
    Jose and Elsa ANTUNEZ v. CITY OF NEW ORLEANS BOARD OF ZONING ADJUSTMENTS.
    No. 2015-CA-0406.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 2016.
    Halima N. Smith, Law Office of Halima Narcisse Smith, LLC, New Orleans, LA, for Plaintiff/Appellee.
    Gregory J. Feeney, Assistant City Attorney/Adam J. ’ Swensek, Deputy City Attorney, Cherrell R. Simms, Senior Chief Deputy City Attorney, Sharonda R. William, Rebecca H. Dietz, City Attorney, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge PAÍJL A. BONIN, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

JjThis appeal is taken from the district court’s reversal of the City of New Orleans’ Board of Zoning Adjustments (BZA) decision to deny a variance. For the reasons-that follow, we reverse the district court’s ruling and reinstate the BZA’s decision.

Procedural History

The plaintiffs, Jose and Elsa Antunez, are the owners of property located at 603 Desire Street, New Orleans, Louisiana. They began construction of a camelback addition on their home prior'to obtaining a building permit. Subsequently, a stop work order was placed on the property until plaintiffs complied with the City of New Orleans’ Comprehensive Zoning Ordinances (CZO).

To comply with the CZO requirements, a building permit was obtained and the plans were submitted to the Historic District Landmarks Commission (HDLC) for review. The HDLC informed the plaintiffs that a zoning variance would be needed for the rear yard setback. Although the €ZO-requires a setback of twenty feet (20’), the plaintiffs’ home site was grandfathered in for a seventeen feet, four |2inch (17’4") setback. However, the completion of the camelback addition would leave only a setback of three feet (3’). The plaintiffs then applied to the BZA for a zoning variance.

The BZA denied the plaintiffs’ application for the zoning variance because the plaintiffs failed to establish that the property met the necessary criteria to warrant a variance. The plaintiffs appealed that decision.to the Civil District Court for the Parish of Orleans. The district judge conducted a hearing and the matter was taken under advisement. A judgment was later issued reversing the BZA’s decision. The judgment stated that the BZA’s denial was arbitrary, capricious, and an abuse of discretion. This appeal followed.

On appeal, the BZA argues that the district court erred in reversing the BZA’s denial of the plaintiffs’ variance request based on a finding that it was arbitrary, capricious, and an abuse of discretion.

Standard of Review

It is well established that “the decisions of the BZA, while subject to judicial review under La. R.S.33:4727(e), are subject to a presumption of validity and are subject to judicial review only as to whether they are arbitrary, capricious or ah abuse of discretion.” BZA decisions are subject to a presumption of validity and the appellate court should not second guess the BZA or substitute its own judgment for that of the BZA.

_J^Discussion

In determining whether to grant or deny a variance, • the BZA analyzes nine criteria set forth in CZO, Art. 14 § 14.6.4. To grant the variance, all nine of the criteria must be met. Prior to the BZA hearing on the variance, the BZA staff composes a report that discusses each of the nine criteria and provides a recommendation. In this case, the report recommended that the variance be denied.

This Court recognizes that the staff report is “preliminary in nature and essentially does little more than to summarize the issue for the Board. It is only Lone consideration the Board uses in making its decision.” However, the record before this Court does not contain anything that would suggest that the plaintiffs, representing themselves, offered anything additional at the hearing for the BZA tó consider. Ultimately, the BZA voted to deny the variance.

Subsequently, the plaintiffs obtained counsel for the filing of an appeal in the district court. On appeal, the plaintiffs used the BZA’s staff report to establish that the denial of the variance was arbitrary, capricious, and an abuse of the BZA’s discretion. Essentially, the plaintiffs maintained that because the BZA acknowledges that three other variances resulting in three feet (3’) setbacks were granted, then a denial in this case is per se arbitrary, capricious and an abuse of discretion. Additionally, they argue that because the adjacent property that would be most significantly impacted is blighted it should not be provided the same level of protection from encumbrances.

In the staff report, two of the three variances granted are distinguished from the plaintiffs’ property. The first of those variances involved an unusually shallow lot and allowed for a new residence on approximately the same footprint as the previous residence. ' The next variance-was granted to the owner of an L-shaped lot that was split between two (2) zoning districts. That variance allowed for the replication of a historic structure that occupied the property in the 1840s on that Usame footprint. According to the staff report, the third variance was similar in nature to the current request, and the staff recommendation also recommended denying the request. At the hearing for that variance the Board chose to grant the request. This Court is not privy to any other information on that variance. However, given the distinguishing factors of the other two granted variances, we cannot find that the limited information we have on the one previous variance constitutes a significant enough precedent to support the district court’s judgment.

As for the blighted property, it is unclear from the record if the condition of the adjacent property was raised prior to the appeal. The staff report indicates that the twenty-eight foot (28’) structure would be highly visible and could substantially reduce the supply of light to the rear yard of 3413 Chartres Street. The record does indicate that the plaintiffs did attempt to introduce pictures and other evidence regarding the blighted condition of 3413 Chartres Street on appeal and the BZA objected to the introduction of new evidence. However, the BZA did not dispute that the property was blighted, but simply maintains that it is not a factor in the analysis of the variance for the plaintiffs. More specifically, the BZA emphasizes that the plaintiffs fail to cite to any authority, legal or otherwise, to support their assertion that blighted property is viewed differently than other properties for the purpose of a variance. The BZA also stresses that encroaching on blighted property may negatively impact the later development of such property.

IfiBased on the record, the plaintiffs failed to meet the necessary nine criteria to warrant the granting of the variance, and there is nothing to support a finding that the BZA acted arbitrarily, capriciously and abused its discretion. Therefore, the district court erred in reversing the BZA’s decision to deny the requested variance. Accordingly, we reverse the district court’s decision and reinstate the BZA’s decision.

REVERSED

TOBIAS, J., concurs.

BONIN, J., dissents with reasons.

TOBIAS, J.,

concurs.

hi respectfully concur in the decision of the majority. Based upon the record established before the Board of Zoning Adjustments (“BZA”), the trial court erred in reversing the BZA’s decision. I write separately to note that in my view, the New Orleans Comprehensive Zoning Ordinance (“CZO”) envisions situations such as that currently before us. Section 3.2E of the CZO states:

1. An application for a zoning text or map amendment, conditional use, planned development, or variance that has been denied will not be reviewed or heard within two (2) years of the date of denial unless substantial new evidence is available or a significant mistake of law or of fact affected the prior denial. The official charged with receiving applications in Table 3-1 shall decide whether the subsequent application is appropriate for resubmittal before expiration of the two (2) year wait requirement.
2. An application resubmitted earlier than two (2) years from the date of denial shall include a detailed statement of the grounds justifying its consideration.
3. Unless substantial new evidence is available or a significant mistake of law or fact affected the prior denial, the official shall return the application to the applicant and it shall not be docketed.
4. The limitations of this section do not apply in the following instances:
a. When the City initiates the application.
b. When the Board of Zoning Adjustments has denied the application without prejudice.

BONIN, J.,

dissents with reasons.

|tI respectfully dissent. Because I conclude that the district judge did not err when he found that the Board of Zoning Adjustments was arbitrary and capricious in its denial of the Antunezes variance request, I would affirm the district court’s ruling. I, therefore, respectfully dissent and explain my reasons.

A party aggrieved by a decision of the Board of Zoning Adjustment is entitled to judicial review by a district court through a writ of certiorari directed to the Board. See La. R.S. 33:4727 E; Vieux Carre Property Owners v. City of New Orleans, 14-0825, p. 7 (La.App. 4 Cir. 4/15/15), - So.3d --, -, 2015 WL 1736870, writ denied, 15-1147 (La.09/18/15), 178 So.3d 149. Because Section 4727 E is silent on the applicable standard of review, the general provisions of the Administrative Procedure Act also apply. See Gebre v. City of New Orleans, 14-0904, 14-0905, p. 20 (La.App. 4 Cir.10/7/15), 177 So.3d 723, 737; DMK Acquisitions & Properties, L.L.C. v. City of New Orleans, 13-0405, p. 8 (La.App. 4 Cir.9/18/13), 124 So.3d 1157, 1162-1163. Defining the scope and standards for | ¿judicial review of agency decisions, Section 964 G of Title 49 of the Louisiana Revised Statutes, indicates that a district court sitting in review of an agency decision “may affirm the decision of the agency or remand the case for further proceedings.” A district court is also empowered by Section 964 G to reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6)' Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination, and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

The purpose of such review, accordingly, “is to determine whether the evidence establishes, a legal and substantial basis for the decision or whether the. BZA has exceeded its jurisdiction and acted in an arbitrary and capricious manner.” Vieux Carre Property Owners, 14-0825, p. 6, — So.3d at -.

As part of its certiorari review, the district judge must “first determine- or establish whether or not the decision of. the board or administrative, agency is supported by substantial and competent evidence adduced in proceedings which are regular and orderly.” Gertler, 346 So.2d at 233. In order to facilitate this review process Section 4727 places the burden of producing the record upon the Board, although the party requesting the appeal is obligated by statute to “bear the 1¡¡costs of transcribing the auditory recording of the meeting in which the adverse” decision was rendered, See La. R.S. 33:4727. E(2). Section 4727 E, specifically, instructs the Board of Zoning Adjustment upon receipt of a writ of certiorari to return tó the district court original, certified or sworn copies of those “papers acted upon by it” and concisely “set forth [in its return] such other facts as may be pertinent and material to show the grounds of the decision appealed from.” See La. R.S. 33:4727 E(2)(3).

After examining the Board’s return to the Antunezes’ petition, I cannot ascertain what, if any, evidence was introduced at the, Antunezes’ hearing or the facts and materials relied upon by the Board to deny the claim. That is, neither the Board’s written disposition of the variance request, nor its return to the Antunezes’ Writ of .Certiorari, identifies the facts and evidence relied upon by it in denying the variance request. Further, those documents attached to the return are neither original, certified, nor sworn copies of the “papers acted upon by” the Board. La.' R.S. 33:4727 E(3). And, in spite of the-'clear provisions of Section 4727 E(3), the Board’s return was not verified. I also note that none of these documents — indeed no evidence at all — was formally introduced into the district court’s'record by the Board at the hearing on the Antu-nezes’ petition. And while the Board provided the district judge with a link to an online video ■ of the Antunezes’ hearing, these, proceedings were neither transcribed for the record or imprinted upon a disc and introduced into evidence. See, e.g., La. C.E. art. 1003.1, and Uniform Rules, Courts of Appeal, Local Rule 24 concerning electronic audio and video evidence. The Antunezes, on the other hand, attempted to introduce additional evidence in support of their claim at the trial of their petition, but the district judge, being of the opinion that he could not consider new evidence, refused their offer.

14Although the record indicates that certain documents were appended to the parties’ trial court .pleadings, the jurisprudence provides clearly that arguments, memoranda, and pleadings are not evidence. See Coston v. Seo, 12-0216, p. 10 (La.App. 4 Cir. 8/15/12), 99 So.3d 83, 89. “Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence.” Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88. In other words, “[e]vidence not properly and officially offered and introduced cannot be considered, ev.en if it is physically placed in the record.” Id.

The record before the district court, therefore, did not identify the evidence introduced at the hearing before the Board, or set out the reasons underlying the Board’s decision. When evaluating the Antunezes’ claims in light of Section 964 G’s standard of review, the district judge, therefore, was confronted with something resembling more of' a tabula rasa than' a record comprised of competent evidence. “Generally, ‘capriciously’ has been defined as a conclusion of a commission when the conclusion is announced with no substantial evidence to support it, or a conclusion contrary to substantiated competent evidence.” Coliseum, Square Ass’n v. City of New Orleans, 544 So.2d 351, 360 (La.1989). Similarly, the word “arbitrary!’ implies .a disregard of evidence or of the proper weight thereof. See id. Given the record’s absence of substantial and competent evidence, and the Board’s failure to document the reasons underlying its. denial, I conclude that the district judge did not err when he found that the Board was arbitrary and capricious in its denial of the Antunezes variance request. Any other result constitutes, in my opinion, a gross departure from proper administrative and judicial proceedings.

RFor these reasons, I would affirm the district court’s judgment reversing the Board of Zoning Adjustment’s June' 9, 2014 denial of the Antunezes’ request for a variance. But, if the judgment is to be reversed, in my view the correct remedy is to remand the matter- to the district court for an evidentiary hearing or a further remand to the Board of Zoning Adjustments in accord with the controlling administrative procedures. See La. R.S. 33:4727 E; La. R.S. 49:964 G. 
      
      . Ellsworth v. The City of New Orleans, 13-0084, pp. 6-7 (La.App. 4 Cir.7/31/13), 120 So.3d 897, 902 (quoting French Quarter Citizens for Preservation of Residential Quality, Inc. v. New Orleans City Planning Comm'n, 99-2154, p. 3 (La.App. 4 Cir.4/12/00), 763 So.2d 17, 18-19).
     
      
      . Millaud v. City of New Orleans, 13-1152, p. 6 (La.App. 4 Cir.4/30/14), 137 So.3d 1289, 1292-93.
     
      
      . 1. Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district.
      2. Literal interpretation of the provisions of this Ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this Ordinance.
      3. The special conditions and circumstances do not result from the actions of the applicant or any other person who may have or had interest in the property.
      
        4. Granting the variance requested will not cortfer on the applicant-any special privilege which is denied by this Ordinance to .other lands, structures, or buildings in the same district or similarly situated.
      5. The variance, if granted; will not alter the essential character of the locality.
      6. Strict adherence to the regulation for the properly would result in a demonstrable hardship upon the "owner, as distinguished from mere inconvenience.
      7. 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(s).
      8. The granting of the variance will not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located.
      9. The proposed variance will not impair an 'adequate supply of light and air to adjacent property, or increase substantially the congestion in the public street, or increase the danger of fire, or endanger the public safety. CZO, Art. 14 § 14.6.4(l)-(9).
     
      
      . McPherson v. City of New Orleans Board of Zoning Adjustments, 04-1129 (La.App. 4 Cir.5/11/05), 902 So.2d 573 (unpub.).
      
     
      
      . The plaintiffs’ variance application has a letter to the .board' members describing the request and> stating: “[m]y family has grown and I have no need for a back yard, so I decided to add to our existing living space instead.” There was also an email from a neighboring property owner .opposing the variance. All other materials relate to the land site and proposed plans.
     
      
      . Although the plaintiffs suggest that the existence of the other variances satisfy all but one of the nine (9) criteria, the existence of nearby properties with similar variances really impacts the analysis of nurribers two, four, and five of the nine criteria of CZO, Art. 14 § 14.6.4.
     
      
      . The property address is 707 Clouet Street.
     
      
      . The staff report referenced the impacts on 3413 Chartres Street in its analysis of criteria eight (8) and nine (9).
     
      
      . See also Gertler v. City of New Orleans, 346 So.2d 228, 232 (La.App. 1977), citing 14 Am. Jur.2d Certiorari, Sec. 2 Nature and office of writ, pp. 778-779: " 'The function of a writ of certiorari is to correct substantial error's of law committed by a judicial or quasi-judicial tribunal which are not otherwise reviewable by a court. Its purpose is to review the findings and acts of inferior tribunals and officers exercising judicial or quasi-judicial functions, in order to determine whether their jurisdiction has been exceeded, or to ascertain whether the evidence furnishes any legal and substantial basis for the decision of the inferior tribunal.’ ”
     
      
      . Although I would affirm the district judge’s ruling on other grounds, this evidentiary ruling ' constitutes clear legal error. Section 4727 E clearly empowers a district judge to "take additional testimony or receive additional evidence as part of its consideration of such an appeal -from the board of adjust'ment.” Esplanade Ridge Civic Ass'n v. City of New Orleans, 13-1062, pp. 4-5 (La.App. 4 Cir. 2/12/14), 136 So.3d 166, 169; La. R.S. 33:4727 E(4). “Such additional evidence and testimony may be entertained whenever the district court is of the opinion that it is warranted.” . Esplanade Ridge Civic Ass’n, 13-1062, p. 5, 136 So.3d at 169. The district judge was clearly authorized to entertain new evidence, yet refused to do so.
     