Lake Terrace Property Owners Association, Inc. v. the City of New Orleans, Board of Zoning Adjustments and Celso Eric Hernandez

LAKE TERRACE PROPERTY * NO. 2024-CA-0577
OWNERS ASSOCIATION, INC.
*
VERSUS COURT OF APPEAL
*
THE CITY OF NEW FOURTH CIRCUIT
ORLEANS, BOARD OF *
ZONING ADJUSTMENTS AND STATE OF LOUISIANA
CELSO ERIC HERNANDEZ *******

CONSOLIDATED WITH: CONSOLIDATED WITH:

LAKE TERRACE PROPERTY NO. 2024-CA-0758
OWNERS ASSOCIATION, INC.

VERSUS

THE CITY OF NEW ORLEANS,
BOARD OF ZONING
ADJUSTMENTS AND CELSO
ERIC HERNANDEZ

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2023-05362, DIVISION “C”
Honorable Sidney H. Cates, Judge
******
Judge Nakisha Ervin-Knott
******
(Court composed of Judge Daniel L. Dysart, Judge Nakisha Ervin-Knott, Judge
Monique G. Morial)

Keith A. Doley
ATTORNEY AT LAW
1554 North Broad Street
New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLEE

Shawn Lindsay
DEPUTY CITY ATTORNEY
Donesia D. Turner
CITY ATTORNEY
CITY OF NEW ORLEANS
1300 Perdido Street Suite 5E03
New Orleans, LA 70112
Robert J. Ellis, Jr.

Salvador I. Bivalacqua
Will C. Griffin
GRIFFIN & BIVALACQUA, LLC
650 Poydras Street, Suite 2615
New Orleans, LA 70130

COUNSEL FOR DEFENDANTS/APPELLANTS

MOTION TO DISMISS APPEAL DISMISSED; APPEALS
CONVERTED TO WRITS; WRITS GRANTED; AFFIRMED IN
PART, REVERSED IN PART; JUDGMENT RENDERED.

FEBRUARY 18, 2025

NEK Appellants, the City of New Orleans (“the City”) and Celso Eric Hernandez
DLD
(“Mr. Hernandez”), seek review of the district court’s May 30, 2024 judgment,
MGM
which held the Board of Zoning Adjustments (“BZA”)’s denial of Lake Terrace

Property Owners Association, Inc.1 (“LTPOA”)’s appeal was “arbitrary,

unreasonable, and an abuse of discretion.” The district court vacated the BZA’s May

1, 2023 decision and May 11, 2023 disposition denying LTPOA’s appeal of the

January 31, 2023 zoning verification and remanded this matter to the BZA “for a

full evidentiary hearing and vote by the entire Board.” For the reasons that follow,

we dismiss LTPOA’s motion to dismiss for lack of jurisdiction; convert the June 18,

2024 motion for suspensive appeal and June 28, 2024 motion for devolutive appeal

1 According to LTPOA’s petition for writ of certiorari and/or judicial review, “LTPOA is a non-

profit corporation organized under Louisiana law and is domiciled and maintains its principal place
of business in the Parish of Orleans, State of Louisiana.” LTPOA’s membership is “comprised of
owners of residential property within the Lake Terrace Subdivision (bounded by Allen Toussaint
Boulevard, London Park, Lake Pontchartrain, and Bayou St. John).” The petition further provides,
in pertinent part:

Among the purposes of LTPOA set forth its Articles of Incorporation are to
promote, cultivate, and develop a spirit of cooperation and mutuality among its
members in the Lake Terrace Subdivision; to maintain and strictly enforce
restrictions applicable to the Subdivision; to promote and encourage high standards
of residential development and maintenance, and to discourage any offensive or
obnoxious activity or misuse of property within the Subdivision.

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to applications for supervisory writs; grant the writs; affirm in part the district court’s

ruling that the BZA’s denial of LTPOA’s appeal was “arbitrary, unreasonable, and

an abuse of discretion”; reverse in part the district court’s remand of the matter to

the BZA “for a full evidentiary hearing and vote by the entire Board”; and render

judgment granting LTPOA’s appeal of the BZA’s May 1, 2023 decision and May

11, 2023 disposition.

FACTUAL AND PROCEDURAL HISTORY

Mr. Hernandez is the owner of residential property located at 6419 Caldwell

Drive (“the Property”) in New Orleans, Louisiana. He purchased said Property on

February 25, 2022, from Stephen Covington Guilbault (“Mr. S. Guilbault”) and

George G. Guilbault, Jr. Prior to Mr. Hernandez’s purchase, the Property was

originally owned by Ms. Palma Covington Guilbault (“Ms. Covington”) from

December 11, 1980 until her death in 2020.2 The Property is located in the Lake

Terrace Subdivision, a residential district that is zoned SR-S Single-Family

Residential District, under the City of New Orleans Comprehensive Zoning

Ordinance (“CZO”), and consists of a principal building and second rear structure

that was originally built as a pool cabana.

After purchasing the Property, Mr. Hernandez began renovation work on the

principal building and rear structure. As part of the renovation work on the Property,

Mr. Hernandez applied for a renovation permit – Building Permit No. 22-07631-

RNVN – to the City of New Orleans, Department of Safety and Permits (“the

Department”), which specifically referenced remodeling the kitchen area in the rear

2 According to the Act of Cash Sale dated February 25, 2022, the property was originally “acquired

by Palma Covington Guilbault, wife of/and George G. Guilbault…by Credit Sale dated December
11, 1980” and “[f]urther acquired by Palma Covington from George G. Guilbault by Act of
Partition and Settlement of Community dated February 16, 1983….”

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structure. The Department had questions concerning the longevity and existence of

the rear structure as a second dwelling unit and requested documentation – such as

affidavits, utility accounts, floorplans, leases, and photographs – in order to

determine whether there was a documented legal history for an Established Two-

Family Dwelling under CZO Sec. 20.3.W. The Department also stated that the

zoning division would have to issue an official zoning verification prior to issuing a

permit.

The Department considered the following documents submitted by Mr.

Hernandez and internal research including but not limited to the following: (1) a

notarized letter from former property owner, Mr. S. Guilbault, attesting that the rear

structure was completed in the 1980’s; (2) photographs of the exterior architectural

design and elements of the rear structure which were the same era as those of the

main house (bricks and windows); (3) Google imagery that revealed the rear

structure had been in existence since images had been recorded in 2004; (4) Orleans

Parish Tax Assessor’s records which described the rear structure as a cabana and

included graphic square footage/building footprint representations; (5) interior

photographs of the rear structure that showed a bathroom with tilework that appeared

decades old, kitchen, laundry room, bedroom, and living space; and (6) a

construction estimate provided as part of the initial renovation permit, with specific

reference to remodeling the kitchen in the rear structure.

On January 31, 2023, the Director of the Department determined the rear

structure was used as a separate dwelling unit for over five years and had attained

status as a permitted use as a two-unit Established Two-Family Dwelling in

accordance with CZO Sec. 20.3.W.1. The Department issued Building Permit No.

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22-07631-RNVN on February 15, 2023, which allowed renovation of the Property,

including a new kitchen in the rear structure to be used as a dwelling unit.

A month after the Department issued the building permit, the president of

LTPOA, on behalf of LTPOA, appealed the Director’s decision to the BZA, which

was assigned BZA Docket No. 041-23. LTPOA asserted the Director’s decision was

erroneous because there was no evidence the rear structure was used as a two-family

residence. In the alternative, LTPOA asserted that if the rear structure could be

considered a two-family dwelling under the CZO’s provisions regarding established

non-conforming use, that use was abandoned under CZO Sec. 25.3.C.1 because the

rear structure has remained vacant more than 180 days.

Several neighbors submitted letters in support of LTPOA’s appeal arguing the

Property was subject to the building restrictions in the Lake Terrace Subdivision,

which mandated all lots be devoted to single family dwellings. These neighbors

made additional arguments, which included: (1) cabana kitchens are not allowed and

if there was a kitchen, it was illegal; (2) the rear structure was never rented or leased;

and (3) no one resided in the rear structure. However, LTPOA and neighbors

conceded that the former owner, Ms. Covington, convalesced in the pool cabana

when she became ill and could no longer go up the stairs in the main house. The

former owner, Mr. S. Guilbault, signed an affidavit on April 21, 2023, attesting that

the Property was always a single family residence; the pool cabana was never rented

or leased; and his mother, Ms. Covington, convalesced and spent her final days in

the pool cabana due to her illness.

The following occurred at the BZA’s May 1, 2023 public hearing:

And Whereas, the Board carefully considered the facts and arguments
for and against the application at the public hearing, and after
considering the Comprehensive Zoning Ordinance, No. 4264 M.C.S.,

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as amended, the Board is of the opinion that the weight of the evidence
does not indicate an error in application of the law or a conflict in the
law, in accordance with Article 4, Section 4.8.A of the Comprehensive
Zoning Ordinance; therefore, a motion was made by Todd James to
DENY the appeal and UPHOLD the decision made by the Director of
the Department of Safety and Permits.

The motion died for lack of a second.

And Whereas, the Board carefully considered the facts and arguments
for and against the application at the public hearing, and after
considering the Comprehensive Zoning Ordinance, No. 4264 M.C.S.,
as amended, the Board is of the opinion that the weight of the evidence
indicates an error in application of the law or a conflict in the law, in
accordance with Article 4, Section 4.8.A of the Comprehensive Zoning
Ordinance; therefore, a substitute motion was made by Matt Rufo and
seconded by Ramiro Diaz to APPROVE the appeal and OVERTURN
the decision made by the Director of the Department of Safety and
Permits.

Voting for the Resolution: Tamara Agins, Jaime Ramiro Diaz,
Matthew Rufo
Voting Against the Resolution: Candice Forest, Todd James
Abstaining from the Resolution: None
Absent: Jose Alvarez, Alfonso Gonzalez

The concurring vote of four (4) members of the Board shall be
necessary to reverse any order, requirement, decision or determination
of the Director of Safety and Permits. The motion failed to obtain the
concurring vote of four (4) members of the Board and did not pass.

And Whereas, the Board carefully considered the facts and arguments
for and against the application at the public hearing, and after
considering the Comprehensive Zoning Ordinance, No. 4264 M.C.S.,
as amended, a substitute motion was made by Ramiro Diaz and
seconded by Tamara Agins to DEFER the appeal for 30 days.

Voting for the Resolution: Tamara Agins, Jaime Ramiro Diaz,
Matthew Rufo
Voting Against the Resolution: Candice Forest, Todd James
Abstaining from the Resolution: None
Absent: Jose Alvarez, Alfonso Gonzalez

The concurring vote of four (4) members of the Board shall be
necessary to reverse any order, requirement, decision or determination
of the Director of Safety and Permits. The motion failed to obtain the
concurring vote of four (4) members of the Board and did not pass.

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As there was no motion properly passed to overturn the decision of the
Director of Safety and Permits, by operation governing procedures, the
appeal is DENIED.

The BZA’s decision was filed on May 11, 2023, in BZA Docket No. 041-23.

Thereafter, on June 9, 2023, LTPOA filed a petition for writ of certiorari

and/or judicial review of the Board’s decision in Orleans Parish Civil District Court.

The district court heard LTPOA’s petition for judicial review on March 22, 2024.

By judgment dated May 30, 2024, the district court vacated the BZA’s May 1, 2023

decision and May 11, 2023 disposition denying LTPOA’s appeal of the January 31,

2023 zoning verification and remanded this matter to the BZA “for a full evidentiary

hearing and vote by the entire Board.” The district court held the BZA’s denial of

LTPOA’s appeal was “arbitrary, unreasonable, and an abuse of discretion.”

The City filed a motion for suspensive appeal on June 18, 2024, and an order

granting the appeal was signed on June 21, 2024. Additionally, Mr. Hernandez filed

a motion for devolutive appeal on June 28, 2024, and an order granting the appeal

was signed on July 1, 2024. This appeal followed.3

JURISDICTION

Motion to Dismiss Appeal

LTPOA filed a motion to dismiss appeal specific to Mr. Hernandez’s appeal

asserting that his appeal is untimely for failure to timely pay the costs of the appeal.

LTPOA acknowledged that Mr. Hernandez timely filed his motion for devolutive

appeal on June 28,2024. However, the costs associated with his appeal were not paid

3 On December 19, 2024, this Court issued an order consolidating Case Nos. 2024-CA-0577 and

2024-CA-0758. According to Mr. Hernandez’s motion to consolidate, filed in Case No. 2024-CA-
0758, his timely filed appeal was not included in the Case No. 2024-CA-0577 record due to an
invoicing issue with the Clerk of Court’s Office for Orleans Parish Civil District Court. When this
issue was corrected and the record was lodged on his behalf, Mr. Hernandez’s appeal was assigned
a new case number, 2024-CA-0758. Case Nos. 2024-CA-0577 and 2024-CA-0758 involve the
same parties and stem from the same May 30, 2024 district court judgment.

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in full until nearly four months later on October 25, 2024, causing unnecessary delay

and excessive extension of the time period within which to lodge the record and file

briefing before this Court.

According to La. C.C.P. art. 2088 A(9), while the district court is divested of

jurisdiction over all matters reviewable under the appeal once an order for appeal is

granted, the trial court retains jurisdiction over certain matters, including the

imposition of penalties provided by La. C.C.P. art. 2126, or dismissal of an appeal,

“when the appellant fails to timely pay the estimated costs or the difference between

the estimated costs and the actual costs of the appeal.” As LTPOA is seeking a

dismissal of Mr. Hernandez’s appeal based on his alleged failure to timely pay the

appeals costs under La. C.C.P. art. 2126, this Court lacks jurisdiction over LTPOA’s

motion to dismiss appeal. Therefore, LTPOA’s motion to dismiss appeal is

dismissed for lack of jurisdiction.

May 30, 2024 Judgment

“This Court may not determine the merits of an appeal unless its jurisdiction

is properly invoked by a final judgment.” Louisiana-Annunciation Condo. Assoc.,

Inc. v. Kennedy, 2023-0327, p. 9 (La. App. 4 Cir. 11/16/23), 377 So.3d 804, 811

(citation omitted). Therefore, we must determine whether the district court’s

judgment is properly before us on appeal.

“This court’s appellate jurisdiction extends to final judgments.” Id. (citation

omitted). Appellants seek to appeal the May 30, 2024 judgment, which vacated the

BZA’s decision to deny LTPOA’s appeal and remanded the case back to the BZA

for a full evidentiary hearing and vote by the entire Board. In 3000-3032 St. Claude

Ave., LLC v. City of New Orleans, the plaintiff filed a petition for judicial review of

a zoning decision in the district court. 2021-0139, p. 4 (La. App. 4 Cir. 12/9/21), 332

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So.3d 1251, 1254. After conducting a hearing and taking the matter under

advisement, the district court remanded the matter to the City Council “for further

review and clarity as relates to the basis for their decision.” Id. The City filed a

motion for suspensive appeal of the district court’s judgment. Id. After the appeal

was lodged in this Court, we determined the appealed judgment was not a final

judgment and converted the appeal into an application for supervisory writs. Id. at

p. 5, 332 So.3d at 1254.

The judgment in 3000-3032 St. Claude Ave., LLC is similar to the judgment

in the matter herein, as both appealed judgments relate to zoning decisions that the

district court remanded to the respective administrative bodies. Just as this Court

determined the judgment in 3000-3032 St. Claude Ave., LLC was not a final

judgment, we find the district court’s May 30, 2024 judgment is not a final judgment.

“An appeal erroneously taken on a nonappealable judgment may be converted

to an application for supervisory writ by the appellate court, but only when the

motion for appeal has been filed within the thirty-day period allowed for the filing

of an application for supervisory writ under Rule 4-3 of the Uniform Rules-Courts

of Appeal.” Louisiana-Annunciation Condo. Assoc., Inc., 2023-0327, p. 10, 377

So.3d at 812. In this case, the City filed a motion for suspensive appeal on June 18,

2024, and an order granting the appeal was signed on June 21, 2024. Additionally,

Mr. Hernandez filed a motion for devolutive appeal on June 28, 2024, and an order

granting the appeal was signed on July 1, 2024. Both the City and Mr. Hernandez

demonstrated their intent to seek review within thirty days of the district court’s May

30, 2024 judgment. Accordingly, we exercise our discretion and convert the June

18, 2024 and June 28, 2024 appeals to applications for supervisory writs.

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STANDARD OF REVIEW

This Court has previously explained the applicable appellate standard of

review regarding BZA decisions as follows:

District courts have original jurisdiction to review decisions of an
administrative body, such as the BZA. Dupuis v. City of New Orleans
through Zoning Bd. of Zoning Adjustments, 2017-0052, p. 2 (La. App.
4 Cir. 8/2/17), 224 So.3d 1046, 1048. See also, e.g., Gertler v. City of
New Orleans, 346 So.2d 228, 233 (La. App. 4 Cir. 1977); River Oaks–
Hyman Pl. H. Civ. A. v. City of New Orleans, 281 So.2d 293 (La. App.
4 Cir., 1973)(“when a district court reviews a decision of an
administrative body, it is exercising ‘exclusive original jurisdiction’ ”)
(citations omitted). The Courts of Appeal, then, exercise appellate
jurisdiction over district court decisions concerning the review of
decisions of zoning boards. Dupuis, [20]17-0052, p. 3, 224 So.3d at
1049. Thus, “[a] reviewing [appellate] court does not consider whether
the district court manifestly erred in its findings, but whether the zoning
board acted arbitrarily, capriciously or with any calculated or
prejudicial lack of discretion.” King v. Caddo Par. Com'n, 97-1873, pp.
14-15 (La. 10/20/98), 719 So.2d 410, 418.

Vieux Carre Prop. Owners, Residents & Associates, Inc. v. City of New Orleans

Through Bd. of Zoning Adjustments, 2021-0687, pp. 2-3 (La. App. 4 Cir. 4/6/22),

337 So.3d 979, 981-82.

DISCUSSION

Although the City and Mr. Hernandez assert several assignments of error, the

dispositive issue is whether the BZA’s decision to deny LTPOA’s appeal was

arbitrary and capricious.4 There is a rebuttable presumption that zoning board

decisions are deemed to be valid by reviewing appellate courts, and a party aggrieved

4 On appeal, Mr. Hernandez asserts three assignments of error: (1) the district court erred in finding

the BZA’s denial was arbitrary, unreasonable, and an abuse of discretion, because the motion to
deny did not receive a second vote; (2) the district court erred when it remanded the matter back
to the BZA and ordered a vote by the entire Board because there is no law that requires a vote by
the entire Board; and (3) the district court erred in vacating the BZA’s decision in BZA Docket
No. 041-23 because the administrative record demonstrates there was documented legal history of
two dwelling units on the Property under CZO Sec. 20.3.W.1.a. The City asserts two assignments
of error, which are identical to Mr. Hernandez’s second and third assignments of error.

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by a BZA decision may seek judicial review through a writ of certiorari. Id. at p. 3,

337 So.3d at 982. “The presumption is sufficiently rebutted if the reviewing court

determines that the evidence fails to establish a legal and substantial basis for the

decision or that the BZA has exceeded its jurisdiction and acted in an arbitrary and

capricious manner.” Id. In the context of zoning decisions, “[t]he terms ‘arbitrary

and capricious’ mean willful and unreasoning action, absent consideration and in

disregard of the facts and circumstances of the case.” Id. (citing Toups v. City of

Shreveport, 2010-1559, p. 3 (La. 3/15/11), 60 So.3d 1215, 2017). An action of a

zoning commission will be disturbed only when it is determined that such action is

“palpably unreasonable, arbitrary, [or] an abuse of discretion….” Id. at pp. 3-4, 337

So.3d at 982 (citing City of Baton Rouge/Par. Of E. Baton Rouge v. Myers, 2013-

2011, p. 6 (La. 5/7/14), 145 So.3d 320, 327-28). “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.” Id. at p. 4, 337 So.3d at 982 (citing Toups, 2010-1559, pp. 3-4, 60

So.3d at 1217).

In the matter herein, the Director decided to issue a building permit after

finding Mr. Hernandez submitted adequate information documenting a legal history

of the rear structure of the Property being used as a dwelling unit and allowed as an

Established Two-Family Dwelling under CZO Sec. 20.3.W.1. LTPOA appealed the

Director’s decision to the BZA. During the May 1, 2023 BZA meeting, the Board

considered the following: the administrative record, public comment, presentation

from the Department of Safety and Permits, and the CZO. Five of the seven Board

members were in attendance; therefore, there was a quorum present for the Board to

vote on the appeal. After deliberations, there was a motion to deny the appeal and

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affirm the Director’s decision. However, there was no second, and the motion to

deny failed. Subsequently, there was a substitute motion to grant the appeal and

overturn the Director’s decision. This substitute motion was seconded, but it failed

by a 2-3 vote. Finally, there was another substitute motion to defer the appeal for

thirty days. This second substitute motion was seconded, but it failed by a 2-3 vote.

Board of Zoning Adjustments Rule III(G) of the BZA’s Administrative Rules,

Policies & Procedures provides, in pertinent part, that “[t]he concurring vote of four

(4) members of the Board shall be necessary to reverse any order, requirement,

decision or determination of the Director of Safety and Permits….” Likewise, La.

R.S. § 33:4727(D)(2) requires the concurring vote of a majority of the BZA to

reverse any decision of the administrative official. This Court has previously held

that the failure to adopt a motion by the concurring vote of four BZA members to

authorize a variance (which is similar to overturning the decision of the Director)

results in the denial of the application. Old Carrolton Neighborhood Ass’n v. City of

New Orleans ex rel. its Bd. of Zoning Adjustments, 2003-0711 (La. App. 4 Cir.

10/1/03); 859 So. 2d 713. In this case, because there was no motion properly passed

to affirm or overturn the Director’s decision, by the concurring vote of four

members, LTPOA’s appeal was denied.

Regardless of the basis for the denial of LTPOA’s appeal – be it that the

motion to deny appeal would have received a second and the requisite four votes to

pass, or as was the case, the appeal was denied because there was no motion properly

passed to overturn the Director’s decision – the fact remains the BZA denied the

appeal. Based on the record before this Court, we find the BZA’s failure to approve

the appeal and overturn the Director’s decision was arbitrary and capricious. “The

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

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action is reasonable under the circumstances.” 3000-3032 St. Claude Avenue v. City

of New Orleans, 2022-0813, p. 14 (La. App. 4 Cir. 6/22/23), 368 So.3d 1160, 1171-

72. (quoting 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). “‘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.” Id. at pp. 14-15, 368

So.3d at 1172.

In the matter herein, the Director found the evidence submitted by Mr.

Hernandez was sufficient for a determination of a legal documented history of an

Established Two-Family Dwelling. Comprehensive Zoning Ordinance Section

20.3.W.1 provides, in pertinent part:

An established two family or multi-family use must meet the following
requirements, as confirmed by Safety and Permits:

a. The structure must have a documented legal history of two units for
a two-family dwelling or 4 or fewer units for a multi-family
dwelling, as confirmed by Safety and Permits, where documented
legal history is determined based on evidence of dwelling units
which currently exist but may not be operating on a given property;
OR
…

d. Legal, nonconforming status has been confirmed by the Department
of Safety & Permits.

Assuming the rear structure obtained legal, nonconforming status, it is undisputed

that it loss this status under CZO Sec. 25.3.C5 due to non-use of the rear structure

5 Comprehensive Zoning Ordinance Section 25.3.C(1) states:

A particular use that is established as nonconforming is deemed abandoned when
that particular nonconforming use is discontinued or becomes vacant or unoccupied
for a continuous period of one-hundred eighty (180) days. An abandoned
nonconforming use may not be re-established or resumed regardless of intent. Any
subsequent occupancy shall comply with all regulations of the zoning district in

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for more than 180 days. Therefore, in order to find the Property was an Established

Two-Family Dwelling Mr. Hernandez had to show a documented legal history of

the two dwelling units.

Comprehensive Zoning Ordinance Section 26.6 defines dwelling unit as “[a]

room, or group of rooms, providing complete, independent living facilities,

including permanent provisions for living, sleeping, eating, cooking and sanitation

for one or more persons.” During the permitting and verification process, Mr.

Hernandez produced photographs and hand-drawn sketches of the rear structure. The

exterior photographs showed exterior brick of the rear structure matched the exterior

brick of the principal structure, which would indicate that both structures were built

at or near the same time. The interior photographs of the rear structure showed a

bathroom with tilework that appeared decades old, kitchen, laundry room, bedroom,

and living space. However, these photographs did not depict a stove, oven, or other

actual cooking facilities that would indicate this rear structure contained full kitchen

facilities. The lack of independent cooking facilities reveals that this rear structure

should not have been considered a separate dwelling unit.

Mr. Hernandez also produced a notarized letter from the previous owner, S.

Guilbault, dated October 19, 2022, which stated:

This letter is to verify that the apartment in the back has been a
pat [sic] of this home and was completed 1982 or 1983. There
have been some updates on it since. This was my Family home,
that I sold to Celso Eric Hernandez 2/25/2022.

which the land or structure is located. Where a nonconforming use has ceased
operation for renovations in conjunction with a lawfully issued building permit, the
nonconforming use shall restore operation within one-hundred eighty (180) days of
the cessation of the use.

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This letter provides no basis for a finding that the rear structure was a separate

dwelling unit. Besides the use of the term “apartment,” the letter does not evidence

the rear structure was used separate and apart from the principal structure – the

single-family home. Further, when this matter was appealed to the BZA, Mr. S.

Guilbault submitted an affidavit, dated April 21, 2023, stating: (1) the Property was

his childhood residence; (2) the Property’s backyard is entirely comprised of a

swimming pool and pool cabana; (3) the Property was always a single family

residence; (4) the pool cabana was never rented or leased; and (5) his mother, Ms.

Covington, convalesced and spent her final days in the pool cabana due to her illness

and inability to climb stairs in the main residence. This affidavit supports a finding

that the rear structure was not a separate, two-family dwelling unit. Although Ms.

Covington convalesced in the rear structure in her later years, this was an exceptional

circumstance due to her illness and inability to utilize the main residence. At the

BZA hearing, Mr. S. Guilbault testified that he resided in the rear structure from age

twenty to twenty-six, and then again later on in time with his daughter until he

purchased a house in Gonzales. Nevertheless, there was no evidence of anyone

outside of the Covington-Guilbault immediate family residing in the rear structure.

Additionally, Mr. Hernandez produced Orleans Parish Tax Assessor’s

records, which described the rear structure as a pool cabana. A cabana is “[a]n

accessory building or a portion of the main building used as a bathhouse or dressing

area in connection with a swimming pool or tennis court.” CZO Sec. 26.6. According

to CZO Sec. 21.6 Z, a full kitchen with cooking facilities is prohibited in a cabana;

however, a bathroom, wet bar, counter space, cabinets, and a refrigerator are all

allowed. The interior photographs produced to the Director depict precisely those

amenities that are permitted in a pool cabana, not a separate dwelling unit. Further,

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while “[u]se of a pool house/cabana as temporary sleeping quarters or a dwelling

unit is prohibited” under CZO Sec. 26.6 and the Covington-Guilbault family used

the rear structure as living space at a certain point in time, there was no evidence that

they did so independent of using the principal structure’s cooking facilities.

Leading up to the BZA hearing, individuals and organizations submitted

letters and emails supporting LTPOA’s appeal of the Director’s decision. Well over

twenty residents of the Lake Terrace neighborhood submitted correspondence

expressing their support of appealing the Director’s decision. Additionally, the

Lakefront Management Authority6 submitted a letter supporting LTPOA’s appeal,

which provided, in part, “‘All lots in squares No. 1 thru 18 and No. 20 thru 33 of the

Lake Terrace Subdivision shall be devoted to single family dwelling’. The site in

question is in Square 30 and would appear to clearly fall within this condition.”

The record unequivocally shows that although the principal and rear structures

were constructed at or near the same time, (1) the Property is located in Single-

Family Residential District; (2) the rear structure was never rented or leased; (3)

there is no separate utility line for the rear structure; (4) the rear structure does not

contain cooking facilities independent from the principal structure; (5) no one

outside of the Covington-Guilbault immediate family resided in the rear structure;

and (6) Ms. Covington convalesced in the rear structure due to the exceptional

6 According to the Lakefront Management Authority’s April 18, 2023 letter addressed to the

New Orleans City Planning Commission’s Executive Director:

The Lakefront Management Authority (LMA) is a political subdivision of the State
of Louisiana and the governing authority of the non-flood protection assets of the
Orleans Levee District (“OLD"). The LMA was created in the wake of Hurricane
Katrina and has management and control of the OLD non-flood assets. The OLD
developed the land in the 1930s starting from the Lake Ponchartrain Seawall and
extending to Allen Toussaint Dr. Lake Terrace subdivision is one of the areas that
the OLD created and developed and once the home sites were sold, the OLD
retained the obligation for reviewing building restrictions in that subdivision.

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circumstance of her illness. As such, based on the overwhelming evidence in the

record that established the rear structure was not a separate dwelling unit from the

principal structure, we find the BZA’s failure to approve the appeal and overturn the

Director’s decision was arbitrary and capricious.

The district court correctly determined the BZA’s denial of LTPOA’s appeal

was “arbitrary, unreasonable, and an abuse of discretion” and vacated the BZA’s

May 1, 2023 decision and May 11, 2023 disposition denying LTPOA’s appeal of the

January 31, 2023 zoning verification. However, the district court incorrectly

remanded this matter to the BZA “for a full evidentiary hearing and vote by the entire

Board.” There is no rule or law that requires the vote of the entire Board. “A quorum

of the Board shall consist of four (4) members,” and “[t]he concurring vote of four

(4) members of the Board shall be necessary to authorize…any other permissible

action of the Board…” including reversing the decision of the Director. BZA Rules

II(H) and III(G). By finding the BZA’s decision was arbitrary, the district court had

the authority to reverse the Director’s decision. See La. R.S. 33:4727 E.7 As such,

7 Louisiana Revised Statutes 33:4727 E states:

(1) Any person or persons jointly or severally aggrieved by any decision by the
board of adjustment of any officer, department, board, or bureau of the
municipality, may present to the district court of the parish or city in which the
property affected is located a petition, duly verified, setting forth that the decision
is illegal, in whole or in part, specifying the grounds of the illegality. The petition
shall be presented to the court within thirty days after the filing of the decision in
the office of the board.
(2) Upon the presentation of such petition the court may allow a writ of certiorari
directed to the board of adjustment to review the decision of the board of adjustment
and shall be prescribed therein the time within which a return may be made and
served upon the relator's attorney, that shall be not less than ten days but which may
be extended by the court. The party requesting the appeal or writ shall bear the costs
of transcribing the auditory recording of the meeting in which the adverse board of
adjustment decision was rendered.
(3) The board of adjustment shall not be required to return the original papers acted
upon by it, but may return certified or sworn copies thereof or such portions thereof
as may be called for by the writ. The return shall concisely set forth such other facts
as may be pertinent and material to show the grounds of the decision appealed from
and shall be verified.

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the district court erred in remanding the matter to the BZA and should have issued a

judgment granting LTPOA’s appeal and reversing the Director’s decision.

Accordingly, we render judgment granting LTPOA’s appeal of the BZA’s May 1,

2023 decision and May 11, 2023 disposition and reversing the Director’s decision.

DECREE

For the foregoing reasons, we dismiss LTPOA’s motion to dismiss appeal for

lack of jurisdiction; convert the June 18, 2024 motion for suspensive appeal and June

28, 2024 motion for devolutive appeal to applications for supervisory writs; grant

the writs; affirm in part the district court’s ruling that the BZA’s denial of LTPOA’s

appeal was “arbitrary, unreasonable, and an abuse of discretion”; reverse in part the

district court’s remand of the matter to the BZA “for a full evidentiary hearing and

vote by the entire Board”; and render judgment granting LTPOA’s appeal of the

BZA’s May 1, 2023 decision and May 11, 2023 disposition and reversing the

Director’s decision.

MOTION TO DISMISS APPEAL DISMISSED; APPEALS
CONVERTED TO WRITS; WRITS GRANTED; AFFIRMED IN
PART, REVERSED IN PART; JUDGMENT RENDERED.

(4) If, upon the hearing, it shall appear to the court that testimony is necessary for
the proper disposition of the matter, it may take additional evidence or appoint a
referee to take such evidence as it may direct, the cost of which shall be borne by
the party who initiated the appeal, and report the same to the court with his findings
of fact and conclusions of law, which shall constitute a part of the proceedings upon
which the determination of the court shall be made.
(5) The court may reverse or confirm, wholly or in part, or may modify the decision
brought up for review. Costs shall not be allowed against the board unless it appears
to the court that it acted with gross negligence, in bad faith, or with malice in
making the decision appealed from. All issues in any proceedings under this Section
shall have preference over all other civil actions and proceedings.

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