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IN RE: ALVIN PIERRE FOR CALVIN LOVE  NO. 04-CA-635  
JEFFERSON PARISH BOARD OF ZONING  
ADJUSTMENTS NO. W-1105  FIFTH CIRCUIT  
COURT OF APPEAL  

STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 598-094, DIVISION "L"
HONORABLE CHARLES V. CUSIMANO, II, JUDGE PRESIDING

DECEMBER 14, 2004

WALTER J. ROTHSCHILD
JUDGE

Panel composed of Judges Edward A. Dufresne, Jr., Marion F. Edwards
And Walter J. Rothschild

CRYSTAL M. HEINE
200 Derbigny Street
Suite 527 New Courthouse Bldg.
Gretna, Louisiana 70053
COUNSEL FOR PLAINTIFF/APPELLANT
AFFIRMED.
The Parish of Jefferson appeals a judgment ofthe trial court affirming the decision of the Zoning Appeals Board ("ZAB"), which granted Calvin Love's request fLor a zeonin20variance For the reo gnhsluws ecphresleln iwe af .Pierre, filed
a notice of appeal to the ZAB, seeking a variance "to construct a carport in the required front yard set back creating insufficient front yard" at his residence located at 120 Morgan Court in Avondale, Louisiana. Mr. Love sought approval to build the carport leaving a front yard depth of approximately five (5) feet, which is a violation of Article VI, Section 40-94(a)(l) ofthe Jefferson Parish Comprehensive Zoning Ordinance, which requires a front yard to have a depth of not less than twenty (20) feet. In his application to the ZAB, Mr. Love states that he should be permitted to install a carport in the front of his house, because he has a "property hardship," in that his lot is odd-shaped and set deep inside a corner.
The matter came for hearing before the ZAB on July 28, 2003, at which time Mr. Love was granted a variance to build the carport in front of his house, with the stipulation that the carport can never be enclosed at any time in the future. In its reasons for judgment, the ZAB stated:
Since this is such an irregularly-shaped cul-de-sac lot in which the carport sits further back on one side of the lot than it does on the other side ofthe lot, Board
Members considered this a hardship case. And, with stipulations held, Board Members agreed it will conform to the area. Please note: There was no opposition." (Emphasis added.)
On August 25, 2003, Louis Savoye in his capacity as Director ofthe Jefferson Parish Department ofInspection and Code Enforcement (hereinafter "Jefferson Parish") filed a Petition and Order for Appeal in the 24* Judicial District Court arguing that the ZAB "exceeded its authority and acted ultra vires in finding a hardship and granting said variance." The matter came for hearing before the district court on September 29, 2003. At this hearing, the district court upheld the ZAB's decision to grant a variance to Mr. Love, noting that Mr. Love relied on the ZAB's decision and already built the carport in accordance with the variance.
It is from this judgment ofthe district court that Jefferson Parish appeals. DISCUSSION
The power to impose zoning restrictions is granted by LSA-R.S. 33:1236 and 33:4721. Guenther v. Zoning Appeals Board, Parish of Jefferson, 542 So. 2d 612, 613 (La. App. 5 Cir. 4/12/89), writ denied, 544 So. 2d 407 (La. 6/2/89). LSA-
R.S. 33:4727 empowers the local governing body to appoint a board of adjustment, which can hear appeals by any person, officer, department, board, or bureau of a municipality. Id. The decisions ofthe board are appealable to the district court.
Under the Jefferson Parish Comprehensive Zoning Ordinance ("CZO"), Section XXII 3.B, the ZAB has the power to grant variances in yard requirements ifthe following circumstances, set forth herein in summary form, are met:
1) Surrounding property values will not be negatively affected; and 2) The variances will positively affect neighborhood prosperity and welfare; and 3) The variance will not impair light and air, increase traffic congestion or parking problems, overburden fire protection or sewerage and water
services, or produce other nuisances such as odors, dust, fumes, noise or glare; and either 4) Circumstances special to the property create a demonstrable hardship for the property owner; or
5) The property owner would be deprived of rights enjoyed by neighboring property owners were the variance not granted, but would not thereby simply be granted special privileges, nor would the variance be merely for the owner's convenience or profit. (Emphasis added.)
Cerminaro v. Jefferson Parish Zoning Appeals Board, 02-1041 (La. App. 5 Cir. 2/11/03), 838 So. 2d 193, 196: Guarisco v. Jefferson Parish Zoning Appeals Board, 04-148 (La. App. 5 Cir. 6/29/04), 877 So. 2d 1094, 1097. Prescott v. Parish of Jefferson, 96-1058 (La. App. 5 Cir. 4/9/97), 694 So. 2d 468, 471. In order to grant an application for a variance, the ZAB must find all ofthe first three requirements and either the fourth or fifth requirement. Cerminaro v. Jefferson Parish Zoning Appeals Board, supra.
In the instant case, Jefferson Parish argues that the ZAB improperly granted a zoning variance to Mr. Love, because the necessary requirements were not satisfied. Jefferson Parish further contends that Mr. Love's desire to construct a carport is for convenience purposes only, and it asserts that the ZAB's reasons for judgment do not specify why the ZAB found this to be a hardship case. Further, Jefferson Parish asserts that: 1) allowing structures within five (5) feet ofthe property line does not advance the prosperity and general welfare of a neighborhood, and in fact, such structures are detrimental to public welfare because they reduce the supply of air and light and create hazards, such as the spreading of fires; 2) there are no special circumstances surrounding the lot at issue, and a forty (40) foot front is not a hardship; and 3) denying the variance would not deprive Mr. Love ofrights commonly erijoyed by other properties in Jefferson Parish.
There is a prima facie presumption of validity that attaches to the acts of a

duly constituted administrative board, such as the ZAB. Prescott v. Parish of Jefferson, supra at 470. The standard ofjudicial review applied to actions of the board in zoning matters is "abuse of discretion, unreasonable exercise of the police powers, an excessive use of the power herein granted, or the denial of the right of due process." LSA-R.S. 33:4721; Barreca v. Parish of Jefferson, 95-14 (La. App. 5 Cir. 4/25/95), 655 So. 2d 403, 404. A person who opposes a zoning board's decision bears the burden of proving that the decision was arbitrary, capricious, an abuse of discretion, or palpably unreasonable. Ostarly v. Zoning Appeals Board, Parish of Jefferson, 02-55 (La. App. 5 Cir. 10/29/02), 830 So. 2d 542, 545, writ denied, 02-3112 (La. 2/21/03), 837 So. 2d 632; Parish of Jefferson v. Davis, 97

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