Audubon Riverside Neighborhood Association

BZA and Safety & Permits Policy: Background & Framing of Issues

What is the Board of Zoning Adjustments?

Who sits on the BZA?
The Board of Zoning Adjustments (BZA) is a seven-member volunteer board appointed by the Mayor of New Orleans in two or four-year staggered terms. It functions as an adjunct of the City Planning Commission (See http://www.new-orleans.la.us/cnoweb/cpc/index.shtm ).

What does the BZA do?
When a property owner attempts certain construction or renovation the property owner must seek permits from the Department of Safety and Permits. If a property owner is informed by the Department of Safety and Permits through a letter of denial that an aspect of a proposed construction or renovation violates the Comprehensive Zoning Ordinance (see http://ordlink.com/codes/neworleans/index.htm ), the property owner may seek a waiver of the requirement to conform with the Comprehensive Zoning Ordinance from the BZA. A request for a waiver will only be heard by the BZA if the City Planning Commission concludes that the proposed construction or renovation does not require rezoning and meets the subdivision requirements of the Office of Property Records. In some instances an applicant will seek a waiver from the BZA because the Department of Safety and Permits has found an ongoing construction or renovation to violate the Comprehensive Zoning Ordinance and issued a Stop Work Order.

The applicant may request waivers:
1) To permit any yard, lot width or frontage less than … required;
2) To reduce the requirement for lot area per family;
3) To allow a Floor Area Ratio greater than that permitted;
4) To reduce off-street parking or loading requirements;
5) To reduce the requirements for space between buildings;
6) To allow a smaller Open Space Ratio than is required for the use;
(see http://ordlink.com/codes/neworleans/_DATA/Article_14/6.html )
Or to reduce height and yard space requirements.
(see http://ordlink.com/codes/neworleans/_DATA/Article_14/7.4.html )
(see http://ordlink.com/codes/neworleans/_DATA/Article_14/7.5.html )

The majority of the BZA waiver requests are for:
1) setbacks - distance the building must have between lot lines (the property edges). Request for setbacks for usually necessary for additions into the side and backyards.
2) front yard parking - the first 20 feet of a front yard is prohibited for parking
3) required parking for commercial sites
4) accessory structures, such as garages, sheds, decks, which consume more than 40 percent of the rear yard

What is the application and public notification process?
The application fees for a request for a waiver before the BZA is $75 for residential construction renovation, $100 for commercial construction renovation, and $200 to appeal decision of Safety & Permits or the City Planning Commission. Ten copies of a survey, site plan, Sandborn Map, plot plan and color photographs are submitted to the BZA by the Friday generally three weeks to a month before the next BZA hearing. Letters are issued to the property owners on the two street faces and the adjoining property owners to the rear. The applications are processed, accepted and advertised twice in the City Council chambers the second Monday of each month before the public hearing. The agenda which describes the request is distributed approximately 10 days before the public hearing. BZA hearing notices can be found at http://www.new-orleans.la.us/cnoweb/cpc/bza_notice.htm The BZA docket may be reviewed by formal request in person at the City Planning Commission on the Ninth Floor of City Hall. Copies of the file regarding the application may be requested for a fee of $1.00 per page. The BZA staff will produce examples of similar waivers granted or denied in the immediate area. The BZA staff will sometimes request the overview of a senior planner from the staff of the City Planning Commission to offer proviso suggestions to better accommodate the waiver.

Can the process be interrupted?
The applicant may verbally request a deferral by contacting the BZA staff. The item will be scheduled for a later BZA hearing. Generally no more than three deferrals will be granted. The agenda will reflect a deferral request if the request was timely. A withdrawal may be requested but to reapply the applicant must pay another fee.

How are the public hearings conducted?
The BZA meets the second Monday of every month. The BZA Board reviews as many as 39 docket items per agenda. Anyone may correspond to the BZA by noon on the Thursday before the public hearing. The applicant may provide supplemental information for the application but may not adjust the request. The BZA will generally proceed without the presence of the applicant. The applicant presents the request for 5 minutes. Supporters of the request may speak for three minutes each. Opponents of the request may speak for three minutes each. Others made request information for three minutes each. The applicant may rebut for three minutes. The members of the BZA may ask questions and then proceed towards a motion. The BZA may choose to defer for further clarification, to allow meeting between the applicant and those in opposition, or to review the application further. The BZA may approve the request as applied for, or ask for provisos to modify the permit with regard to other city departments in conjunction with Safety & Permits. The BZA may deny an application if the applicant has not met the hardship criteria and has proceeded without permit after the fact. The applicant may not reapply until year later. The BZA may deny the request without prejudice because only some of the hardship criteria have been met. Then an applicant may reapply within a year with a substantially new and different application. Decisions of the BZA are final, but can be appealed in the Civil District Court, and do not proceed to the City Council.

What is the standard of review?
The BZA members primarily consider whether the applicant meets the criteria of hardship. According to City Ordinance:

The Board of Zoning Adjustments shall not authorize a variance from the requirements of this Ordinance unless it shall make findings based upon the evidence presented to it that each special case shall indicate all of the following:

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 confer 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 property 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.

I have placed the Louisiana statute governing boards of zoning adjustments on the web site under the title “BZA Statute.” The detailed policies and procedures of the BZA can be found at http://www.new-orleans.la.us/cnoweb/cpc/Article%2013%20DRAFT.pdf

How is the jurisdiction of the Board of Zoning Adjustments different from the jurisdiction of the New Orleans City Council?

The BZA addresses waivers of specific zoning violations of a property that is already a conforming use. Non-conforming uses must be approved by the City Council, which under the tradition of council persons not voting contrary to the Councilperson in whose district the property resides, in the case of Audubon Riverside, Councilman Jay Batt. Thus, the City Council addresses variances from what type of use: residential, business, industrial; whereas the BZA addresses technical violations of an approved use, such as parking and space requirements.

What is the Department of Safety & Permits?

The Department of Safety & Permits grants building permits and cites property owners for zoning violations. Information about the Department of Safety & Permits can be found at http://www.new-orleans.la.us/home/departmentsAndAgencies/safetyandpermits/

What is current Audubon Riverside policy?

To respond to zoning issues the Audubon Riverside Planning and Zoning Committee developed the Review Panel process. The Review Panel process is detailed on the web site under the heading “Planning & Zoning Committee, Review Hearing Subcommittee”. The Review Panel process was designed to respond to issues which would be voted upon by the City Council which usually requires months thus granting enough time for a request for review, a comment period, a public meeting, a meeting of the Review Panel in executive session, the drafting of a report of the Review Panel, and a vote of the Board of Directors of Audubon Riverside. The Review Panel process was followed regarding the Wendy’s/gas station project on Tchoupitoulas Street. The Report of the Review Panel can be found on the web site under the heading “Planning & Zoning Committee, Review Hearing Subcommittee”.

Towards allowing an expedited process regarding matters before the BZA in certain limited circumstances Board Director and then Chairman of the P&Z Review Subcommittee offered the following motion at the meeting of the Board of Directors on May 20, 2003.

Motion:
To authorize the Planning & Zoning Committee to oppose any request for a waiver of a zoning ordinance to be heard before the Board of Zoning Adjustments if the property involved resides in the boundaries of the Association, and either:
a) the waiver requests a waiver of the required number of parking spaces available;
b) the waiver regards a conversion of residential use to commercial use;
provided that the applicant for the waiver has not requested special consideration by the Association. If the applicant has requested special consideration by the Association the Planning & Zoning Committee may only request a deferral of consideration by the Board of Zoning Adjustments until the next regularly scheduled meeting of the Board of Zoning Adjustments. Before opposing a waiver, or requesting deferral of a waiver, the Planning & Zoning Committee shall inform by electronic mail the President of the Association of its intention to oppose or request deferral of such a waiver before a hearing of the Board of Zoning Adjustments at least 7 days before the hearing. The President of the Association shall inform the Board of Directors of the Association by electronic mail of the intention of the Planning & Zoning Committee to oppose or request deferral of such a waiver before a hearing of the Board of Zoning Adjustments. Any Board member may request an electronic vote to revoke the authority of the Planning & Zoning Committee to oppose or request deferral of a specific waiver before the next hearing of the Board of Zoning Adjustments.

During discussion of the motion several Board members expressed reticence at authorizing any unilateral action by the P&Z Committee until a more comprehensive policy regarding the jurisdiction, policies and procedures of P&Z addressing Safety & Permits and the Board of Zoning Adjustments was developed. Director Stephen Gele therefore withdrew his motion. This attempt to define a BZA and Safety & Permits policy therefore follows.

After the May Board Meeting a Review Panel was held regarding a residential conversion to a commercial bakery on Magazine Street. The Report of the Review Panel can be found on the web site under the heading “Planning & Zoning Committee, Review Hearing Subcommittee”. Please note that the Report of the Review Panel was adopted by the Board of Directors and the resultant appeal to the BZA succeeded.

Questions to be considered re: a BZA / Safety & Permits Policy

Jurisdiction

What items before the BZA should Audubon Riverside address?

Should jurisdiction be determined by substance, i.e., the type of item, and/or procedure, i.e., whether anyone has stated objection or support for the item?

Should P&Z be empowered to address items on the agenda of the BZA without complaint or support by a neighbor? by a member? by the Board of Directors?

Should neighbors who receive notices from the BZA per City ordinance also receive a notice (letter or postcard) from Audubon Riverside stating that Audubon Riverside P&Z will answer any questions they may have and consider assisting them in any opposition or support for the variance? Should the applicant receive a notice (letter or postcard) from Audubon Riverside stating that Audubon Riverside P&Z would consider assisting them in obtaining the variance?

Should a potential applicant be allowed to initiate P&Z inquiry before actually filing an application with the BZA to determine likely neighborhood support or opposition before having to file with the BZA and pay the filing fee?

Should P&Z be empowered to address certain BZA agenda items, but not others, without complaint by a neighbor? by a member? by the Board of Directors?

Should commercial developments requesting variances be treated differently from residential developments requesting variances? Would such disparate treatment be viewed as discriminating against commercial developments and therefore anti-business? Could such disparate treatment be justified because commercial developments would be more likely to cause greater negative impacts, such as traffic, parking, sewerage, noise? Could a test or standard or review be established which would not explicitly and/or necessarily discriminate between commercial and residential development, but based on type or severity of impact tend to more likely involve commercial rather than residential development?

Should a distinction be made between waivers regarding:
a) items more visible, i.e., items visible from the street? items regarding street or street front violations as opposed to internal building or rear violations? paving of front lawns?
b) items regarding parking? parking waivers? curb cuts? throughout the entire neighborhood or just near commercial developments? for all commercial developments or just commercial developments with night time hours?
b) waivers related to a residential to commercial conversion?
c) waivers made after the violation has occurred and been cited by Safety & Permits?
Should such categories of waivers qualify for P&Z to presumptively request deferral and/or state opposition? Should such categories of waivers receive a higher standard of review?

Should the Board of Directors be notified before any P&Z inquiry? By e-mail?

How should P&Z address an item before the BZA?

Should the whole P&Z Committee meet and vote on any course of action? Should P&Z be allowed to empower a designated chairman or subcommittee or subcommittee chairman to initiate a course of action? If so empowered should the designated chairman or subcommittee or subcommittee chairman notify the whole P&Z committee in sufficient time to reverse the announced course of action by P&Z? By e-mail?

Should a Review Panel be created and follow the procedures already adopted by Audubon Riverside for Review Panels?

Should P&Z only be empowered to request a deferral so a Review Panel can be convened? Can a streamlined Review Panel process be developed for minor or localized issues? Should such a review panel still include: notification and opportunity for the applicant to plead his case; opportunity for those in support or opposed to plead their case; a report to the Board of Directors?

What should be standard of review? Should the Review Panel follow the standard for hardship contained in the BZA ordinance? Should the Review Panel require a greater standard to recommend opposition, such as general opposition by the immediate neighbors or a danger to public safety? Should an “after the fact” application be presumed to be in bad faith? Should a property owner be able to reverse such a presumption by evidencing that an architect or contractor wrongfully acted without the applicant’s knowledge of the violation?

What role should the Board of Directors play in any position taken by Audubon Riverside before the BZA?

Should P&Z be empowered to address certain BZA agenda items without vote of the Board of Directors? Should the Board of Directors be notified in sufficient time to reverse the announced course of action by P&Z? Should P&Z be limited to requesting a deferral without Board approval?

Safety & Permits

Should P&Z inquire as to, or report and/or complain of possible zoning violations which pre-exist the founding of Audubon Riverside? If a clear and present danger was newly discovered?

Should P&Z inquire as to, report and/or complain of possible zoning violations other than those that P&Z would be empowered to address if on the docket of the Board of Zoning Adjustments? Should the same substantive and procedural considerations apply? Should more limited substantive items be considered? Only items affecting the general public? Should individual property owners be left to inquire as to, report and/or complain of possible zoning violations affecting primarily only their property?

Should P&Z inquire as to, report and/or complain of possible zoning violations without complaint by the immediate neighbors affected? Would those neighbors required to be notified by City ordinance qualify as immediate neighbors deemed to be affected by Audubon Riversid?

Should P&Z respond to inquiries from property owners regarding possible zoning violations? Provide information as to whether the condition may be violative? mediate such disputes between neighbors?

Would there ever be a need for P&Z to inquire as to, or report and/or complain of possible zoning violations with such speed so as to not allow sufficient time for: a vote of the Board of Directors at a regularly scheduled meeting? a vote of the Board of Directors by e-mail? a Review Panel?

Should P&Z through the newsletter and web site inform the general membership and neighbors of common zoning violations to prevent members and neighbors from unknowingly violating zoning ordinances or employing architects and/or contractors who violate zoning ordinances?

Should P&Z offer to review proposed plans for construction and/or renovation to inform members of potential zoning violations?

Email us
sgele@ungarino-eckert.com

Links relevant to a BZA / Safety & Permits Policy

City Planning Commission
Comprehensive Zoning Ordinance
Board of Zoning Adjustments Ordinance
Department of Safety & Permits