City of New Orleans Through Dept. of Safety and Permits v. Board of Com'rs of Orleans Levee Dist.

• Decision Date: 14 January 1993
• Docket Number: No. 92-CA-0148,92-CA-0148
• Citation: 612 So.2d 318
• Parties: CITY OF NEW ORLEANS, Through its DEPARTMENT of SAFETY and PERMITS and the City Planning Commission v. BOARD OF COMMISSIONERS of the ORLEANS LEVEE DISTRICT.
• Court: Court of Appeal of Louisiana — District of US

Page 318

612 So.2d 318

CITY OF NEW ORLEANS, Through its DEPARTMENT of SAFETY and PERMITS and the City Planning Commission v. BOARD OF COMMISSIONERS of the ORLEANS LEVEE DISTRICT.

No. 92-CA-0148.

Court of Appeal of Louisiana Fourth Circuit.

Jan. 14, 1993.

Rehearing Denied Feb. 12, 1993.

Richard J. McGinity, Gen. Counsel, Bd. of Com'rs of the Orleans Levee Dist., New Orleans, for appellee.

N. Eleanor Graham, Deputy City Atty., Brett Prendergast, Chief of Civil Litigation, Kathy Torregano, Chief Deputy City Atty., William D. Aaron, Jr., City Atty., New Orleans, for appellant.

BARRY, WARD and JONES, JJ.

JONES, Judge.

The City of New Orleans appeals a decision of the trial court maintaining the Board of Commissioners of the Orleans Levee District's exception of no cause of action and dismissing the City's petition for declaratory judgment and injunctive relief against the Levee Board. We affirm the decision of the trial court.

FACTS

The City of New Orleans, through its Department of Safety and Permits and the City Planning Commission commenced this action for declaratory judgment and injunctive relief in the Civil District Court for the Parish of Orleans.

The City alleged that the defendant was in the process of developing a marina known as the South Shore Harbor Marina (hereinafter, South Shore Harbor) which is located on property within Orleans Parish. The defendant owns, by grant from the State, all lands on which the marina is being developed. This land is zoned "Park and Recreation District" pursuant to various provisions of the City's Comprehensive Zoning Ordinance. The ordinance contains provisions which the City argues mandates city approval for marinas and developments like South Shore Harbor as a conditional use in areas zoned as a "Park and Recreation District."

The defendant initially submitted plans for the South Shore Harbor development to the City. However, in February 1984, the defendant commenced construction of the marina without having sought approval for it to operate as a conditional use from the City Planning Commission. In March 1986, construction commenced on 26 covered boat slips at South Shore Harbor without defendant or any of its contractors applying for building permits for said construction. After construction started, one of the contractors applied for and received a building permit and a use and occupancy certificate for the boat slips. The certificate was issued upon the promises by a representative of the defendant to seek a conditional use from the City Planning Commission for South Shore Harbor. On May 21, 1986, the defendant Levee Board allegedly adopted a resolution authorizing its president or managing director to execute a conditional use application with the City Planning Commission. A building permit was issued on August 18, 1987 for the installation of fuel tanks and pumps to service South Shore Harbor.

In April or May, 1988 the City learned that the defendant had instructed one or more of its contractors not to obtain City permits or inspection for South Shore Harbor. In June 1988, the former president of defendant's board notified the City that it challenged the City's jurisdiction and police power to enforce its land use and zoning laws and other laws relative to construction on defendant's property and South Shore Harbor in particular.

In May, 1990 the city's inspector from the Department of Safety and Permits attempted to inspect certain premises at South Shore Harbor as part of an investigation into an application for a City alcohol and beverage permit. However, the defendant's police ordered the city inspector to leave the defendant's property.

The City subsequently initiated this litigation seeking a judgment and order declaring 1) that defendant's construction and development of South Shore Harbor Marina is illegal and violates the City's Comprehensive Zoning Ordinance and other City building and safety codes and ordinances; 2) that by proceeding with such development, the Levee Board is usurping the City's Home Rule Charter authority to enforce its police power within its jurisdictional limits; and 3) that the defendant is required to comply with the Comprehensive Zoning Ordinance for the City of New Orleans as well as with other City building and safety codes and ordinances that pertain to the planning, development, construction, expansion, and/or building on defendant's properties that are or will be used for profit-making, proprietary, permissive, or non-governmental activities. The City sought a preliminary and permanent injunction enjoining the defendants from continuing with any on-going construction and from commencing any new construction at the marina.

The Board of Commissioners of the Orleans Levee District excepted to the City's petition on the ground that the zoning ordinances of the City do not apply to governmental functions and institutions of the State of Louisiana. In response to this argument, the City of New Orleans argued that pursuant to Article II, section 2-101 of the City's Home Rule Charter, the City is invested with the authority to adopt and enforce local police and similar regulations necessary or proper for the legitimate exercise of its corporate powers and municipal function. Further, the City argued that since the Levee Board was nothing more than a "mere legislative creation", it could not ignore the police power of the City to regulate land use and zoning within its territory.

The City also argued that the defendant is engaged in profit-making, permissive and non-governmental activities that require it to submit to the police power and jurisdiction of the City of New Orleans, and to comply with all City land use and zoning laws, the City's Building Code, other safety codes, and all other pertinent laws relative to construction and development at South Shore Harbor.

The trial court sustained the defendant's peremptory exception of no cause of action and dismissed the City's action.

DISCUSSION AND LAW

The first issue to be decided by this court is whether the provisions of the City's Home Rule Charter empower the City to require the defendants to comply with the City's zoning regulations in the construction and development of the marina.

The issue of state ownership of the marina is not seriously disputed by any of the parties. The marina is located on property within the territorial limits of the Lake Pontchartrain Development Project. The state formerly held all rights to the bed and shores of Lake Pontchartrain. Pursuant to the provisions of La.R.S. 38:307 and 336, formerly Art. 16 Sec. 7 La. Const. of 1921 all rights formerly held by the state to this property have now been vested in the Levee Board. By virtue of the state land grants and various constitutional provisions, the Board had been imbued with jurisdiction and power to develop property within this area.

The City maintains that this delegation of authority to the Levee Board to develop the property is subject to the City's zoning power because the City's status as a Home Rule Charter government pursuant to the provisions of Article VI of the Louisiana Constitution of 1974 gives the City powers that are superior to the powers of the Levee Board. However, the Levee Board contends that it is a state agency performing a state function. As such, it is merely the alter ego of the State. Thus, the City cannot utilize its authorities under its Home Rule Charter to interfere with or regulate the development of the South Shore Marina by the Levee Board.

The City relies upon Francis v. Morial, 455 So.2d 1168, 1171 (La.1984) for the proposition that "... a home rule charter government possesses, in affairs of local concern, powers which within its jurisdiction are as broad as that of the State, except when limited by the constitution, laws permitted by the constitution, or its own home rule charter". As a governmental entity operating under a home rule charter, it is true that the City possesses superior powers in "affairs of local concern."

Nevertheless, the City's reliance on Francis v. Morial, supra, is misplaced. That case involved an attempt by the Legislature to alter the procedure for selecting members of the aviation board. The court was faced with a situation where the City owned and operated an airport located in another city. The City's Home rule charter specifically established an aviation board consisting of five members to be appointed by the Mayor with the approval of the City Council. The legislature passed an act purporting to expand the board and to require that two members of the board must either reside or have businesses in two parishes outside of New Orleans. The court correctly invalidated the legislation as an unwarranted interference in the internal affairs of the City. In doing so the court primarily relied upon the provisions of Article VI, Section 6 of the Louisiana Constitution of 1974 which specifically prohibits the Legislature from enacting laws which change or affect the structure and organization or distribution of powers of a local governmental subdivision operating under a home rule charter.

This case differs from Francis v. Morial, supra, in that the laws giving the Levee Board authority to develop property within the Lake Ponchatrain Development area do not alter or materially affect any powers of the City to regulate its local affairs. These laws simply designate the Levee Board as the agency to administer the property upon which the marina is being constructed. The property in question, unlike the property in Francis v. Morial, supra, is not owned or operated by the city. On the contrary, this property was formerly owned directly by the state and has always been regulated by the state. Thus, the development of this property, unlike the management of the city-owned airport, is not a matter that can be considered a purely local affair of the City of New Orleans. Rather, the development of the marina is basically...