982); Folsom Road Civic Ass’n v. Par. of

St. Tammany, 407 So.2d 1219, 1222 (La. 1981); Furr v. Mayor and City Council of

Baker, 408 So.2d 248, 249 (La. 1981); Southside Civic Ass’n v. Guaranty Savings

Assurance Co., 339 So.2d 323, 325 (La. 1976)). In particular, the challenger must

show an arbitrary and unreasonable exercise of legislative authority in that “a real

or substantial relationship to the general welfare is lacking.” Palermo Land Co.,

561 So.2d at 490, 493. The Louisiana Supreme Court has stated that, “[i]n order to

justify a holding that the legislative action is arbitrary, capricious and

unreasonable,” the challenger must show both “that there was no room for a

reasonable difference of opinion, and that there was no substantial evidence upon

which the legislative action could have been justified.” Four States Realty Co., 309

So.2d 659 at 664. In Terrytown Properties, Inc. v. Jefferson Parish, the Louisiana

Fifth Circuit Court of Appeal explained that for a court to substitute its judgment in

place of the legislative entity’s decision in a zoning matter, the challenger must

have met a two-fold burden of proof: the challenger “must not only show the

merits of their requested zoning change . . . but also demonstrate that the current

zoning of the property is unreasonable, arbitrary, and discriminatory under all

attending circumstances.” 416 So.2d 323, 325 (La. App. 5th Cir. 1982). See also

Kirk v. Town of Westlake, 373 So.2d 601, 604 (La. App. 3rd Cir. 1979).

Moreover, a zoning decision by the City Council is not invalid merely

because the City Council did not include an explanation of its decision. As this

Court has explained:

The City is a municipality and, as such, the City’s
administrative hearing officer is excluded from complying with the
[Administrative Procedure Act (“APA”)] and thus is not bound by the

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dictates of La. R.S. 49:958.[1] See George v. Dep’t of Fire, 637 So.2d
1097, 1103 (La. App. 4[th] Cir. 1994) (finding that the clear language
of the APA excludes the City Civil Service Commission from its
coverage); Franklin v. City of Alexandria, 2018-634, p. 12 (La. App. 3
Cir. 5/1/19), 272 So.3d 120, 127 (APA did not apply to the City
Council, the legislative arm of the City, a political subdivision of the
State).[] Moreover, even if the Hearing Officer in this case was subject
to the provisions of La. R.S. 49:958, her failure to include findings of
fact and conclusions of law in her decision was not fatal.

Louisiana jurisprudence provides that “where the findings and
reasons therefor are necessarily implicit in the record and the
administrative determination is supported and sustainable by a
preponderance of the evidence, the administrative decision is not
invalid merely because the agency failed to explicitly articulate that
which is self-evident.” In re Ark-La-Tex Antique & Classic Vehicles,
Inc., 2005-1931, p. 7 (La. App. 1 Cir. 9/15/06), 943 So.2d 1169, 1174
(citing Summers v. Sutton, 428 So.2d 1121, 1128 (La. App. 1 Cir.
1983)).

Chaumont v. City of New Orleans, 2020-0017, p. 12 (La. App. 4 Cir. 6/3/20), 302

So.3d 39, 50 (footnote omitted).

In Terrytown Props., Inc., property owners brought an action against

Jefferson Parish and challenged the Jefferson Parish Council’s decision which

denied their request for rezoning of their property. The trial court ordered a

mandatory injunction rezoning the property, and Jefferson Parish appealed.

Terrytown, 461 So.2d at 323. On appeal, the Louisiana Fifth Circuit (“Fifth

Circuit”) held that the property owners failed to carry their double burden of

proving that their proposed zoning designation had merits (as opposed to other

commercial or residential designations) and that the Jefferson Parish Council’s

1 The Louisiana Legislature redesignated La. R.S. 49:958 as La. R.S. 49:977 by Acts

2022, No. 663, §1. It provides, in pertinent part:

A final decision or order adverse to a party in an adjudication proceeding
shall be in writing or stated in the record. A final decision shall include findings
of fact and conclusions of law. Findings of fact, if set forth in statutory language,
shall be accompanied by a concise and explicit statement of the underlying facts
supporting the findings. If, in accordance with agency rules, a party submitted
proposed findings of fact, the decision shall include a ruling upon each proposed
finding.

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action in denying their rezoning request had no rational basis. Id. Finding that the

property owners had not carried their burden, the Fifth Circuit concluded that the

trial court erred in granting a mandatory injunction requiring rezoning of the

property in question. Id. at 326. Accordingly, the Fifth Circuit reversed the trial

court’s judgment; rendered judgment in favor of Jefferson Parish; and dismissed

the property owners’ suit. Id. See also Palermo Land Co., 561 So.2d at 491

(holding that the appellate court “erred in its failure to apply [the] presumption and

thereby place upon plaintiffs the burden of proving a lack of relation between the

rezoning at issue and the welfare of the . . . community.”); Kirk v. Town of

Westlake, 373 So.2d 601, 604 (La. App. 3rd Cir. 1979).

In its Reasons for Judgment regarding the October 12, 2022 judgment, the

trial court stated: 2

A meticulous review of the record and the aforesaid April 7, 2022
hearing simply does not offer novel nor elaborated insight into the
decision-making process of the City Council in adherence with the
governing arbitrary and capricious standard applicable to such
legislative decisions. Accordingly, this Court, and therefore the
judicial record, lack the requisite clarity to ascertain whether the
rationale behind the City Council’s decision to deny [the LLC]’s
application for the rezoning of the disputed lots from a split-zone to a
single zone designation was in fact not arbitrary and capricious. More
specifically, it is unknown to this Court whether or not the City
Council truly considered the rezoning application asserted by the
[LLC] without consideration for the since withdrawn conditional use
permit. . . . Notably, this court does not have the authority to assume a
rational basis existed for the City Council’s decision and after having
provided the City Council an opportunity to elaborate on remand with
the April 7, 2022 hearing, nothing of substance supplemented the
record to satisfy the applicable standard of review. Therefore, this
Court is unable to determine that a rational basis for the City

2 “It is a ‘well-settled rule that the [trial] court's oral or written reasons for judgment form

no part of the judgment, and that appellate courts review judgments, not reasons for judgment.’”
TKTMJ, Inc. v. Sewerage & Water Bd. of New Orleans, 2020-0154, p. 4 (La. App. 4 Cir.
12/16/20), 313 So.3d 979 n.4 (quoting Wooley v. Lucksinger, 2009-0571, p. 77 (La. 4/1/11), 61
So.3d 507, 572). “However, a court of appeal may review the trial court’s reasons for judgment
to ‘gain insight’ into the trial court's judgment.” Id.

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Council’s decision existed at the time of either City Council vote on
[the LLC]’s application.

Nearly four years ago, the City Council was in precisely the
same position it presently finds itself – before this [trial] court
defending its decision to deny [the LLC]’s rezoning application.
However, on this appearance, the City Council has been since
provided a second chance to meet the standard demanded by
Louisiana law governing how a legislature must exercise its authority
in granting or denying rezoning applications or zoning map changes.
The City Council has failed to do so.

(Emphasis added.) Based on the above-quoted excerpt from the trial court’s

Reasons for Judgment, the City’s first assignment of error has merit. Specifically,

the trial court’s reasons for judgment indicate that the trial court placed the burden

of proof on the City to establish that its decision was not arbitrary and capricious

and found that the City Council failed to provide a basis for its decision. According

to Louisiana jurisprudence, because the City Council’s April 7, 2022 vote

constituted a zoning decision by a legislative body, it is presumed to be valid

unless and until the LLC (as the challenger) demonstrated that the decision was

arbitrary and capricious. The trial court’s October 12, 2022 judgment and Reasons

for Judgment do not demonstrate a finding that the LLC established an arbitrary

and unreasonable exercise of legislative authority so as to rebut the presumption of

validity attached to the City Council’s decision and shift the burden of proof to the

City Council. This was error for the trial court to do so. Further, the City Council’s

failure to include findings of fact and conclusions of law was not fatal. See

Chaumont, 2020-0017, p.12, 302 So.3d at 50. We find that the City’s first

assignment of error has merit.

In light of the City’s first assignment of error having merit, we

independently analyze whether the LLC bore its burden of proof required for the

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trial court to be able to substitute its views for those of the City Council. In so

doing, we turn to the to the City’s second assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

In its second assignment of error, the City asserts that “[t]he [trial] court

erred in finding that the City Council’s decision to accept the CPC’s

recommendation of denial in [Zoning Docket] 021-18, was arbitrary and

capricious, or characterized by an abuse of discretion.” In response, the LLC

contends that the City Council’s decision was arbitrary and capricious, thereby

constituting a taking. Having already found that the trial court improperly shifted

the burden of proof to the City Council, we analyze whether the record presents

evidence to justify the judicial branch substituting its views for that of the City

Council. See Terrytown Props., Inc., 416 So.2d at 325. To do so, we must first

consider whether the LLC proved that the City Council’s decision was arbitrary

and capricious before addressing the merits of the LLC’s requested zoning change,

as discussed below. Id.

Legislative Authority in Zoning Matters

“A challenge to a zoning decision in Louisiana is a de novo proceeding on

the issue of whether the result of the legislation is arbitrary and capricious, and

therefore a taking of property without due process of law.” Neighbors First for

Bywater, Inc. v. City of New Orleans/New Orleans City Council, 2017-0256, p. 10

(La. App. 4 Cir. 12/13/17), 2017 WL 6350339, at *5 (quoting Toups, 2010-1559,

p. 4, 60 So.3d at 1218). “Zoning is a legislative function. The authority to enact

zoning regulations flows from the police power of the various governmental

bodies.” Palermo Land Co., 561 So.2d at 491 (citing Four States Realty Co., 309

So.2d 659; Folsom Road Civic Ass’n, 407 So.2d 1219; Morton, 419 So.2d 431).

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“Because legislative action [is] a manifestation of the will of the people, every

presumption of law and fact must be indulged in favor of its constitutionality.”

Four States Realty Co., 309 So.2d at 666 (citing State v. Guidry, 247 La. 631, 173

So.2d 192 (1965)).

“Judicial review of zoning decisions acts merely as a check on this

legislative power . . . to ensure that there is no abuse of the power. Courts will not

and cannot substitute their judgment for that of the legislative authority.” Palermo

Land Co., 561 So.2d at 492 (citing Four States Realty Co., 309 So.2d 659). “The

purpose of certiorari review . . . is . . . ‘to decide if the evidence establishes a legal

and substantial basis for the [legislative entity’s] decision.’” Esplanade Ridge Civic

Ass’n, 2013-1062, p. 3, 136 So.3d at 169 (quoting Elysian Fields, Inc. v. St.

Martin, 600 So.2d 69, 72 (La. App. 4th Cir. 1992)). For the judicial branch to

substitute its own view in a zoning matter, the challenger to a zoning decision must

demonstrate that the legislative entity’s decision was arbitrary and capricious, as

well as the merits of the challenger’s requested zoning change. Terrytown Props.,

Inc., 416 So.2d at 325.

Arbitrary, Capricious, or Bears No Relation to Health, Safety, or General
Welfare

“The test of whether a zoning board’s action is arbitrary and capricious is

whether the action is reasonable under the circumstances.” Esplanade Ridge Civic

Ass’n, 2013-1062, p. 4, 136 So.3d at 169 (quoting King, 2014-0015, p. 14, 719

So.2d 410, 418). “‘Capriciously’ has been defined as a conclusion reached with no

substantial evidence to support it or a conclusion contrary to substantial competent

evidence; whereas, the term ‘arbitrary’ infers a disregard or failure to give proper

weight to the evidence.” Neighbors First for Bywater, Inc., 2017-0256, p.11, 2017

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WL 6350339, at *5 (citing Rubenstein v. City of New Orleans, 2007-1211, p. 3

(La. App. 4 Cir. 4/30/08), 982 So.2d 964, 966). “The action of a governmental

body is arbitrary and capricious if it bears no relation to the health, safety, or

general welfare of the public.” Id. at p. 20, 2017 WL 6350339, at *8 (citing

Palermo, 561 So.2d at 491). Further, the Louisiana Supreme Court has explained:

It is not necessary, for the validity of the ordinance in question,
that [the court] should deem the ordinance justified by considerations
of public health, safety, comfort, or the general welfare. It is sufficient
that the municipal council could reasonably have had such
considerations in mind. If such considerations could have justified the
ordinances, [the court] must assume that they did justify them.

....

Whether an ordinance bears the requisite relationship to the
health, safety and welfare of the public is a factual question which
must be determined from the evidence in the record. If it appears
appropriate and well[-]founded concerns for the public could have
been the motivation for the zoning ordinance, it will be upheld.

Palermo Land Co., 561 So.2d at 491 (emphasis added) (quoting State ex rel.

Civello, 154 La. 271, 97 So. 440 (1923)). “In order to justify a holding that the

legislative action is arbitrary, capricious and unreasonable, it must be shown that

there was no room for a reasonable difference of opinion, and that there was no

substantial evidence upon which the legislative action could have been justified.”

Four States Realty Co., 309 So.2d at 665-66. However, “[w]henever the propriety

of a zoning decision is debatable, it will be upheld.” Palermo Land Co., 561 So.2d

at 493 (citing Hunters Grove Homeowners Ass’n v. Calcasieu Par. Police Jury,

422 So.2d 673 (La. App. 3rd Cir. 1982); Hernandez v. City of Lafayette, 399 So.2d

1179 (La. App. 3rd Cir. 1981); Hardy v. Mayor & Bd. of Aldermen, 348 So.2d 143

(La. App. 3rd Cir. 1977); Sears Roebuck & Co. v. City of Alexandria, 155 So.2d

776 (La. App. 3rd Cir. 1963)).

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As previously discussed in this opinion, the Louisiana Supreme Court has

explained that the presumption of validity and burden of proof to demonstrate

arbitrary or capricious action remains on the challenger regardless of the type of

zoning at issue (e.g., piecemeal or spot zoning) or an allegation that there had been

some mistake in the original zoning. See Palermo Land Co., 561 So.2d at 489-90

(rejecting the “change or mistake” approach outlined in Dufau v. Par. of Jefferson,

200 So.2d 335 (La. App. 4th Cir. 1967) and “holding that the same presumption of

validity attaches to all zoning decisions, and the burden rests on the challenger to

overcome this presumption” (emphasis added)).

Split-Zoning

The LLC raises the issue of the legality of split-zoning. We have found no

Louisiana jurisprudence that uses the phrase “split-zoning” or discusses the

propriety of it. In support of its contention that the split-zone designation is illegal,

the LLC cites to Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72

L.Ed. 842 (1928) and AMG Associates v. Springfield Township, 65 N.J. 101, 319

A.2d 705, 706 (1974).3 In the latter case, the New Jersey Supreme Court concluded

that the split-zoned property in that matter was “practically unusable,” and because

the landowner was deprived of all reasonable use, the split zoning constituted a

taking. AMG Associates, 319 A.2d at 700. However, in the matter sub judice, the

residential portion of the Property has purportedly generated income in the past.

Moreover, the record does not support a finding that the LLC has demonstrated a

total inability to use the Property in its split-zoned nature.

3 Because Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928)

relies on pre-Lochner administrative review jurisprudence, we do not find it persuasive in the
case sub judice.

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In analyzing split-zoning, we analogize to spot zoning, which is defined as

“the singling out of a small parcel of land for a use classification which is different

from that of the surrounding area, usually for the benefit of the owner of that

parcel, or for the benefit of the owner of some other property in that area, and to

the detriment of other owners.” Monte v. Par. of Jefferson ex. rel. Coulon, 2004-

1059, p. 8 (La. App. 5 Cir. 2/15/05), 898 So.2d 506, 511. In Four States Realty

Co., the Louisiana Supreme Court explained that spot zoning, like other zoning

decisions, “depends upon the particular facts of each case, and on whether the

[legislative entity]’s action is properly related to the public health, safety, morals

and general welfare, designed to serve the best interest of the community as a

whole . . . .” 309 So.2d at 666. That is, certain zoning types are not per se invalid:

the arbitrary and capricious standard of review applies no matter the zoning type.

In asserting that the split-zoning is illegal, the LLC also cites Trustees Under

Will of Pomeroy v. Town of Westlake, 357 So.2d 1299 (La. App. 3rd Cir. 1978),

wherein the subject “property serve[d] as a buffer zone of peace and quiet for its

neighbors . . . .” In that case the Louisiana Third Circuit Court of Appeal (“Third

Circuit”) found that the property was “completely unsuited for residential

development” and that its only feasible purpose was for industrial purposes. Id.,

357 So.2d at 1303. Additionally, the Third Circuit noted that the property owners

who opposed the development did not even reside in single family residential

zones. Id. This is distinguishable from the facts of the matter sub judice. The

record does not support a finding that the LLC’s property is completely unsuited

for residential development; and the neighbors opposing the zoning amendment

request live in the same residential designation as the residential portion of the

LLC’s property.

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Bases of Information for Zoning Decision

In terms of sources of information for the legislative body in a zoning

decision, the Louisiana Supreme Court has held that the concerns of citizens and

neighbors are an appropriate consideration:

Zoning ordinances generally result from a rational decision-making
process, and input from members of the community is not uncommon.
Nor should it be. Those with zoning authority are elected officials,
and as such, they represent the interests of those who elected them.
The interests of the public are at the heart of the welfare of a
community. Thus, the concerns and desires of the electorate are an
appropriate consideration in the decision-making process which exists
for their benefit. As this court pointed out in [State ex rel. Civello v.
City of New Orleans, 154 La. 271, 283, 97 So. 440, 444 (1923)], if a
majority of the citizens are dissatisfied with the decisions of the
zoning authority, “their recourse is to the ballot—not the courts.”

Palermo Land Co., 561 So.2d at 494-95. Louisiana “jurisprudence has long

recognized ‘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, 2010-1559, p. 5, 60 So.3d 1215

at 1218 (quoting King, 1997-1873, p. 16, 719 So.2d at 419) (holding that the

appellate court erred by concluding that the council acted arbitrary and

capriciously because its decision was based on opinions from opponents about

increases of traffic and crime as opposed to “objective facts”).

For example, in Fleckinger v. Jefferson Parish Council, the appellant argued

that the Jefferson Parish Council’s zoning decision could not be based upon the

opposition of voters residing in the subject area. 510 So.2d 429, 432 (La. App. 5th

Cir. 1987). In response, the Fifth Circuit pointed out that the record did not support

a finding that the Jefferson Parish Council relied solely on resident objections. Id.

The Fifth Circuit found that the Jefferson Parish Council also relied on the basis

that the proposed change would violate the “neighborhood norm.” Id., 510 So.2d at

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432-33. Further, the Fifth Circuit found that the Jefferson Parish Council had

considered the impact on the quality of life for the residents in the subject area. Id.,

510 So.2d at 432.

Zoning and Takings

Regarding the landowner’s rights in the land, a zoning decision only

constitutes a “taking” of the subject property under the just compensation clause of

the Fifth Amendment of the United States Constitution if the ordinance denies the

owner an economically viable use of his land. Hernandez v. City of Lafayette, 643

F.2d 1188, 1197 (5th Cir. 1981) (citations omitted).4 “The public interest behind

the regulation, such as the ‘health, safety, morals, or general welfare,’ will [. . .] be

a factor in the analysis of whether a regulatory taking has occurred.” Robinson v.

City of Baton Rouge, 2013-375, 2015 WL 13522820, at *8 (M.D. La. March 20,

2015) (quoting Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 125

(1978)). “However, the Supreme Court [has] identified two situations which

qualify as a regulatory taking not requiring a case-specific inquiry into the public

interest advanced in support of the restraint: (1) regulations which compel the

property owner to suffer a physical invasion of his property and (2) regulations

which deny ‘all economically beneficial or productive use of land.’” Id. (emphasis

added) (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992)).

“[U]nder Louisiana law, [a taking] occurs when the regulation destroys a major

portion of the property’s value or eliminates the practical economic uses of the

4 “The Takings Clause of the Fifth Amendment, made applicable to the States through

the Fourteenth, provides that private property shall not ‘be taken for public use, without just
compensation.’” Robinson v. City of Baton Rouge, 2013-375, 2015 WL 13522820, at *8 (M.D.
La. March 20, 2015) (quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536, 125 S. Ct. 2074,
2080 (2005)).

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property.”5 Id. at *11 (quoting State, Dep’t of Soc. Servs. v. City of New Orleans,

1995-1757 (La. App. 4 Cir. 5/29/96), 676 So. 2d 149, 151; Layne v. City of

Mandeville, 1993-0046 (La. App. 1 Cir. 12/29/93), 633 So. 2d 608, 611). However,

“[a]n unconstitutional taking of private property does not result merely because the

owner is unable to develop it to its maximum economic potential.” Id. (emphasis

added).

Turning to the facts of the matter sub judice, at the April 7, 2022 City

Council meeting, the City Council heard only two public comments in favor of the

zoning amendment request: one from a representative of the LLC, and a written

public comment submitted by a member of the public.

However, the rest of the public comments—either in writing or given

orally—were in opposition to the zoning amendment request. Residents and the

president of Neighbors First voiced concerns about their property values and

explained that they purchased their properties knowing that the abutting area was

zoned residential and served as a buffer between the commercial and residential

zoning areas. In contrast, they pointed out that the developer purchased the subject

land knowing that it was not zoned to be fully commercial. Residents also listed

concerns about additional commercial activity keeping their children up at night;

the proposed zoning change removing affordable housing for low-income residents

5 The Louisiana Constitution, art. I, § 4 states:

(A) Every person has the right to acquire, own, control, use, enjoy, protect, and
dispose of private property. This right is subject to reasonable statutory
restrictions and the reasonable exercise of the police power.

(B)(1) Property shall not be taken or damaged by the state or its political
subdivisions except for public purposes and with just compensation paid to the
owner or into court for his benefit.

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of the city; a focus on tourism in their neighborhood; and the potential for the

Zoning Amendment to affect the culture and historic background of the

neighborhood. Regarding the ability to monetize the Property, residents explained

that the residential portion of the Property had previously been rented out, thereby

generating income, and that a driveway provides access for the residential and

commercial portions of the Property. Additionally, a resident voiced concern about

the LLC’s maintenance of the Property, citing the abandoned-looking nature of the

Property and failure to remove storm debris as the LLC’s disregard for the

neighbors and the community. The LLC’s zoning amendment request did not

specify what type of commercial endeavor would occur on the Property, and

residents voiced concerns about this uncertainty.

Considering the foregoing, “it appears [that] appropriate and well[-]founded

concerns for the public could have been the motivation for the zoning [decision].”

See Palermo Land Co., 561 So.2d at 491. Additionally, the City Council has heard

the opinions of the LLC and the public multiple times over numerous years about

the proposed Zoning Amendment, such that its action was deliberate, not hasty.

See Four States Realty Co., 309 So.3d at 666. Further, the record shows that there

was no “difference of opinion” based on the fact that the City Council voted

unanimously against the zoning amendment request (with one councilmember not

present for the vote). See id. The City Council received information regarding the

ability of the Property to generate income in its current zoning because the

structures present on the rear residential portion have previously served as

residential rentals, so this refutes the LLC’s contention that the current designation

constitutes a taking of the LLC’s property. Thus, our review of the record does not

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support a finding that the City Council’s decision was arbitrary and capricious or

lacking disregard for the general welfare.

DECREE

For the reasons discussed above, we reverse the trial court’s October 12,

2022 judgment and render judgment in favor of the New Orleans City Council and

the City of New Orleans.

REVERSED AND RENDERED

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