City of New Orleans v. Bd. Of Dir. Of State Museum

• Decision Date: 02 March 1999
• Docket Number: No. 98-C-1170.,98-C-1170.
• Citation: City of New Orleans v. Bd. Of Dir. Of State Museum, 739 So.2d 748 (La. 1999)
• Parties: CITY OF NEW ORLEANS and the Vieux Carré Commission v. BOARD OF DIRECTORS OF the LOUSIANA STATE MUSEUM, James Sefcik; Tammany Contracting Company; and The Department of Culture, Recreation and Tourism.
• Court: Louisiana Supreme Court

739 So.2d 748

CITY OF NEW ORLEANS and the Vieux Carré Commission v. BOARD OF DIRECTORS OF the LOUSIANA STATE MUSEUM, James Sefcik; Tammany Contracting Company; and The Department of Culture, Recreation and Tourism.

No. 98-C-1170.

Supreme Court of Louisiana.

March 2, 1999.

Richard P. Ieyoub, Atty. Gen., David A. Dalia, New Orleans, Gary L. Keyser, Baton Rouge, Counsel for Applicant.

Harry E. Cantrell, Jr., New Orleans, Avis M. Russell, City Atty., Counsel for Respondent.

Anthony C. Marino, New Orleans, Counsel for amicus curiae Vieux Carre Property Ass'n.

James R. Logan, IV, New Orleans, Counsel for amicus curiae Louisiana Landmarks Society.

Lloyd N. Shields, Daniel Lund, III, Michelle L. Corrigan, New Orleans, Counsel for amicus curiae Preservation Alliance of New Orleans and Preservation Resource Center.

KNOLL, Justice.¹

The controversy before us concerns a dispute between the Vieux Carré Commission (hereinafter "VCC") and the Louisiana State Museum (hereinafter "LSM") as to whether the VCC can enjoin the LSM from installing a fence to enclose the arcade of the Cabildo in the French Quarter of New Orleans.² The trial court granted the LSM's exception of no cause of action and dismissed the VCC's temporary restraining order and petition for injunction. On appeal, the Fourth Circuit reversed and remanded the case, holding both that the VCC had jurisdiction over state-owned buildings within the Vieux Carré and that requiring the State to comply with the VCC's permit procedure did not abridge the State's police power. We granted this writ to further study the correctness vel non of the court of appeal's judgment.³ We now vacate and set aside the court of appeal's judgment and reinstate the trial court's judgment concluding that the VCC's actions and denial of the permit for an architecturally and historically accurate fence to protect the Cabildo were unreasonable, arbitrary, and capricious, and thereby abridged the police power of the State.⁴

FACTS

The LSM, originally known as the Board of Curators, was created in 1906 when the State decided to house the exhibits it had sent to the Louisiana Purchase Exposition in St. Louis. In 1908, the City of New Orleans transferred the Cabildo to the Board of Curators in perpetuity for museum purposes.⁵ The Cabildo is one of Louisiana's most historic buildings. Built in 1795 as the seat of the Spanish governing body in New Orleans, the Cabildo was the site of the signing of the Louisiana Purchase Transfers of 1803. Further, in the late nineteenth century, the Cabildo served as both the situs for the New Orleans City Hall and the home of the first Louisiana Supreme Court.

The City of New Orleans established the first Vieux Carré Commission in 1925. By municipal ordinance, the City created the Commission to preserve those structures of special historic interest whose old, quaint, and unusual architectural construction made them objects of special interest. However, this Commission lacked any statutory authority to effectuate preservation of these structures in the Vieux Carré. Recognizing this impairment and the historical and architectural importance of the Vieux Carré, the citizens of this State on November 3, 1936, amended Article XIV, § 22(A) of the Louisiana Constitution of 1921 and authorized the New Orleans City Council to create the current VCC.

Amended Article XIV, § 22(A) was divided into six entitled sections: creation and membership, purpose, definition of boundaries, tax exemption for certain buildings, acquisition of buildings, and duties of the commission. The amendment provided in pertinent part:

Section 22A. Creation; membership. The Commission Council of the City of New Orleans is hereby authorized to create and organize a Commission to be known as the Vieux Carré Commission, to be appointed by the Mayor of said City with the advice and consent of its Commission Council and to be composed of nine members, all of whom shall be citizens of the City of New Orleans....

. . . .

Purpose. The said Commission shall have for its purpose the preservation of such buildings in the Vieux Carré section of the City of New Orleans as, in the opinion of said Commission, shall be deemed to have architectural and historical value, and which buildings should be preserved for the benefit of the people of the City of New Orleans and the State of Louisiana, and to that end the Commission shall be given such powers and duties as the Commission council of the City of New Orleans shall deem fit and necessary.

Vieux Carré Section defined. The Vieux Carré section of the City of New Orleans is hereby defined to comprise all that area within the City Limits of the City of New Orleans contained within the following boundaries: The River, Uptown side of Esplanade Avenue, the River side of Rampart Street, and the lower side of Iberville Street.

Buildings; tax exemption; preservation.....

Buildings; acquisition. The preservation of the buildings in the Vieux Carré section of New Orleans having architectural and historical value is hereby declared to be a public purpose....

Duties of commission. Hereafter and for the public welfare and in order that the quaint and distinctive character of the Vieux Carré section of the City of New Orleans may not be injuriously affected, and in order that the value to the community of those buildings having architectural and historical worth may not be impaired, and in order that a reasonable degree of control may be exercised over the architecture of private and semi-public buildings erected on or abutting the public streets of said Vieux Carré section, whenever any application is made for a permit for the erection of any new building or whenever any application is made for a permit for alterations or additions to any existing building, any portion of which is to front on any public street in the Vieux Carré section, the plans therefor, so far as they relate to the appearance, color, texture of materials and architectural design of the exterior thereof shall be submitted by the owner to the Vieux Carré Commission and the said Commission shall report promptly to the Commission Council its recommendations, including such changes, if any, as in its judgment are necessary, and the said Commission Council shall take such action as shall, in its judgment, effect reasonable compliance with such recommendation, or to prevent any violation thereof.

The Commission Council of the City of New Orleans may, by ordinance or otherwise, carry the above and foregoing provisions into effect.

LA.CONST. art. XIV, § 22(A) (1921) (emphasis added). The Louisiana Constitution of 1974 retained the authority for the VCC in Article VI, § 17.⁶ Accordingly, the specific provisions of section 22(A) are retained as constitutional authority. Acting pursuant to this enabling amendment, the City of New Orleans on March 3, 1937, created the VCC by Ordinance No. 14,538.⁷ See NEW ORLEANS, LA., COMMISSION COUNCIL SERIES No. 14,538 (1937). The City of New Orleans has amended the ordinance's provisions several times; however, it has consistently retained its substance.⁸

The LSM is responsible for the maintenance and preservation of eight historic buildings in New Orleans: the Cabildo, the Presbytére, the Jackson House, the Creole House, the Arsenal, Madame John's Legacy, the Old U.S. Mint, the Lower Pontalba Buildings, and the W.R. Irby Trust. In 1988, fire severely damaged the Cabildo, requiring the demolition and renovation of its third floor. Immediately after this incident, the LSM began experiencing problems with vandalism at the Cabildo. On a daily basis, the Cabildo personnel were required to clean, sweep, and hose under the arcade to remove urine, excrement, vomit, and other matter deposited nightly by trespassers. Moreover, vagrants regularly frequented the Cabildo's arcade, using it as a flophouse and littering the area with cans, broken bottles, cardboard, newspapers, and other debris. The LSM became concerned about the safety of the Cabildo, its appearance, its contents, its staff, and its visitors. It often became necessary to call the New Orleans Police Department to remove individuals who were either intoxicated, belligerent, or threatening. Interestingly enough, the early history of the Cabildo reflects the same concerns and need for a protective fence that are present today. On February 25, 1809, the New Orleans City Council requested that the mayor place a fence at the Cabildo to prevent "unclean acts from being committed." (R. at 83-85, 89).

Restoration of the fire-damaged Cabildo began in 1991, at which time an architecturally and historically accurate, protective fence was considered to enclose the arcade of the Cabildo to prevent further desecration of the building. However, the fence was not installed due to a lack of funding. At the time, the Cabildo was the only building on the Chartres Street mall lacking a protective fence.⁹

By 1995, the LSM obtained funding to install a fence to enclose the arcade of the Cabildo. That same year, the LSM notified the VCC by "courtesy" letter of the safety and security problems at the Cabildo and of LSM's intent to erect an architecturally and historically correct iron fence similar to the one protecting the Presbytére's arcade. Appended to this letter was a complete description of the details of the work to be performed, with an explanation of all requirements for historical authenticity and appearance. To ensure historical accuracy, Mr. Sefcik, the Director of the LSM, requested that the State's Office of Facility Planning & Control Department of the Division of Administration staff insure that the Cabildo's fence be identical to the Presbytére's fence in design, size, color, and appearance. The LSM wanted to replicate the fence at the Presbytére because it dated back more than 150 years and because it prevented the same dangers and problems from occurring at the Presbytére that it was experiencing at the Cabildo.¹...