Opinion Number ( 1994 )

Dear Mr. Hernandez:

Your request for an opinion of the Attorney General regarding the Zachary Board of Adjustment has been assigned to me for consideration and response. Your request concerns the jurisdiction of the recently appointed Board of Adjustment. Specifically, you ask:

Does the Board of Adjustment, which is created by local ordinance and appointed by the city council, have the authority to hear an appeal of zoning actions taken by the local zoning commission and then by the city council? Does the Board have the authority to reverse, affirm or amend actions of the city council?

Your questions arise from a complaint filed against the City of Zachary with respect to a decision made by the zoning commission and then appealed to the City Council, which prior to appointment of the Board served as the local board of adjustment. On appeal, the City Council ruled against the complainant who then asked for a hearing before the newly appointed Board of Adjustment.

Since the receipt of your opinion request, I have been informed that the Board of Adjustment has refused to hear an appeal of the City Council's decision on the basis that the Board has no jurisdiction over this particular case.

Your question, therefore, is essentially whether the Board of Adjustment may be convened to hear an appeal of actions taken by the City Council in a matter which originated prior to the appointment of the Board of Adjustment.

LSA-R.S. 33:4724A.(1) provides:

The local legislative body may provide for the appointment of a board of adjustment, and in the regulations and restriction adopted pursuant to the authority of R.S. 33:4721 through R.S. 33:4729 may provide that the board may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules contained therein.

Thus, according to LSA-R.S. 33:4727A.(1) the City Council is permitted to create a Board of Adjustment. Any person aggrieved by a decision of the local administrative officer may file an appeal with the Board within a reasonable time. LSA-R.S.33:4727A.(2)(a).

Upon creation by the City Council, the Board of Adjustment acts in place of the local City Council and exercises the Council's legislative power for purposes of hearing appeals concerning zoning issues. The Board of Adjustment has jurisdiction, or power, to hear appeals of those cases which arise once the Board has been created. Unless specifically provided for by the City Council, the Board would have no power to hear the appeal of a matter pending before the City Council prior to creation of the Board.

Further, it is the opinion of this writer that to require an aggrieved person to exhaust another level of appeal imposed by the City Council while his or her case is pending, before being able to exercise his or her statutory right to appeal to the local district court, would be overly burdensome.

Therefore, it is the opinion of this office that the Board of Adjustment has the authority to hear the appeal of those cases which arise after the creation of the Board by the City Council and not those cases which were pending before the City Council prior to the Board's creation.

I hope that this has adequately answered your question. If you require any further assistance, please do not hesitate to call upon this office.

Yours very truly,

RICHARD P. IEYOUB Attorney General

BY: GINA M. PULEIO Assistant Attorney General RPI/GMP:pb/2065o