Williams v. Board of Zoning Adjustments
This text of 444 So. 2d 669 (Williams v. Board of Zoning Adjustments) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
On April 11, 1983 the Board of Zoning Adjustments (BZA) filed a decision concerning zoning variances requested by George Gomez (relator). On April 29th plaintiff filed suit in Civil District Court against relators seeking to overturn the BZA’s decision and to enjoin additional construction. On June 3, 1983 plaintiff filed a “Second Supplemental and Amending Petition” wherein he changed his suit to read “Application for Writ” and requested that certio-rari issue to the BZA. On July 5th the City of New Orleans and BZA filed an Exception of Prescription, and the other relators filed an Exception of Peremption. Both exceptions were heard on October 28th, denied on November 7th, and this writ was filed on November 29, 1983.
The City contends plaintiffs appeal to the district court was untimely because his original petition did not seek a writ of certiorari and the supplemental and amending petition, which did seek a writ, was filed after the statutory 30-day preemptive/prescriptive period. The City argues that, because of the exclusiveness of the statutory procedure for zoning appeals and the strict requirements for perfecting such appeals, plaintiff’s amended petition did not relate back to the date of filing his original petition. The City relies on Lege v. Vermilion Parish School Board, 360 So.2d 664 (La.App.3d Cir.1978).
We find Lege distinguishable because it involved a suit by taxpayers and electors attempting to challenge a bond election. The peremptive period for contesting an election is delineated in our La. Constitution 1 and the exclusive procedure for such challenges is specified by statute.2 Unlike an ordinary lawsuit, the procedure for contesting an election is an extraordinary measure, requiring the challenger to file a “motion for judgment” which must be published in a general newspaper within certain time periods, etc. The statute also contains special notice and service requirements. The plaintiffs in Lege filed a suit via ordinaria which failed to conform to any of the statutory specifications and plaintiffs’ supplemental petition, attempting to conform to the statutory provisions, was held untimely.
The procedure to review a BZA decision is not substantially different from the procedure for review of many other administrative rulings.3
[671]*671We agree with the trial court that plaintiffs original petition complies with R.S. 33:4727. The petition was filed within 30 days of the BZA decision; it was “duly verified” by the plaintiff and properly notarized; it set forth the alleged “grounds of the illegality”, i.e., the failure to provide proper notice and the incompatibility of the use with B-l zoning. The petition sought an injunction against additional construction on the premises and requested that the district court “overturn the variance granted by the BZA.”
The statute does not require that a petition for review of a BZA decision be captioned “Petition for Writ of Certiorari”, nor does the statute require that the petition specifically request such a writ. Rather, the statute provides that, “Upon the presentation of such petition, [i.e., the verified petition complaining of a board decision] the court may allow a writ of certio-rari directed to the Board of Adjustment to review the decision_” (our emphasis). Issuance of the writ is merely the vehicle by which the district court initiates review in response to a petition alleging error or illegality which may be meritorious. LSA-C.C.P. Art. 854 provides: “No technical pleadings are required.” The courts are directed to construe all pleadings to do substantial justice and, under Art. 862, “shall grant the relief to which the party ... is entitled, ... even if the party has not demanded such relief in his pleadings....”
The City attempts to classify plaintiffs original petition as a “collateral attack” on the BZA decision, as opposed to a request for appellate review. A collateral attack, however, is an attempt to defeat a judgment “in some incidental proceeding not provided by law for the express purpose of attacking it.” See Black’s Law Dictionary, citing May v. Casker, 188 Okl. 448, 110 P.2d 287, 289. A collateral attack is initiated in a separate lawsuit filed in a trial court, not in the appellate court. Here, the district court functions as the first court of appellate review. Plaintiffs original petition specifically sought reversal of the BZA’s decision. Thus, it was not a collateral attack, but rather a petition for appellate relief. The only difference between plaintiffs original petition and his supplemental and amending petition is that the latter changed the caption of the pleading to read, “Application for Writ” and requested the District Court to grant a writ and overturn the BZA decision for the reasons set forth in the original petition. Both the cause of action and the relief sought were properly set forth in the original petition.
We find no error in the denial of the City’s exception of prescription.
WRITS DENIED.
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444 So. 2d 669, 1984 La. App. LEXIS 10466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-board-of-zoning-adjustments-lactapp-1984.