City of New Orleans v. State

• Decision Date: 13 November 1978
• Docket Number: No. 62214,62214
• Parties: CITY OF NEW ORLEANS and Department of Safety and Permits, Through its Director, Edward C. Kurtz v. The STATE of Louisiana, the Louisiana Department of Corrections Board of Corrections, and C. Paul Phelps, Director of Corrections.
• Court: Louisiana Supreme Court

Page 1020

364 So.2d 1020

CITY OF NEW ORLEANS and Department of Safety and Permits, Through its Director, Edward C. Kurtz v. The STATE of Louisiana, the Louisiana Department of

Corrections Board of Corrections, and C. Paul

Phelps, Director of Corrections.

No. 62214.

Supreme Court of Louisiana.

Nov. 13, 1978.

Rehearing Denied Dec. 14, 1978.

William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., Ronald C. Davis, Staff Atty., New Orleans, for defendants-applicants.

Donald A. Hoffman, City Atty., Thomas P. Anzelmo, Sr., Asst. City Atty., for plaintiffs-respondents.

SANDERS, Chief Justice.

In this action to enforce its zoning ordinances, the City of New Orleans seeks to enjoin the State of Louisiana from using Jackson Barracks as a prison for the housing and/or treatment of convicted criminals, and from transferring convicted felons under the control of the Department of Corrections to the state-owned facility located at Jackson Barracks. The State filed peremptory exceptions raising prescription and its governmental function in the district court. The district court overruled defendants' governmental exception; the Court of Appeal denied writs. Subsequently, the district court sustained the peremptory exception of prescription, and the City appealed. The Court of Appeal reversed the district court's decision, which had sustained the exception of prescription, and remanded for a trial on the merits. 357 So.2d 81 (1978). On application of the State, we granted writs to review the proceedings below. La., 359 So.2d 208 (1978).

The Louisiana Department of Corrections has operated a work release program at Jackson Barracks, a state-owned facility in the City of New Orleans, since 1969. The program was established to provide transitional employment for state prisoners who would soon be eligible for parole. Under the municipal zoning ordinance, Jackson Barracks is located in an area zoned as Two-Family Residential. Although the municipal authorities were aware of the program, they brought no action to enforce the zoning ordinance.

In 1976, the Department of Corrections instituted a special medical unit for mentally disturbed prisoners at Jackson Barracks. The unit was designed to provide medical treatment for prisoners previously incarcerated at the State Penitentiary. The City of New Orleans then brought this suit to enforce its zoning ordinance.

Two threshold questions are presented for our review:

(1) Is the controversy moot because of legislative action?

(2) May a city, through its zoning ordinances, restrict the State's use of state-owned property in performing a governmental function within a zoned area?

In its brief to this Court, the City asserts that this action is now moot because of the Legislature's enactment of Act No. 700 of 1977 (LSA-R.S. 15:893.1). The statute prohibits the assignment of ten classes of prisoners to Jackson Barracks, thus restricting the use of the facility to low-risk prisoners. LSA-R.S. 15:893.1A(7) specifically prohibits the assignment to Jackson Barracks of "persons who are currently under and/or who have demonstrated a need for extensive and/or intensive medical treatment."

The statute resolves the most pressing controversy, that of the Special Medical Unit, which served as a catalyst for the present suit. In its petition, however, the City seeks additional relief. The City prays that the defendants be enjoined from:

" . . . converting, renovating, operating or using the property located at Jackson Barracks, New Orleans, Louisiana, as a prison for the housing and/or treatment of convicted criminals and from transferring convicted felons under the control of the Department of Corrections of the State of Louisiana to the state-owned facility located at Jackson Barracks, New Orleans, Louisiana. . . ."

Further, the City prays for judgment:

" . . . decreeing the above described acts (use of Jackson Barracks as a prison) of the defendants to be injurious to plaintiffs and a violation of the Home Rule Power of the City of New Orleans and the Zoning Ordinance of the City of New Orleans. . . ."

As we view the petition, the City seeks to broadly restrain the State from using its property as a correctional unit. Hence, we conclude that the action is still viable.

The question of whether the City can restrict the State's governmental use of state-owned property by a zoning ordinance requires an analysis of the police power.

It is settled that: (1) zoning ordinances are the exercise of the State's police power; and (2) police power denotes the State's authority to impose restraints on private rights which are necessary for the general welfare of its citizens. City of Lake Charles v. Wallace, 247 La. 285, 170 So.2d 654 (1964); Louisiana Gas Service Company v. Louisiana Public Service Commission, 245 La. 1029, 162 So.2d 555 (1964); Michell v. Louisiana State Board of Optometry Examiners, 245 La. 1, 156 So.2d 457 (1963), appeal dismissed, 377 U.S. 128, 84 S.Ct. 1180, 12 L.Ed.2d 185; Plebst v. Barnwell Drilling Company, 243 La. 874, 148 So.2d 584 (1963); Civello v. City of New Orleans, 154 La. 271, 97 So. 440 (1923); Union Ice & Coal Company v. Town of Ruston, 135 La. 898, 66 So. 262 (1914); 82 Am.Jur.2d, Zoning and Planning, § 5, p. 390.

Article 6, Section 17 of the Louisiana Constitution (1974), grants zoning authority to local governmental subdivisions:

"Subject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning, and historic preservation, which authority is declared to be a public purpose; (2) create commissions and districts to implement those regulations; (3) review decisions of any such commission; and (4) adopt standards for use, construction, demolition, and modification of areas and structures. Existing constitutional authority for historic preservation commissions is retained."

This constitutional grant, however, does not abridge the State's police power. Article 6, Section 9(B) of the Louisiana Constitution of 1974 provides that: "Notwithstanding any provision of this Article, the police power of the state shall never be abridge." ¹ See Plebst v. Barnwell Drilling Company, supra; State v. City of New Orleans, 151 La. 24, 91 So. 533 (1922).

The constitutional provision has been implemented by state statute. LSA-R.S. 33:4722 grants to municipalities the power to adopt regulations for land use and zoning. LSA-R.S. 33:4728 authorizes the municipalities to seek injunctive relief for zoning violations.

Article 6, Section 9(B) of the Constitution removes any doubt as to the effect of the statutory and constitutional provisions: they do not abridge the police power of the State. That power necessarily remains dominant. The municipal police power is subordinate to that retained by the State as sovereign. Hence, municipal zoning ordinances cannot control the State's use of its property in performing a governmental function. Our views comport not only with the clear provisions of the constitution, but also with the views voiced by the delegates to the Louisiana Constitutional Convention prior to adopting the provisions discussed herein. State of Louisiana Constitutional Convention of 1973, Verbatim Transcripts, Vol. 38, Proceedings, 117th day, pp. 15-17; Vol. 19, Proceedings, 58th day, pp. 41-42.

While the law and jurisprudence of...