author: MADELEINE M. LANDRIEU, Judge.

text:
    STATE of Louisiana in the Interest of S.R.
    No. 2013-CA-1072.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 12, 2014.

      Thomas H. Gernhauser, Chalmette, LA, for Plaintiff/Appellant.
    Sherry Watters, State of Louisiana Department of Children and Family Services, New Orleans, LA, Mary Ann McGrath Swaim, Southeast Louisiana Legal Services, New Orleans, LA, for Defendant/Ap-pellee.
    Court composed of Chief Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU.
   MADELEINE M. LANDRIEU, Judge.

| iThe Juvenile Court granted a Petition to Terminate Parental Rights as to the mother of a minor child, S.R., and denied a motion for a new trial brought by the mother. The mother now files this appeal. For the reasons that follow, we affirm the judgment of the trial court.

PROCEDURAL HISTORY

In April of 2012, the Department of Children and Family Services (DCFS) received a report that two adults were attempting to enroll a four year-old child in school but were unable to do so because neither had legal custody of her. After a preliminary investigation, DCFS learned that the two adults were the child’s eighteen-year-old sister, K.N., and a non-relative caretaker, Ms. Teri Conrad. DCFS further learned that the child, S.R., had been living with Ms. Conrad and her husband, Mr. Jeff Conrad, since she was an infant and that that child’s mother had moved to Oklahoma sometime in 2011. DCFS also learned that the child’s legal father was not involved in the daily care and supervision of her. Finally, DCFS learned that K.N., S.R.’s big sister, had been living on her own in New Orleans in an apartment since she was sixteen years old, well before their mother had moved to Oklahoma.

| ¡¿Following this preliminary investigation, DCFS requested and was granted emergency custody of S.R. and allowed her to remain in the physical care and custody of Mr. and Mrs. Conrad. A hearing on continued custody was held on June 14, 2012 at which time the court found that it was in S.R.’s best interest to remain in the legal custody of DCFS and in the physical custody of the Conrads. At that time, the court found that placement with the Con-rads was safe, was the least restrictive option and was in the child’s best interest.

In July of 2012, DCFS filed a petition to have S.R. declared a “child in need of care.” In January of 2013, after a hearing pursuant to Louisiana Children’s Code articles 659-667 and 678-686, and pursuant to the stipulation of the parties, the petition was granted, and the court ordered that S.R. remain in the legal custody of DCFS in accordance with a case plan dated December 26, 2012.

According to the case plan, reunification of S.R. with her parents was not an appropriate goal because of their non-compliance with services outlined in the case plan and their abandonment of S.R. Further, it was established that S.R.’s legal father was not her biological father and had no desire to care for her. Finally, the case plan established adoption as the goal for S.R.

On January 18, 2013, DCFS petitioned the court to terminate the parental rights of each of S.R.’s parents and to certify S.R. as free and eligible for adoption. DCFS’s petition was based on the facts that S.R.’s legal father had executed a voluntary act of surrender and that S.R.’s mother, K.R.N., had abandoned her. See, La. Ch. C. art. 1015(4). In its petition for termination of parental rights, DCFS alleged that it had first become involved with this family in 2008 at the time of S.R.’s birth because she was born with drugs in her system. DCFS asserted that at that time, the child had been placed voluntarily in the care of the Conrads by her | ¡.mother, who had later moved out of town to Oklahoma. DCFS further alleged that the mother, K.R.N., had failed to provide food, clothing and other necessities for the child; that she had failed to maintain regular contact with the child; and that other than participating in the first family team conference, K.R.N. had missed all court hearings in connection with the child in need of care proceedings. Specifically, DCFS alleged that K.R.N. had permanently avoided parental responsibility by failing to provide significant or substantial contributions to the child’s care and support for “six consecutive months, beginning on June 8, 2012.”

After a trial on the merits held on May 9, 2013, the trial court granted the petition for termination and certified S.R. as free and eligible for adoption. It is from this judgment that K.R.N. appeals.

FACTS

S.R. was born on October 4, 2008 to K.R.N. Although K.R.N. was married to F.R. at the time of the birth, F.R. is not the biological father of S.R. Soon after S.R.’s birth, K.R.N. began leaving her with family friends, Teri and Jeff Conrad, for long periods of time. It is apparent from the record that K.R.N. has never had physical custody of S.R. for any length of time, and that S.R. has lived the vast majority of her young life in the care of the Conrads. K.R.N. described the Con-rads as friends who would care for her daughter “like family.” While there was some evidence to indicate that S.R. was left with the Conrads when she was only days old, Ms. Conrad testified that S.R. had been with her consistently since 142009, when she was approximately one year old. K.R.N. did not dispute this testimony.

In May, 2011, K.R.N. moved to Oklahoma because she knew a man there, B.N., who had formerly lived in St. Bernard Parish. Before leaving, K.R.N. put her belongings in storage; left her then sixteen-year-old daughter, K.N., on her own in an apartment; left her four-year-old daughter in the care of her then ex-husband, F.R.; and left S.R., who was then two and a half years old, in the physical custody of the Conrads. K.R.N. testified that she had to move to get away from F.R., but that she originally planned to be in Oklahoma for only one week. She said she did not take her children with her because the Conrads were planning a trip to a water park, and she did not want her daughters to be deprived of this summer fun simply because she needed to leave “to get away from him (F.R.) and establish a family in a better area away from all that for my children.” K.R.N. did not articulate any specific reasons why she had to get away from F.R., only responding: “Harassment. I had a lot of problems with him.” She also testified that it was her intention to establish a new life in Oklahoma with B.N., whom she married approximately one year after moving to Oklahoma.

K.R.N. testified that, in the summer of 2011, she returned to St. Bernard Parish to get S.R. but could not do so because the Conrads had taken the child to F.R.’s house. K.R.N. returned to Oklahoma without seeing S.R. or either of her other two daughters.

In April 2012, when K.R.N. married B.N., none of her children attended the wedding. B.N. has never met S.R. or either of KR.N.’s other children, and he did |snot accompany K.R.N. to any of the court hearings in this matter. K.R.N. testified that it was never her intention to abandon her child, and that she had a room waiting for S.R. in her home in Oklahoma.

Tiffany Nelson is the foster care worker who was assigned to this case when the State took custody of S.R. Ms. Nelson testified that she did not initially have contact information for K.R.N., but that K.R.N.’s eldest daughter, K.N., contacted her mother and told her mother to call DCFS. Ms. Nelson received a telephone call from K.R.N. on June 25, 2012, at which time Ms. Nelson explained the proceedings, confirmed K.R.N.’s contact information, and informed her of the upcoming family team conference. Ms. Nelson then sent K.R.N. a letter that confirmed their conversation and provided the details of the family team conference. On July 6, 2012, K.R.N. participated in the family team conference by telephone. During the conference, K.R.N. was made aware of her obligations to visit with, maintain contact with, and provide child support to S.R. K.R.N. assured Ms. Nelson that she would visit S.R.

Ms. Nelson further testified that several letters were sent to K.R.N. while S.R. was in foster care. However, Ms. Nelson did not meet K.R.N. until April of 2013 when K.R.N. came to visit S.R., which was nine months after K.R.N. had been informed that her child was in foster care and after the State had filed its petition to terminate KR.N.’s parental rights. K.R.N. did not appear at the “child in need of care” adjudication hearing or at the disposition hearing.

At the trial, K.R.N. produced receipts for two $50 money orders, dated September 21 and October 9, 2012, which she claimed she had sent to Mrs. Conrad for S.R. Mrs. Conrad acknowledged having received one of these money orders | flsometime in October near the time of S.R.’s birthday. She did not recall having received the other. The money orders in evidence do not indicate a payee. K.R.N. also produced telephone records from August and September of 2012, which indicate that she called the Conrads’ home on a few occasions. Mrs. Conrad testified that she and K.R.N. were friends and frequently talked on the phone. When she and K.R.N. would speak, K.R.N. would also speak to S.R. While she had no documentary proof, K.R.N. testified that she had sent additional money, gifts and clothes to S.R. over the years.

Testimony at trial established that S.R. is attached to Mr. and Mrs. Conrad. Ms. Nelson testified that she visited S.R. in the Conrads’ home approximately thirteen times during the year she was assigned to the case — on both announced and unannounced visits. She also observed S.R. with the Conrads on visits to the DCFS office. On each occasion, Ms. Nelson found S.R. to be well cared for by the Conrads and emotionally connected to them. Ms. Nelson testified that she had never seen S.R. exhibit any behavior that indicated S.R. was “yearning to be with her mother.”

Finally, testimony at trial established that K.N., the eighteen-year-old sister of S.R., had seen her mother only once, during a visit K.N. made to Oklahoma for Christmas of 2012, since the time her mother had moved there. Although K.R.N. had come to Louisiana in August of 2011, she had not visited or contacted K.N. at that time. K.N. further testified that she and her two sisters had not been together since their mother had moved.

At the conclusion of the trial, the court found that that State had proved by clear and convincing evidence that K.R.N. had “permanently avoided her parental responsibility by failing to significantly contribute to the child,” and further | ^concluded that “terminating parental rights [of K.R.N.] would be in the best interest of the child for permanency and stability.”

ISSUES

K.R.N. raises several assignments of error, which we consolidate for purposes of discussion:

1. Whether K.R.N. received proper notice of the proceedings;
2. Whether the trial court erred by admitting prejudicial, irrelevant hearsay testimony;
3. Whether the trial court erred in finding that the State proved, by clear and convincing evidence, that K.R.N. had legally abandoned S.R.;
4. Whether the trial court erred in finding that the State proved, by clear and convincing evidence, that termination was in the best interest of the child.

DISCUSSION

Notice

The first assignment of error raises the issue of proper notice. K.R.N. contends that she was initially treated by DCFS and the trial court as a missing parent whose whereabouts were unknown even though she and the Conrads were in regular contact with each other. She further alleges that notices sent to her by DCFS and the court were addressed incorrectly and therefore were not received by her. These allegations are without merit.

It is true that DCFS initially considered K.R.N. to be an absent parent whose whereabouts were unknown. During its initial investigation, KR.N.’s eighteen-year-old daughter, K.N., was unwilling to provide DCFS with her mother’s contact information. However, K.R.N. did agree to contact her mother and ask her to 1 scontact DCFS. K.R.N. made contact with DCFS on June 25, 2012 and participated in the first family team conference. During this conference, K.R.N. was informed of her obligations and responsibilities relative to the case plan.

At trial, K.R.N. attempted to establish that she had not received letters and notices sent to her by DCFS because they were incorrectly addressed. The court found otherwise. The first letter sent to K.R.N. by certified mail was claimed by KR.N.’s husband; all others were sent by both regular and certified mail. The letters sent by regular mail were not returned. Those sent by certified mail were returned as “unclaimed.” There is no competent evidence to suggest that K.R.N. was not properly notified of these proceedings. This assignment of error is without merit.

Hearsay

The second assignment of error addresses alleged hearsay that was admitted into evidence. K.R.N. argues that the testimony on this point was not only hearsay, but irrelevant and unduly prejudicial to K.R.N.

At issue is testimony elicited from the DCFS case worker, Ms. Nelson, regarding a conversation she had with S.R. during one of her visits to the Conrads’ home. According to the testimony, S.R. told Ms. Nelson, without being prompted, that K.R.N. was “mean,” and that K.R.N. had called her (S.R.) a racially derogatory name. Over the objection of counsel, the trial court allowed Ms. Nelson to testify about this conversation. The trial judge reasoned that while it was not relevant to the issue of abandonment, it was relevant to his decision as to the child’s best interest. Ms. Nelson testified that the child was hurt by the term. In her testimony, K.R.N. stated that this was the way she and her daughter “played.”

l9The Louisiana Code of Evidence defines “hearsay” as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La. C.E. art. 801(C). Ms. Nelson’s testimony regarding what S.R. related to her is not hearsay because it was not offered to prove the truth of the matter asserted. The testimony was not offered to prove that K.R.N. called her daughter a particular derogatory name, but to show how KR.N.’s behavior had negatively affected her daughter. K.R.N. testified and did not deny making the statement, but instead explained that she was “playing” with S.R. Ms. Nelson, however, testified that S.R. was hurt by her mother’s statement. The fact that K.R.N. hurt S.R., whether intentionally or not, was relevant to the trial court’s consideration of whether termination of KR.N.’s parental rights was in S.R.’s best interest. The trial court therefore did not err by admitting this testimony. This assignment of error is without merit.

Sufficiency of the Evidence

The last two assignments of error essentially raise a claim for insufficiency of the evidence. The trial court, in its judgment and reasons, expressly found that the State proved, by clear and convincing evidence, that K.R.N. had abandoned her child as defined in Children’s Code article 1015(4)(b), and further found that termination of parental rights was in the best interest of the minor child. We review these findings under the manifest error standard. State ex rel. E.N., 2000-0239, pp. 10-11 (La.App. 4 Cir. 8/2/00), 774 So.2d 194, 199.

As recognized by the United States Supreme Court and by the Louisiana Supreme Court, “[t]he liberty interest in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.” State ex rel. S.M.W., 2000-3277, p. 12 (La.2/21/01), 781 So.2d 1223, 1232 (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000)). While acknowledging the importance of this interest, the Louisiana Supreme Court noted:

The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated.

2000-3277, p. 12, 781 So.2d at 1232 (quoting State ex rel J.A., 99-2905 (La.1/12/00), 752 So.2d 806, 811-12).

With these principles in mind, we review the law of termination and the facts in the record before us. Title X of the Louisiana Children’s Code governs the involuntary termination of parental rights. Article 1015 provides the grounds for termination, one of which is abandonment. Abandonment is defined as the placing of the child “in the physical custody of a non-parent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility” by either deserting the child, failing to support the child or failing to communicate with the child. See La. Ch. C. art. 1015(4). While there are three different grounds of abandonment, the State need only establish one ground; however, the judge must also find that the termination is in the best interest of the child. See La. Ch. C. art. 1039; State ex rel. A.D.S., 2004-0250, p. 5 (La.App. 4 Cir. 9/29/04), 888 So.2d 913, 917. As this court has held:

Termination of parental rights is a two prong inquiry: (1) the State, by clear and convincing evidence, must establish at least one statutory ground for termination and (2) only after a finding that at least one of the statutory grounds is satisfied, the trial court must determine | ^whether the termination is in the child’s best interest. State ex rel. L.B. v. G.B.B. 2002-1715 (La.12/4/02), 831 So.2d 918.

2004-0250, p. 9, 888 So.2d at 919.

In this instance, the State alleged in its petition that KR.N.’s rights should be terminated because, as of the time the petition for termination of parental rights was filed, she had “failed to provide significant contributions to the child’s care and support for any period of six consecutive months” as provided for in Louisiana Children’s Code article 1015(4)(b) and had failed to “maintain significant contact with the child by visiting [her] or communicating with [her] for any period of six consecutive months,” as provided for in Louisiana Children’s Code article 1015(4)(c).

The record fully supports the trial court’s conclusions in this case. K.R.N. voluntarily placed her infant daughter in the care of Teri and Jeff Conrad when S.R. was younger than one year. K.R.N. initially visited S.R. while she was in the Conrads’ home, but there is no evidence that she ever provided “significant contributions” to the child’s care or support. By all accounts, the Conrads have cared for, supported and nurtured this child for most of her short life.

During trial, K.R.N. was unable to state, with any kind of specificity, when, if ever, S.R. had lived with her. In 2011, when K.R.N. left Louisiana for Oklahoma, she left without providing any money, clothes or support for S.R. and without providing the Conrads with any legal authority to care for S.R. in the event of an emergency. While K.R.N. testified that she only intended to go to Oklahoma for a week and did not intend to permanently leave S.R. with the Conrads, her actions prove otherwise. Prior to leaving for Oklahoma, K.R.N. put all of her belongings in storage and did not maintain a place in Louisiana to live. Further, by 112the time K.R.N. left for Oklahoma, S.R. had been in the care and custody of the Conrads for at least a year and a half.

Similarly, K.R.N.’s testimony that she had returned in August of 2011 to get S.R. but was prevented from doing so by the Conrads is called into question by her actions. K.R.N. did not attempt at that time to retrieve the child from her legal father, F.R., to whom the Conrads supposedly had sent S.R.; nor did K.R.N. make any attempt to visit either of her other daughters while in Louisiana. Moreover, K.R.N. took no action (legal or otherwise) to gain access to S.R. during the eight months between that trip and the time DCFS became involved. Further, once DCFS informed K.R.N. of the steps she needed to take to be reunited with S.R., K.R.N. was non-compliant. From the time she went to Oklahoma in 2011 up until the date the petition for termination was filed, K.R.N. paid a single money order of $50 for the support of S.R., and participated in only one family team conference.

As this court has recognized, the “lack of financial support and the failure to comport with the family reunification or case plan” are factors which support a finding of abandonment. State ex rel. A.D.S., supra, p. 9, 888 So.2d at 917.

K.R.N. testified that she did not intend to abandon her child. She expressed love for her daughter. This court does not doubt her intentions or her love. However, children need more. “[P]arental responsibilities are not fulfilled by merely expressing concern or having good intentions.” State in Interest of D.L., 457 So.2d 141, 146 (La.App. 2d Cir.1984). S.R. is totally dependent on the adults in her life to care for her, protect her, support her and love her. It is clear from the evidence presented that K.R.N. was unable or unwilling to provide for these basic needs of her child.

11sFortunately for S.R., the Conrads have willingly provided for her safety and protection during her young years. And, they have done more. All of the evidence indicates that S.R. is well cared for and has bonded to the Conrads. They have provided her with a safe, loving and permanent home and have stated their intention to adopt her should she be freed for adoption. It is also evident from these proceedings that S.R. enjoys a close and loving relationship with her older sister, K.N. — a relationship that has been fostered by the Conrads, not by K.R.N. As noted by our Supreme Court: “It is undisputed that children require stable, long-term, continuous relationships with their parents or foster parents.” State ex rel. D.L.R., 2008-1541, p. 17 (La.12/12/08), 998 So.2d 681, 691 (quoting Lehman v. Lycoming County Children’s Serv. Agency, 458 U.S. 502, 513, 102 S.Ct. 3281, 3238, 73 L.Ed.2d 928(1982)). In this case, that stability has been provided by the Conrads.

We find no manifest error in the trial court’s findings that the State proved abandonment and that the termination of parental rights is in the best interest of this child. Accordingly, we affirm the judgment of the trial court terminating the parental rights of K.R.N. and F.R. to the child, S.R., and declaring S.R. to be free and eligible for adoption.

AFFIRMED.

      . It is unclear from the record whether DCFS was involved in the voluntary placement of S.R. and/or whether they had any contact with S.R., the Conrads or either of S.R.'s parents from the time S.R. was voluntarily placed with the Conrads in 2008 until the report in April of 2012 which triggered these proceedings.

      . There is no evidence in the record as to the identity of S.R.’s biological father.

      . K.R.N. and F.R. had been divorced since 2009.

      .There is nothing in the record to suggest that B.N. is S.R.'s biological father.


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge. LOBRANO, J.,

license: Public Domain

text:
    ESPLANADE RIDGE CIVIC ASSOCIATION v. The CITY OF NEW ORLEANS.
    No. 2013-CA-1062.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 12, 2014.

      Thomas Welch Milliner, Brian Jude Burke, Anzelmo Milliner & Burke, LLC, Metairie, LA, for Plaintiff/Appellant.
    Christy C. Harowski, Deputy City Attorney, Sharonda R. Williams, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

| ¶This is an appeal by the Esplanade Ridge Civic Association (“ERCA”) from a judgment rendered by the trial court that affirmed a decision of the City of New Orleans’ Board of Zoning Adjustments (“BZA”) that granted a zoning variance for 2535 Esplanade Avenue. After reviewing the record and applicable law, we affirm the decision of the district court.

ERCA is a non-profit corporation dedicated to promoting the development, redevelopment, and renewal of the area of the city from North Rampart Street to North Broad Street and from Orleans Avenue to St. Bernard Avenue. ERCA has a number of members living in the immediate vicinity of 2585 Esplanade Avenue.

The property located at 2535 Esplanade Avenue is located in a RM-3 Multiple-Family Residential District. GCHP Esplanade, LLC. (“GCHP”) has proposed to construct a facility of forty individual apartments at that address, that will include twenty “permanent supportive housing” units. According to the materials supplied by GCHP, “supportive housing” combines permanent, affordable housing with “onsite supportive services.”

[2To that end, GCHP has filed several different applications with the BZA since March 2010 to obtain the necessary zoning variances to develop the property; ERCA has opposed GCHP’s efforts at every step. Particularly pertinent to this case is GCHP’s January 2011 variance application to the BZA for a setback waiver. Prior to the BZA hearing on GCHP’s application, Paul May, then-Director of Safety & Permits of the City of New Orleans, issued a decision letter stating that the proposed use of 2535 Esplanade as represented in GCHP’s BZA application, including the existence of a case management office, was not permitted because it did not comply with the city’s Comprehensive Zoning Ordinance (“CZO”) permitted uses in the RM-3 district in which the property is located. GCHP appealed this determination to the BZA, and the matter was ultimately set for hearing on 16 November 2011.

At the BZA’s public hearing, GCHP appeared to appeal the determination set out in the Paul May letter. After considering the facts and arguments by those who spoke at the hearing, the BZA granted GCHP’s appeal and ordered that Paul May’s determination should not be interpreted in a way that would deprive GCHP of any of its rights under the federal Fair Housing Act (“FHA”), 42 U.S.C.A. § 3601, et seq. In addition, the BZA ordered that GCHP’s request for a reasonable accommodation under the FHA be placed on the BZA’s agenda for its next meeting in December 2011. The BZA also noted that Paul May’s determination failed to take into consideration GCHP’s request for reasonable accommodations under the FHA.

| aAt the public hearing, GCHP’s request for a reasonable accommodation under the FHA was granted by the BZA. Specifically, GCHP was permitted to operate a case management office on site, and was not required to provide any additional parking spaces.

ERCA appealed the BZA’s decision to the district court pursuant to La. R.S. 38:4727. After the hearing, the district court upheld the BZA’s decision, finding that the BZA properly designated 2535 Esplanade as “multi-family” housing under the CZO and acknowledging that the FHA required the BZA to make a reasonable accommodation to GCHP so that it could offer equal opportunity housing to the handicap community. In its reasons, the district court specifically stated that “the BZA did not abuse its authority so as to warrant reversal given its attempt to comply with federal law.” This timely appeal followed.

Questions of law are reviewed by this court under the de novo standard of review. Cordes v. Board of Zoning Adjustments, 09-0976, p. 6 (La.App. 4 Cir. 1/20/10), 31 So.3d 504, 508, citing Sarpy v. ESAD, Inc., 07-0347, p. 4 (La.App. 4 Cir. 9/19/07), 968 So.2d 736, 738. 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.” Elysian Fields, Inc. v. St. Martin, 600 So.2d 69, 72 (La.App. 4th Cir.1992). A decision of the BZA is afforded a presumption of validity. Flex Enterprises, Inc. v. City of New Orleans, 00-0815, p. 6 (La.App. 4 Cir. 2/14/01), 780 So.2d 1145, 1149. However, the presumption is 14rebuttable. Curran v. Board of Zoning Adjustments through Maso, 580 So.2d 417, 418 (La.App. 4th Cir.1991). In King v. Caddo Parish Com’n, 14-15 (La.10/20/98), 719 So.2d 410, 418, the Court stated:

The test of whether a zoning board’s action is arbitrary and capricious is whether the action is reasonable under the circumstances. Papa [v. City of Shreveport, 27,045, pp. 4-5 (La.App. 2 Cir. 9/29/95),] 661 So.2d [1100] at 1103; (citing Clark v. City of Shreveport, 26,638 (La.App. 2 Cir. 5/10/95), 655 So.2d 617); Castle Investors v. Jefferson Parish Council, 472 So.2d 152 (La.App. 5th Cir.); writ denied, 474 So.2d 1311 (La.1985). “A 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.” Papa, supra, 27,045 at pp. 4-5, 661 So.2d at 1103.

Under La. R.S. 33:4727 A(l), a board of adjustment “may determine and vary” zoning regulation applications “in harmony with their general purpose and intent and in accordance with the general or specific rules contained therein.” Under La. R.S. 33:4727 C(3)(c), a board of adjustment (here, the BZA) is mandated to:

In passing upon appeals, where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance, to vary or modify the application of any of the regulations or provisions of the ordinance relating to the use, construction, or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done.

Under La. R.S. 33:4727 E, the district court, upon petition for review, may allow a writ of certiorari to review decisions by the board of adjustment. The district court may take additional testimony or receive additional evidence as part | fjOf its consideration of such an appeal from the board of adjustment. La. R.S. 33:4727 E(4). Such additional evidence and testimony may be entertained whenever the district court is of the opinion it is warranted. Lakeshore Property Owners Ass’n, Inc. v. City of New Orleans Board of Zoning Adjustments, 481 So.2d 162, 165 (La.App. 4th Cir.1985).

The Home Rule Charter of the City of New Orleans created the City Planning Commission, which consists of nine members appointed by the Mayor with the approval of the City Council. See New Orleans Home Rule Charter, Art. V, § 5-401. New Orleans Home Rule Charter, Art. V, § 5-408(1) provides that the BZA is attached to the City Planning Commission and consists of seven members appointed by the Mayor with the approval of the City Council. Pursuant to New Orleans Home Rule Charter, Art. V, § 5-408(2), the BZA has the authority to:

(a) Hear and determine appeals from applicants who have been refused building permits because of a violation or conflict with the zoning ordinance or the official map of the City. ,
(b) Hear and decide appeals where error is alleged in any order, requirement, decision, or determination made by an administrative official in the enforcement of the zoning ordinance of the City.
(c) Have the power to permit variations from the zoning regulations in classes of cases or situations and in accordance with the principles, conditions, and procedures specified in and subject to the limitations imposed by the zoning ordinances of the City.

The CZO create a number of different districts, each of which' has a purpose, and various proscribed uses: authorized, permitted, accessory, and conditional. Section 4.11 of the CZO addresses the RM-3, Multiple-Family Residential District, Rin which the subject property is located. The purpose of the district is to “provide for a variety of dwelling types of medium-high density while protecting the character of the surrounding area by limiting uses and signs. New Orleans CZO, § 4.11.1. One of the permitted uses in the RM-3 district is “multiple family dwellings.” New Orleans CZO, § 4.11.3(4). Accessory uses in the RM-3 district include an office, a laundry room, coin-operated vending machines, and a dining room in multiple-family dwellings with ten to fifty dwelling units. New Orleans CZO, § 4.11.4(2), (3), (6), (7). Thus, an apartment building consisting of forty dwelling units is a permitted use in a RM-3 district. An apartment is defined in the CZO as “[a] dwelling unit with culinary facilities designed for or used as a living quarters for a family.” New Orleans CZO, § 2.2(9).

The evidence in the record reveals that the property, formerly a forty-room nursing home, was obtained by GCHP for the purpose of renovating the property to create a total of forty efficiency apartments. It intends to rent twenty of the units to formerly homeless individuals with disabilities with onsite supportive services and the remaining units to low-income individuals. The apartments provide permanent, rather than temporary, housing.

The ERCA attempts to characterize the property as a “residential care center,” defined by New Orleans CZO, § 2.2(151) as:

Residential Care Center. A building other than an' apartment hotel, hotel, small or large group home, rooming house, tourist home, motel or motor lodge, providing temporary lodging and board and a special program of specialized care and counseling on a full-time basis for fifteen (15) or more individuals who are displaced from their normal living environment, where such building is operated under the auspices of an entity which is designated as educational, religious, eleemosynary, public or nonprofit by the . Federal Internal |7Revenue Service and are licensed by the State of Louisiana.

Residential care centers are permitted in a RM-4 district but not in a RM-3 district.

By characterizing the subject property as a “residential care center,” the ERCA argues that the BZA exceeded its authority under the Home Rule Charter because the proposed main use of the property is not a permitted use in a RM-B district. In other words, the BZA’s decision resulted in an illegal zoning change. In particular, the ERCA points to the proposed existence of full-time supportive services in addition to the dwelling units. The GCHP proposal states that supportive housing “combines affordable apartments with case management, social support and employment services.” The ERCA also contends that the presence of a “case management office” supports its argument that this most closely resembles a residential care center, not a multiple family dwelling.

In response, the City argues that the subject property does not fall within the definition of a residential care center because the facility provides neither temporary lodging nor board. Instead, the proposed facility provides permanent housing via forty apartments. It also asserts that the ERCA is attempting to create the phrase “supportive housing unit” as a new term under the CZO so that it can claim that there are actually twenty “apartments” and twenty “supportive housing units” at the facility. The CZO does not contain a definition or classification for “supportive housing units.” Instead, it defines “apartment,” which requires its own culinary facilities, which all the apartments in question will contain.

As we stated in Palm-Air Civic Ass’n, Inc. v. Syncor Int’l Corp., 97-1485, p. 7 (La.App. 4 Cir. 3/4/98), 709 So.2d 258, 262:

|sThe first principle of zoning law is that because zoning ordinances are in derogation of a citizen’s constitutionally protected right to own and use his property, they must be construed, when subject to more than one reasonable interpretation, according to the interpretation which allows the least restricted use of the property. City of New Orleans v. Elms, 566 So.2d 626, 632 (La.1990), superseded by Statute, see Parish of Jefferson v. Jacobs, 623 So.2d 1371 (La.App. 5 Cir.1993). The Supreme Court reiterated the arbitrary and capricious standard that had been found in our jurisprudence as early as 1923 (State ex rel. Civello, 154 La. 271, 97 So. 440 (1923)) in Palermo Land Co. v. Planning Com’n of Calcasieu Parish, 561 So.2d 482, 493 (La.1990), holding that the burden of proof is on plaintiffs to show an arbitrary and unreasonable exercise of authority, and that whenever the propriety of a zoning decision is debatable, it will be upheld. Thus, doubts as to the reasonableness of the City’s action in issuing the permits at issue herein are to be resolved in favor of the defendants.

Despite the availability of “supported services” for some of the tenants of the proposed facility, we find that this proposed structure most closely resembles an apartment building, or as stated in the RM-3 district, a “multiple family dwelling,” than a “residential care center.” This interpretation results in the least restricted use of the property. Thus, we find that the BZA had the authority to hear the instant matter and, further, did not abuse its discretion by granting the variances. Even if we were to find the BZA’s decision debatable, which we do not, we are bound to uphold it.

We note, however, that GCHP appeared before the BZA and requested a reasonable accommodation under the terms of the FHA. This request was granted by the BZA.

The FHA, through 42 U.S.C.A. § 3615, applies to the City of New Orleans:

Nothing in this subchapter shall be construed to invalidate or limit any law of a State or political subdivision of a State, or of any other jurisdiction in |flwhich this subchapter shall be effective, that grants, guarantees, or protects the same rights as are granted by this subchapter; but any law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid.

Furthermore, it is unlawful under the FHA and considered discrimination for the City of New Orleans to refuse “to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person [including the disabled] equal opportunity to use and enjoy a dwelling.” 42 U.S.C.A. § 3604(f)(3)(B).

Thus, any interpretation of the CZO is subject to the terms of the FHA and the application of reasonable accommodations. Oxford House-C v. City of St. Louis, 77 F.3d 249, 251 (8th Cir.1996); Groome Resources, Ltd., L.L. C. v. Parish of Jefferson, 52 F.Supp.2d 721, 724 (E.D.La.1999). An accommodation is reasonable if it “does not cause any undue hardship or fiscal or administrative burdens on the municipality, or does not undermine the basic purpose that the zoning ordinance seeks to achieve.” Oxford House v. City of Baton Rouge, Louisiana, 932 F.Supp.2d 683, 692 (M.D.La.2013) citing, Oxford House, Inc. v. Town of Babylon, 819 F.Supp. 1179, 1186 (E.D.N.Y.1993); see also Oxford House, Inc. v. Township of Cherry Hill, 799 F.Supp. 450, 461 (D.N.J.1992)(noting that an accommodation is unreasonable if it “either imposes undue financial and administrative burdens ... or requires a fundamental alteration in the nature of the program[.]” (Internal citations and quotations omitted)). Because we find that this facility most closely resembles a “multiple family dwelling,” as permitted in a RM-3 district, the basic purpose of the zoning ordinance is achieved and an undue hardship or burden is not imposed on the city.

| inThe BZA appropriately considered GCHP’s request for reasonable accommodations and correctly granted the same. We cannot say and do not find that the BZA erred in its application of the FHA in this matter.

Based on the foregoing, we find in favor of the City of New Orleans and dismiss the instant appeal with prejudice.

AFFIRMED.

LOBRANO, J., concurs with reasons.

LOBRANO, J.,

concurs with reasons.

I agree with the majority’s finding that the proposed use of the facility located at 2535 Esplanade Avenue, including the use of a case management office on site, is permitted in a RM-3 Multiple-Family Residential District. I also agree with the majority’s finding that the facility closely resembles an apartment building or as stated in the RM-3 Multiple-Family District, a “multiple family dwelling” rather than a “residential care center.” However, I disagree with the majority’s application of the federal Fair Housing Act, 42 U.S.C.A. §§ 3601, et seq. The issue regarding GCHP Esplanade’s requests for zoning variances and reasonable accommodations under the FHA is moot because we find that this type of facility is permitted in a RM-3 Multiple-Family Residential District.

      . We also note that a "case management office” is not defined in the CZO.