Georgette Rodriguez Versus City of Westwego Board of Adjustments and the City of Westwego ( 2020 )

GEORGETTE RODRIGUEZ NO. 20-CA-162
VERSUS FIFTH CIRCUIT
CITY OF WESTWEGO BOARD OF COURT OF APPEAL
ADJUSTMENTS AND THE CITY OF
WESTWEGO STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 786-433, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
December 02, 2020
ROBERT A. CHAISSON
JUDGE
Panel composed of Judges Jude G. Gravois,
Robert A. Chaisson, and John J. Molaison, Jr.
AFFIRMED
RAC
JGG
JJM
COUNSEL FOR PLAINTIFF/APPELLANT,
GEORGETTE RODRIGUEZ
Thomas G. Delsa
COUNSEL FOR DEFENDANT/APPELLEE,
CITY OF WESTWEGO BOARD OF ADJUSTMENTS AND THE CITY OF
WESTWEGO
Joel A. Levy
CHAISSON, J.
In this case concerning the denial by the City of Westwego Board of
Adjustments of a request for a variance, Georgette Rodriguez appeals a judgment
of the trial court affirming the decision of the Board. For the following reasons,
we affirm the judgment of the trial court.
BACKGROUND
Mrs. Rodriguez is the owner of a 12-unit apartment building located in the
City of Westwego. Located on the property is a dumpster used by the tenants of
the building. Mrs. Rodriguez purchased the building on September 22, 1972. It is
undisputed by the parties that the dumpster on the premises is not and has never
been enclosed by a fence.
In 1998, the City of Westwego enacted Ordinance Section 38-13, which
provides:
Sec. 38-13 - Fences enclosing dumpsters.
(a) A fence of at least seven feet in height shall enclose all dumpsters
located within the city. This fence shall be made of an opaque
material such as wood, earth berm, opaque hedge, or any combination
thereof. If the barrier consists totally or in part of plant materials,
such materials shall be planted in a strip not less than five feet in
width.
(b) The fence surrounding the dumpster shall remain closed at all
times except for entering and exiting the dumpster area and from
4:00 p.m. on the day preceding a garbage collection day until
5:00 p.m. on collection day or whenever the garbage is collected.
(c) The fence surrounding the dumpster for multifamily dwellings
shall enclose at a minimum three sides of the dumpster.
On March 18, 2011, Mrs. Rodriguez received a written notice of violation of
the ordinance from the City of Westwego, Office of Code Enforcement
Administration (Case # CE-11-03-004) which stated that the dumpster at the
property needed to be fenced in within 30 days and that a failure to do so would
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result in a city summons. A city summons was not issued until early 2018, more
than seven years later.
On May 29, 2018, purportedly upon advice from the court, Mrs. Rodriguez
filed with the City of Westwego Board of Adjustments a request for a variance “to
forgo the requirement and/or enforcement of a fence surrounding the dumpster” on
her property.
A meeting of the Board of Adjustments was scheduled and held on July 11,
2018. The Board heard testimony from Mrs. Rodriguez’s husband, Jason
Rodriguez, that enforcement of the ordinance requiring the building of a fence
around the dumpster would be a substantial hardship because it would result in
fewer parking spaces for the building. The Board also saw and considered
photographs of the dumpster and the area at issue. At the conclusion of the
meeting, the Board denied the request for a variance.
On August 8, 2018, Mrs. Rodriguez filed a petition for appeal from the
decision of the Board of Adjustments decision with the Twenty-Fourth Judicial
District Court, wherein she argued that the variance should have been granted
because the City’s ability to enforce the ordinance had prescribed pursuant to La.
R.S. 9:5625 and that the Board of Adjustments had acted with gross negligence, in
bad faith and with malice in making its decision.
At the hearing before the trial court, no parties introduced any new evidence
into the record as is permitted in such appeals pursuant to La. R.S. 33:4727(E)(4).
The 2011 Office of Code Enforcement Administration citation letter, while
attached to petitioner’s memorandum, was not introduced into evidence.
DISCUSSION
A prima facie presumption of validity attaches to zoning board actions.
Freeman v. Kenner Bd. of Zoning Adjustments, 09-1060 (La. App. 5 Cir. 4/27/10),
40 So.3d 207, 212 (citing Parish of Jefferson v. Davis, 97-1200 (La. App. 5 Cir.
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6/30/98), 716 So.2d 428, 433). A reviewing court cannot substitute its own
judgment or interfere absent a showing by the appellant that the board was
arbitrary and capricious or abused its discretion. Id. The person who opposes a
zoning board’s decision bears the burden of proving that the decision was arbitrary,
capricious, and an abuse of discretion, or palpably unreasonable. Metairie Club
Gardens Ass’n, Inc. v. Par. of Jefferson, 16-139 (La. App. 5 Cir. 12/28/16), 209
So.3d 1071, 1074.
The standards set forth for the granting of variances by the Board of
Adjustments is set forth in the City of Westwego’s Municipal Ordinance 34-173,
of which subsection (2) states in part:
a. In considering all appeals and all proposed variances and/or
exceptions requiring board approval, under the terms of this article,
the board shall not grant approval if it makes a finding, based on the
evidence presented to it, as indicated in the record and the transcript
of the hearing, that any of the following exist:
1. The approval, if granted, would cause other than
negligible diminution or depreciation of property
values of any surrounding property or would alter the
essential character of the locality.
2. The approval, if granted, would tend to degrade or
retard the prosperity and general welfare of the
neighborhood and community.
3. The approval, if granted, would be detrimental to the
public welfare or seriously affect or be injurious to
other property or improvements in the neighborhood in
which the property is located, in that it would: impair
an adequate supply of light and air; or increase
substantially the congestion in the public streets, create
a traffic hazard, or provide for inadequate parking; or
increase the danger of fire; or substantially affect or
overburden existing drainage or sewerage systems; or
otherwise endanger the public safety; or cause serious
annoyance or injury to occupants or adjoining
premises by reason of emission of odors, fumes, gases,
dust, smoke, noise or vibration, light or glare, or other
nuisances.
b. Additionally, the board shall not grant approval of any variance
unless it makes a further finding, as indicated in the record or the
transcript of the hearing, that:
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1. Special conditions and circumstances exist that are
peculiar to the land, structure, or building involved
and that are not generally applicable to other lands,
structures, or buildings in the same zoning district;
and the special conditions and circumstances do not
result from the intentional actions of the applicant or
any other person who may have or had an interest in
the property; and the strict adherence to the regulation
for the property would result in a demonstrable
hardship to the owner as distinguished from mere
inconvenience; or
2. Literal interpretation of the provisions of this article
would deprive the applicant of rights commonly
enjoyed by other properties in the same district under
the terms of this article; and granting the variance
requested will generally not confer on the applicant
any special privilege that is denied by this article to
other lands, structures, or buildings in the same
district or similarly situated; and the purpose of the
variance is not based exclusively upon a desire to
serve the convenience or profit of the property owner
or other interested party.
Mrs. Rodriguez does not argue that she provided evidence sufficient for the
Board to make these findings and that the Board acted arbitrarily and capriciously
in denying her request. Rather, appellant argues that La. R.S. 9:5625(A), which
provides for a prescriptive period for enforcement actions for violations of zoning
restrictions, building restrictions, or subdivision regulations, is applicable to this
matter.
Mrs. Rodriguez’s reliance on this statute is misplaced in these proceedings.
La. R.S. 9:5625(A) makes specific reference to “[a]ll actions civil or criminal,
created by statute, ordinance, or otherwise, … which may be brought by parishes,
municipalities, or their instrumentalities … to require enforcement of and
compliance with any zoning restriction, building restriction, or subdivision
regulation.” Thus, while the prescriptive period provided in La. R.S. 9:5625 is
applicable to any enforcement action brought by the zoning authority against the
property owner, it is not pertinent to the property owner’s request for a variance,
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which is distinguishable from an enforcement action. Mrs. Rodriguez
acknowledged as much in her petition for appeal wherein she stated that the matter
“City of Westwego versus Georgette Rodriguez,” Case Number C24294, was
pending upon the conclusion of her request for a variance.
Because La. R.S. 9:5625 is not pertinent to the zoning action before us, we
decline to express any opinion as to the merits of Mrs. Rodriguez’s prescription
argument here. The appropriate proceeding for Mrs. Rodriguez to raise her
exception of prescription is in any enforcement action that the zoning authority
may bring against her regarding the dumpster on her property.
As to the trial court’s judgment affirming the decision of the Board of
Adjustments denying the request for a variance, because Mrs. Rodriguez did not
carry her burden of proving that the Board’s decision was arbitrary, capricious, and
an abuse of discretion, or palpably unreasonable, we find no error in the trial
court’s judgment. Accordingly, the judgment is affirmed.
AFFIRMED
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SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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20-CA-162
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
JOEL A. LEVY (APPELLEE)
MAILED
THOMAS G. DELSA (APPELLANT)
ATTORNEY AT LAW
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