Must a Louisiana city check subdivision restrictions before approving a zoning variance?

Plain-English summary

The city attorney asked whether land-use officials had to address subdivision building restrictions before considering a zoning variance or change in classification. In 2006, the Attorney General said they had no such legal requirement. A zoning approval, however, did not terminate or supersede existing private building restrictions.

For that reason, the AG advised the land-use commission to review applicable subdivision restrictions even though it was not required to do so. A zoning decision that overlooked them could confuse applicants and invite litigation because the private restrictions would still stand. The opinion also noted that restrictions might be abandoned when owners failed to enforce violations by injunction within the period discussed in the Civil Code comment.

Currency note

This opinion was issued in 2006 about Louisiana zoning and building restrictions. Verify current municipal and property law before relying on it for a variance or subdivision dispute.

What this means for you

City councils and land-use commissions

The AG said a private subdivision restriction did not have to be resolved before a zoning variance or reclassification. It nevertheless advised reviewing applicable restrictions because municipal approval would not erase them.

Property owners and zoning applicants

A variance or zoning change would not by itself free property from a subdivision's building restrictions under the opinion. The AG treated those restrictions as legally distinct from zoning ordinances.

Common questions

Must the commission decide whether a covenant allows the project before granting a variance?

The AG said no requirement compelled the commission or city council to consider subdivision restrictions in granting a variance or zoning change.

Does a granted variance override a subdivision restriction?

No. The opinion said zoning ordinances neither terminate nor supersede existing building restrictions.

Why did the AG recommend reviewing restrictions anyway?

Because the zoning approval would leave them in place, the AG said review could prevent confusion or needless litigation.

Background and statutory framework

The opinion described subdivision building restrictions as property rights regulated by Louisiana Civil Code Articles 775 through 783. It cited La. C.C. Article 782's comments and Louisiana decisions for the separation between public zoning and private restrictions. It gave a practical recommendation while declining to impose a legal prerequisite on the city.

Citations

• La. C.C. Article 782 (building-restriction comments cited by the opinion).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0184

Original opinion text

May 16, 2006
OPINION NO. 05-0184

174-ZONING

La. C.C. Articles 775 through 783

Skipper M. Drost
In summary, there is no requirement that the Land
Use Commission nor the City Council consider the
City Attorney
building restrictions of a subdivision when granting a
City of Sulpher
variance or a change in classification, however, since
P.O. Box 1309
granting a variance or a change will not supersede the
subdivision restrictions and could cause confusion
Sulpher, LA 70664-1309
and/or needless litigation, it would be advisable for
the Commission to review any applicable subdivision restrictions.
Dear Mr. Drost:

You have requested an opinion of this office as to “whether or not the Land Use Commission and the City Council should consider a request for a variance and/or change in zoning classification without addressing the issue of any applicable subdivision restrictions”.

We will begin with a brief examination of restrictions as set forth by Yiannopoulos, Civil Law Property § 229 at 453 where he states:

. . . building restrictions should be classified as sui generis real rights akin to predial servitudes. This view has been adopted in the 1977 [Civil Code] revision. Accordingly, building restrictions are regulated by Articles 775 through 783 of the Civil Code as well as “by applications of the rules governing servitudes to the extent that their application is compatible with the nature of the holding restrictions.

The law in Louisiana is well settled that “[z]oning ordinances neither terminate nor supersede existing building restrictions”. La. C.C. Article 782 comment (c); Alfortish v. Wagner, 7 So.2d 708 (1942); Olivier v. Berggren, 136 So.2d (La. App. 4th Cir. 1962); Ransome v. Police Jury of Parish of Jefferson, 45 So.2d 601 (1950). However, it should be noted that either the individual restrictions or the whole plan may be abandoned should the subdivision owners fail to enforce the restrictions by injunctive action within two years from the onset of the violation. La. C.C. Article 782, comment (d).

Page 2

OPINION NO. 05-0184
Mr. Skipper M. Drost
City Attorney
City of Sulpher
Page No. 2

In summary, there is no requirement that the Land Use Commission nor the City Council consider the building restrictions of a subdivision when granting a variance or a change in classification, however, since granting a variance or a change will not supersede the subdivision restrictions and could cause confusion and/or needless litigation, it would be advisable for the Commission to review any applicable subdivision restrictions.

Very truly yours,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

BY:
Charles F. Perry
Assistant Attorney General

CCF,Jr./CFP/tp

Page 3

OPINION NO. 05-0184
Mr. Skipper M. Drost
City Attorney
City of Sulpher
Page No. 2
OPINION 05-0184

174- ZONING

La. Civil Code Articles 775 through 783

There is no requirement that the Land Use Commission nor the City Council consider the building restrictions of a subdivision when granting a variance or a change in classification, however, since granting a variance or a change will not supersede the subdivision restrictions and could cause confusion and/or needless litigation, it would be advisable for the Commission to review any applicable subdivision restrictions.

DATE REQUESTED: 4/11/2005

DATE RELEASED: May 16, 2006

REQUESTED BY: Skipper M. Drost
City Attorney
City of Sulpher
P.O. Box 1309
Sulpher, LA 70664-1309

AUTHOR: Charles F. Perry
Assistant Attorney General
Civil Division/Lands & Natural Resources Section