holding that the BZA’s vote on a motion to grant a church’s zoning variance constituted a denial of the variance and therefore barred the BZA from rehearing same matter within one year of denial
How later courts described this case
- holding that the BZA’s vote on a motion to grant a church’s zoning variance constituted a denial of the variance and therefore barred the BZA from rehearing same matter within one year of denial
Written by the judges who cited it.
The opinion
PILOTLAND * NO. 2025-CA-0563
NEIGHBORHOOD
ASSOCIATION, WAYNE * COURT OF APPEAL
BAQUET, ASHLEY
CAPONEGRO, RASHAD * FOURTH CIRCUIT
MEYERS, BILLIE CASTLE
MYERS, AND IAM TUCKER * STATE OF LOUISIANA
VERSUS *******
THE CITY OF NEW
ORLEANS, BOARD OF
ZONING AND ADJUSTMENTS
AND ENCAMPMENT, LLC
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2024-02951, DIVISION “E-7”
Honorable Omar Mason, Judge
******
Judge Rachael D. Johnson
******
(Court composed of Judge Tiffany Gautier Chase, Judge Dale N. Atkins, Judge
Rachael D. Johnson)
Keith Adam Doley
ATTORNEY AT LAW
1554 North Broad Street
New Orleans, LA 70119
COUNSEL FOR PLAINTIFFS/APPELLANTS
Donesia D. Turner
CITY ATTORNEY
Shawn Lindsay
DEPUTY CITY ATTORNEY
CITY OF NEW ORLEANS
1300 Perdido Street
Suite 5E03
New Orleans, LA 70112
Nicholas J. Wehlen
STONE PIGMAN WALTHER WITTMANN L.L.C.
909 Poydras Street, Suite 3150
New Orleans, LA 70112
COUNSEL FOR DEFENDANTS/APPELLEES
APRIL 30, 2025 JUDGMENT REVERSED;
FEBRUARY 28, 2024 DECISION VACATED
AND REMANDED
MARCH 4, 2026
RDJ
TGC
Appellants, plaintiffs Pilotland Neighborhood Association (“Pilotland”),
DNA
Wayne Baquet, Ashley Caponegro, Rashad Myers, Billie Castle Myers and Iam
Tucker (collectively “Appellants”), seek review of the April 30, 2025 district court
judgment affirming Appellee, defendant the City of New Orleans, Board of Zoning
Adjustments’ (“the BZA”) February 28, 2024 decision, granting a variance to
Appellee, defendant Encampment St., LLC (“Encampment”), to build a multi-family
complex adjacent to the Pilotland Neighborhood. Finding the BZA erred in granting
a motion for reconsideration and holding a second vote on Encampment’s variance
requests, we reverse the district court’s judgment, vacate the BZA’s decision, and
remand this matter to the BZA to issue a decision in accordance with its initial
February 19, 2024 vote denying Encampment’s variance requests.
FACTS AND PROCEDURAL HISTORY
This is a zoning dispute arising out of Encampment’s plans to construct a
mixed multi-family housing development on a triangular-shaped lot it owns at 1100
Sere St. (“the Property”) that is bounded by Encampment St. and Interstate 610 in
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New Orleans. The Property is located in an Educational Campus District zone.1 To
construct its planned housing development and parking spaces on the Property,
Encampment filed a variance request with the BZA requesting two waivers of the
Comprehensive Zoning Ordinance (“CZO”): a waiver of the minimum lot area that
would permit construction on 1.15 acres of land rather than 2 acres of land; and a
waiver of the minimum parking spaces that would permit construction of 71 parking
spaces instead of 75 spaces. Appellants are Pilotland, an abutting subdivision of the
Property, as well as five Pilotland residents and domiciliaries, who oppose the
variances due to their concerns about density, congestion, traffic and the inadequate
lot size of the proposed development.
Prior to the hearing, the BZA’s staff recommended approval of the lot size
variance subject to two provisos, but opposed approval of the parking space
variance.2 On February 19, 2024, the BZA held a hearing on Encampment’s
1 The Comprehensive Zoning Ordinance (“CZO”) Rule 15 provides, in pertinent part, the
following definition of an Educational Campus District zone:
Commercial Center and Institutional Campus Districts represent the major
destination areas within the city. They contain districts that address areas of
commercial concentration and institutional campuses, and range from areas that are
more pedestrian in orientation to those designed to accommodate significant
parking demand. The types of commercial uses permitted within the Commercial
Center and Institutional Campus Districts are based on a number of factors,
including their proximity to residential areas, their location along major streets and
the intensity of uses allowed within the districts. In addition . . . specialized districts
for large-scale users are also destination centers, such as hospital and university
campuses. Finally, in certain districts a mixed-use environment is permitted where
higher density residential uses and vertical mixed-use is encouraged.
2 The two recommended provisos for the lot-size waiver are:
1. Prior to the issuance of a building permit by the Department of Safety and
Permits, the applicant shall submit revised site, floor, and architectural elevation
plans of the subject site to the Board of Zoning Adjustments staff for review and
approval. These plans shall reflect compliance with the Board of Zoning
Adjustments as well as the standards and requirements of Article 4, Section 4.5 as
indicated by the stamps of final approval of both the City Planning Commission
and the BZA. These shall be the plans for which the building permit is issued.
3
variance requests. After taking public comments from Encampment’s representative
and some of the Appellants, BZA board member Tamara Agins moved to approve
both of Encampment’s proposed variances, subject to the two provisos suggested by
the BZA’s staff for the lot-size waiver. The motion was seconded by BZA board
member Jason Richards. The motion failed by a vote of two yeas to three nays.
Immediately thereafter, Mr. Richards raised an “alternative proposal” or
“alternative motion,” which the BZA board chairperson Candice Richards Forest
granted. Mr. Richards then re-urged the motion to grant the lot size variance subject
to the BZA staff’s two aforementioned recommended provisos and adding a third
proviso to require a traffic study. He further moved to deny Encampment’s parking
variance. The motion was seconded by board member Todd James and was carried
by a vote of five yeas to one nay. The BZA’s decision, recording the second vote,
was filed on February 28, 2024.
Appellants later lodged a Verified Petition for Judicial Review of the BZA’s
decision with the district court, averring the BZA’s decision should be overruled
because it was unsupported by the record and the BZA abused its discretion.
Thereafter, Appellants filed an amended memorandum in support of their petition
2. The applicant shall provide a site plan and/or other documentation approved by
the Department of Public Works indicating the following:
o All necessary or otherwise proposed sidewalk repairs or modifications[.]
• Note: Sidewalk material, dimensions, and style, including landscaping
strips (where present) should generally conform to the style along the same
block face, subject to the approval of the Department of Public Works[.]
o Removal of all abandoned or nonconforming driveways and/or curb cuts in the
adjacent public right-of-way, per City Ordinance Sec. 146-153.
[•] Note: Curb cuts shall be restored with curbing matching predominant curb along
the block face, subject to the approval of the Department of Public Works.
4
for judicial review, asserting that the BZA’s decision should be overruled because it
is procedurally improper and the BZA’s initial vote to deny the variance should be
upheld. However, the presiding judge recused herself and this matter was re-allotted
from Division “N” to Division “E.” Thereafter, on April 30, 2025, the district court
rendered judgment, affirming the BZA’s decision and issued Reasons for Judgment.3
This timely appeal followed.
ASSIGNMENTS OF ERROR
Appellants raise two assignments of error: the district court erred as a matter
of law in finding that the procedure used by the BZA in voting upon the requested
zoning variance a second time was proper, and the district court erred in affirming
the BZA’s erroneous ruling, finding that all nine of the criteria required to grant the
requested zoning variance were met.
STANDARD OF REVIEW
“Zoning is a legislative function, the authority for which flows from the police
power of governmental bodies.” Racetrac Petroleum, Inc. v. City of Shreveport,
45,120, pp. 6-7 (La.App. 2 Cir. 7/21/10), 44 So.3d 800, 805 (first citing King v.
Caddo Parish Com’n, 97-1873 (La.10/20/98), 719 So.2d 410; and then citing Prest
v. Parish of Caddo, 41,039 (La.App. 2 Cir. 06/02/06), 930 So.2d 1207). “Courts
will not interfere with this legislative prerogative unless the zoning decision is
palpably erroneous and without any substantial relation to the public health, safety
or general welfare.” Id.
BZA decisions are “afforded a presumption of validity;” however, “the
presumption is rebuttable.” Esplanade Ridge Civic Ass’n v. City of New Orleans, 13-
3The district court addressed Appellants’ procedural and substantive assignments of error in its
Reasons for Judgment.
5
1062, p. 3-4 (La.App. 4 Cir. 2/12/14), 136 So.3d 166, 169 (citations omitted).
District courts have original jurisdiction to review decisions of the BZA. Greer v.
City of New Orleans Through Bd. of Zoning Adjustments, 25-0320, p. 5 (La.App. 4
Cir. 11/26/25), 424 So.3d 1210, 1214. “The purpose of certiorari review by the
district court of decisions of boards and quasi-judicial tribunals is to ‘determine
whether jurisdiction has been exceeded, or to decide if the evidence establishes a
legal and substantial basis for the Board’s decision.’” Esplanade Ridge Civic Ass’n,
13-1062, p. 3, 136 So.3d at 169 (quoting Elysian Fields, Inc. v. St. Martin, 600 So.2d
69, 72 (La. App. 4th Circ. 1992)).
When appellate courts review district court rulings on BZA decisions, the
“reviewing 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.” Greer, 25-0320, pp. 5-6, 424 So.3d at
1214 (quoting King, 97-1873, pp. 14-15, 719 So.2d at 418). Thus, on appellate
review, this Court “owe[s] no deference to the factual findings or legal conclusions
of the district court” and reviews the findings and decision of the BZA. Our Lady of
Lake Roman Catholic Church, Mandeville v. City of Mandeville, Planning and
Zoning Commission, 13-0837, p. 13 (La.App. 1 Cir. 2/3/14), 147 So.3d 186, 194
(citations omitted); see also Robinson v. City of New Orleans, 18-0032, p. 10 (La.
App. 4 Cir. 5/16/18), 247 So. 3d 791, 798). Questions of law in zoning matters are
reviewed under the de novo standard of review. 3000-3032 St. Claude Avenue, LLC
v. City of New Orleans, 22-0813, p. 8 (La.App. 4 Cir. 6/22/23), 368 So.3d 1160,
1168 (citation omitted).
6
VOTING PROCEDURE
Appellants assert that the district court erred as a matter of law in finding that
the BZA’s procedure used to vote on Encampment’s requested zoning variances a
second time was proper. They aver that a second vote taken by the BZA on a
requested zoning variance was improperly taken as a motion for reconsideration,
which is not included in the BZA’s Administrative Rules, Policies and Procedures.
Thus, Appellants argue that this Court must look to Robert’s Rules of Order
(sometimes hereinafter “RONR”) pursuant to the BZA’s own rules to review this
issue. In response, the Appellees argue that this argument is not properly before our
court as it is raised for the first time on appeal. We disagree in part with the
Appellants and in whole with the Appellees.
Initial Raising of the BZA’s Alleged Procedural Violation
As noted above, our jurisprudence requires this Court to limit its de novo
review to consideration of the BZA’s decision, not the district court’s. See Greer,
supra. Appellants, however, request this Court to review the district court’s
judgment. This request is improper. Instead, we interpret Appellants’ assignment of
error to mean that they seek review of the procedure the BZA utilized in granting
Encampment’s variance requests on a second and/or re-urged vote.
Moreover, we find the Appellees’ argument that Appellants did not object to
the amended or reconsidered motion at the BZA hearing by raising a timely point of
order under Robert’s Rules of Order or raise this issue before the lower court to be
unpersuasive. “Appellate courts generally find it inappropriate to consider an issue
raised for the first time on appeal that was not plead, urged, or addressed in the court
below.” Vieux Carre Prop. Owners, Residents & Assocs., Inc. v. City of New Orleans
Through Bd. of Zoning Adjustments, 21-0687, p. 6 (La.App. 4 Cir. 4/6/22), 337 So.3d
7
979, 983 (citation omitted). Here, our de novo review of the record reveals that
Appellants raised this procedural issue before the district court in their “First
Amended Memorandum in Support of Petition for Judicial Review” filed on October
24, 2024. This is further evidenced by the district court’s discussion of the
procedural issue in its Reasons for Judgment.4
Although the Appellants’ intent is to challenge the district court’s rationale in
finding the BZA did not procedurally err in its Reasons for Judgment, we review the
Appellants’ procedural objections to the BZA’s decision de novo, in the interests of
justice. See La. Code Civ. Proc. art. 2164.5
Initial Vote, Alternative Motion and Second Vote
As previously stated, Ms. Agins’ initial motion, seconded by Mr. Richards, to
grant both of Encampment’s variances with provisos, failed. Mr. Richards then
raised an alternative motion that Chairperson Forest granted. At that point, Mr.
Richards successfully moved to grant Encampment’s lot size variance subject to
three provisos and to deny the parking variance. Mr. Richards’s first motion was a
4 Generally, appellate courts review district court judgments, not reasons for judgment.
However, a district court’s reasons for judgment give insight into the district court’s rationale:
It is a “‘well-settled rule that the district court’s oral or written reasons for judgment
form no part of the judgment, and that appellate courts review
judgments, not reasons for judgment.’” Wooley v. Lucksinger, 2009-0571, p. 77
(La. 4/1/11), 61 So. 3d 507, 572 (quoting Bellard v. American Cent. Ins. Co., 2007-
1335, p. 25 (La. 4/18/08), 980 So. 2d 654, 671). However, a court of appeal may
review the trial court’s reasons for judgment to “gain insight” into the trial
court’s judgment. Id., 2009-0571, p. 78, 61 So. 3d at 572; See also Double NRJ
Trucking, Inc. v. Johnson, 2017-667, p. 7 (La. App. 5 Cir. 5/16/18), 247 So. 3d
1125, 1131.
Growe v. Johnson, 20-0143, p. 6, n.3 (La.App. 4 Cir. 2/17/21), 314 So.3d 87, 93.
5 Furthermore, our review the BZA hearing reveals that neither the Appellants, nor any members
of the public, were given an opportunity to object to Mr. Richards’ alternative motion and the
second vote that ensued, which proceeded summarily.
8
motion to reconsider. However, for the reasons that follow, the BZA procedurally
erred in granting his motion pursuant to Robert’s Rules of Order. Thus, the BZA
committed a legal error.
According to the BZA’s Administrative Rules, Policies & Procedures relative
to the “Conduct of Meetings,” Sections II (J) and III (G) of the Rules state that a
concurring vote of four (4) Board members is required to pass a variance or
application. The denial of a motion to grant a zoning variance constitutes a denial
of the variance. Old Carrollton Neighborhood Ass’n v. City of New Orleans ex rel.
Its Board of Zoning Adjustments, 03-0711, p. 10 (La.App. 4 Cir. 10/1/03), 859 So.2d
713, 719 (“When the motion to approve did not pass by at least four votes, it failed,
and that decision became the decision of the BZA.”).
Encampment’s variance requests were denied by the BZA’s initial vote prior
to Mr. Richards raising his alternative motion. Mr. Richard’s alternative motion
urged reconsideration of the failed motion to approve Encampment’s variances.
However, “[t]he BZA Administrative Rules, Policies and Procedures do not include
procedural rules for reconsideration; therefore, we must look to Robert’s Rules of
Order.” Wolfman, Inc. v. City of New Orleans, 03-0120, p. 5 (La.App. 4 Cir.
4/21/04), 874 So. 2d 261, 264; see also Old Carrollton Neighborhood Ass’n v. City
of New Orleans ex rel. Its Board of Zoning Adjustments, 03-0711, p. 9 (La.App. 4
Cir. 10/1/03), 859 So.2d 713, 718; BZA Administrative Rules, Policies &
Procedures, Section II(G)(1) and RONR (12th ed. 2020).
Section 37:1, et. seq., of Robert’s Rules of Order pertains to motions to
reconsider, which is defined as a motion that:
enables a majority in an assemby, within a limited time and without
notice, to bring back for further consideration a motion that has already
been voted on. The purpose of reconsidering a vote is to permit
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correction of hasty, ill-advised, or erroneous action, or to take into
account added information or a changed situtation that has developed
since the taking of the vote.
RONR (12th ed.) 37:1.
Section 37 further provides in pertinent part:
37:3
The motion to Reconsider can, in general, be applied to a vote that
either adopted or rejected a motion, and it proposed no specific change
in a decision but simply that the original question be reopened. It is
neither a main motion nor a secondary motion, but in certain respects it
assumes the character of the motion to which it is applied (that is, the
motion to be reconsidered), as will be seen below.
37:5
First, the mere making of a motion to Reconsider, when seconded by
another member and acknowledged by the chair, has the effect of
suspending, at least temporarily, any action growing out of the vote
proposed to be reconsidered. . .
37:6
Second, the motion to Reconsider is considered by the assembly—
either immediately after it is made or at some later time, depending on
the parliamentary situation (see 37:14-17). Although at this state the
motion to be reconsidered is not yet pending, debate on the motion to
Reconsider (if it is debatable; see 37:18) can go fully into the merits of
that question.
37:7
Third, if the motion to Reconsider is adopted, the effect is—to the extent
practicable, and with certain exceptions—to place before the assembly
again the question on which the vote has been reconsidered, in the exact
position it occupied the moment before it was voted on originally. The
original vote is thus canceled, and before, any new vote on it is taken,
the question is again open to debate, amendment, or any other action
appropriate in the case. If, however, the motion to Reconsider is
rejected, the vote which it proposed to reconsider, as well as any action
held up because of the proposed reconsideration, goes back into effect,
just as though the motion to Reconsider had never been made. The same
result occurs if the motion to Reconsider is dropped without having
been voted on at all. (See 37:11).
RONR (12th ed.) 37:3-7.
Furthermore, Section 37 states that “to provide both usefulness and protection
against abuse,” a motion to Reconsider can be made only by a member who voted
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on or with “the prevailing side” of the original vote. RONR (12th ed.) 37:8(a) and
37:10(a). “In other words, a reconsideration can be moved only by one who voted
aye [or “yea”] if the [original] motion involved was adopted, or no if the motion was
lost.” RONR (12th ed.) 37:10(a). However, this did not occur in the instant matter.
Mr. Richards seconded Ms. Agins’ motion that failed. He was not on the
prevailing side—the “nay” side—of the first vote. Accordingly, he did not
procedurally have the right to seek reconsideration of the failed motion pursuant to
the applicable parliamentary rules.6
By improperly allowing Mr. Richards to raise a motion to reconsider, granting
his motion and allowing a second vote on Encampment’s variances to proceed, the
BZA committed a legal error and deprived the public of having an opportunity for a
fair hearing under the applicable parliamentary rules. “Procedural gaffes” can affect
“substantive issues” by changing the outcome of zoning decisions. Old Carrollton
Neighborhood Ass’n, 03-0711, p. 11, 859 So. 2d at 719. Disregarding a valid vote is
a “due process violation of the neighbors in opposition to the variance and gives the
appearance that a certain result was desired by the Board.” Id., 03-0711, p. 10, 859
So.2d at 719. Here, the BZA’s failure to abide by the parliamentary rules it selected
may have given the public the mistaken impression that some members of the BZA
desired to grant Encampment’s zoning variances from the outset of the hearing,
under the unique facts presented.
6 We further note that pursuant to Robert’s Rules of Order, Mr. Richards’ motion to reconsider
was not seconded nor considered by the BZA as whole before being granted by Chairperson Forest
and proceeding to Mr. Richard’s motion on the merits, that is to say the substance of what he
sought to be reconsidered. This was also procedurally improper under RONR 37:5-6.
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While the BZA’s February 28, 2024 decision was presumed valid, our de novo
review of this matter reveals it was not. The initial February 19, 2024 BZA vote
remains in effect because Mr. Richards motion to reconsider was improperly
granted. When an improper motion to reconsider is made, the BZA’s initial vote on
a motion remains valid. Id., 03-0711, pp. 9-10, 859 So. 2d at 718-19 (holding that
the BZA’s vote on a motion to grant a church’s zoning variance constituted a denial
of the variance and therefore barred the BZA from rehearing same matter within one
year of denial).
This procedural issue is dispositive of this appeal. Therefore, the Appellant’s
second assignment of error is pretermitted because it is moot.
DECREE
For the foregoing reasons, the district court’s judgment is reversed, the BZA’s
February 29, 2024 decision is vacated, and this matter is remanded to the BZA to
issue a decision in accordance with its initial February 19, 2024 vote.
APRIL 30, 2025 JUDGMENT REVERSED;
FEBRUARY 28, 2024 DECISION VACATED
AND REMANDED
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