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Tolis v. Cooper
Citations: 522 So. 2d 594; 1988 La. App. LEXIS 610; 1988 WL 16000Docket: No. CA 87 0518
Court: Louisiana Court of Appeal; February 22, 1988; Louisiana; State Appellate Court
A devolutive appeal was filed regarding a trial court's decision to grant a variance to a local zoning ordinance that mandated a ten-foot side yard building setback. Arthur and Julie Brennan Tolis, owners of Lot 200 in Quail Ridge Subdivision, contested the variance granted to C. Cooper Construction Co., which owns the adjacent Lot 199. Cooper applied for a building permit on September 10, 1985, for Lot 199, despite a subdivision plat restricting side building setbacks to five feet and a zoning requirement that stipulated a ten-foot setback. Upon discovering construction preparations for a five-foot setback, Mrs. Tolis reported the issue to the Parish’s Department of Engineering, which posted a notice of potential violation on Lot 199. Despite this, Cooper proceeded with construction on November 21, 1985, after receiving contradictory guidance from Parish officials. The Tolises attended a Board of Adjustments meeting on December 10, 1985, where the Board initially denied a variance request for several lots, including Lot 199. On February 12, 1986, the Board granted Cooper a variance, prompting the Tolises to appeal, arguing insufficient notification regarding the variance request. The district court supported their claim, rescinded the variance, and remanded the case back to the Board. On September 9, 1986, the Board reconsidered Cooper's variance request, with the Tolises opposing it once again. The Board denied the variance request for lot 199, citing several key reasons: 1. The applicant's building permit application indicated a 10 ft. sideyard setback, which the builder failed to adhere to, constituting a self-created hardship. 2. The lot's characteristics did not present any unusual conditions. 3. The builder's failure to follow legal procedures, including submitting an amended plot plan before commencing construction, contributed to the issue. Despite the denial, stipulations were added: the builder would not be required to alter his structure and could receive an occupancy permit upon completion. It was noted that the governing body had accepted a subdivision plat with conflicting data, and that all parties involved bore some responsibility for the situation. The inspector noted the complainant's house had a windowless wall adjacent to the builder’s lot, and that the differing front setbacks of the houses minimized visual impact. To address this, the builder was required to implement a landscaping plan by a professional landscape architect to screen the two homes, with the option to plant on either property. The Tolises appealed the Board's decision to the district court, which ultimately ruled in favor of the defendants and modified the Board's decision to grant the variance with landscaping conditions, leading to a devolutive appeal. The Tolises argue that the district court incorrectly granted a variance to the appellee, overturning the Board of Adjustments' prior denial. The district judge emphasized that the court's role is to review, not to substitute its judgment for that of the Board. He interpreted the Board's language as indicating an intention to grant the variance, despite conflicting views presented by Mrs. Dodds. The judge concluded that the Board intended to approve the variance with specified conditions. The excerpt outlines the duties of the Board of Adjustments, which include resolving appeals from applicants denied building permits due to zoning conflicts, addressing alleged errors in decisions made by administrative offices, and granting exceptions to zoning regulations under specific circumstances. It also describes the Board's authority to grant variances, which allow for modifications in zoning requirements to alleviate unique hardships faced by property owners due to exceptional property conditions. The criteria for granting such variances include considerations of narrowness, topographical challenges, or other extraordinary situations that would impose undue hardship on the owner if strict zoning regulations were enforced. The authority for special use exceptions, however, remains unestablished. Variances from the ordinance must align with its spirit and purpose and can only be granted based on demonstrable and exceptional hardship, not for convenience, profit, or caprice. The Board of Adjustments may only authorize a variance if specific criteria are met: 1. Unique conditions exist regarding the land or structure that are not found in similar properties. 2. Strict application of the ordinance would deny the applicant rights enjoyed by others in the same zoning district. 3. The unique conditions are not a result of the applicant's actions. 4. Granting the variance does not confer special privileges denied to others in the district. 5. The locality's essential character remains unchanged. 6. Strict compliance would result in demonstrable hardship, rather than mere inconvenience. 7. The variance is not solely for the convenience or profit of the applicant. 8. Granting the variance will not harm public welfare or neighboring properties. 9. The variance will not impair light and air access to adjacent properties, increase street congestion, or pose safety risks. In this case, the Board's motion and evidence indicated that criteria (a), (c), and (f) were not satisfied. The testimony suggested that criterion (d) was also unmet. Despite Cooper's claims of special conditions due to conflicts between the restrictive covenant and zoning ordinance, existing law dictates that stricter regulations govern. Cooper's assertion that other homes had five-foot setbacks does not address the unmet criteria. Knowledge of the A-3 zoning requirement was evident to Cooper before construction began, and no demonstrable hardship existed to justify a variance since he proceeded with construction despite the non-compliance. The presence of clear zoning laws prohibits the application of equitable considerations in this situation. The Board correctly denied the variance request from Carlos B. Cooper, and the trial court erred in finding otherwise. The Tolises argued that the district court improperly allowed Cooper's violation of the A-3 Zoning side yard setback to remain subject to special landscaping conditions imposed by the Board of Adjustments (BOA). According to the BOA's Rules of Procedure, a resolution must explicitly state whether a variance application is granted or denied, and special use conditions can only be applied if a variance is granted. Since the Board denied the variance, it cannot permit the violation to continue under any conditions. The absence of evidence to justify a Special Use Exception under Article XIII further supports the conclusion that the Board acted erroneously in allowing the violation to persist. Consequently, the district court's judgment was reversed, denying Cooper's variance request, nullifying the special use conditions, and ordering the removal of any construction violating the ten-foot side yard setback within sixty days. Cooper was also held responsible for all costs associated with the proceedings. The Comprehensive Plan of St. Tammany Parish underpins the A-3 zoning regulations, aimed at promoting public welfare by managing land use and ensuring adequate public services.