City of New Orleans v. Board of Com'rs of Orleans Levee Dist.

Decision Date05 July 1994
Citation640 So.2d 237
Parties93-0690 La
CourtLouisiana Supreme Court

Kathy Lee Torregano, City Atty., Nancy E. Graham, Philip C. Ciaccio, Jr., Bruce E. Naccari, New Orleans, for applicant.

Scott W. McQuaig, McQuaig & Solomon, Gary G. Benoit, Metairie, for respondent.

Joseph William Fritz, Jr., Joseph Michael Orlesh, Gerald O'Brien Gussoni, Jr., New Orleans, amicus curiae, for Bd. of Com'rs of The Orleans Levee Dist.

[93-0690 La. 1] DENNIS, Justice. *

This controversy arose when the Orleans Levee District (OLD) began to build a marina and related developments for commercial profit on state owned land inside the City of New Orleans without complying with the municipal zoning and building ordinances. The City of New Orleans (CNO) brought this suit against the OLD for declaratory judgment and an injunction to restrain the OLD's violation of the ordinances. The OLD filed a peremptory exception of no cause of action contending that as a state agency it cannot be enjoined from using state owned property to perform a governmental function. The trial and appeals courts decided that the CNO could not enforce its zoning and building laws against the OLD, observing that a state statute enabling OLD's land development activities constituted an exercise of the state police power that superseded the CNO's constitutional home rule powers of legislation and regulation. City of New Orleans v. Board of Com'rs, 612 So.2d 318 (La.App. 4th Cir.1993). We granted certiorari to decide whether OLD's enabling acts, La.R.S. 38:307 and 336, prevent the CNO from applying and enforcing the zoning and building ordinances adopted pursuant to its home rule charter powers. La. Const. 1974 art. VI, [93-0690 La. 2] § 4. We now conclude that they do not and reverse.

The CNO's constitutionally granted home rule powers include the power to initiate and enforce local building and zoning ordinances consistent with the constitution within the city boundaries. The CNO's home rule powers also include the power of immunity from the legislature's authority to withdraw, preempt, or deny the city's power to initiate such legislation. The CNO's initiation of building and zoning ordinances to regulate the use of state land by the OLD for the purposes alleged does not constitute an abridgment of the police power of the state.

A. ALLEGATIONS OF PETITION

The purpose of an exception of no cause of action is to determine the sufficiency in law of the petition. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well pleaded facts in the petition must be accepted as true. La.Code Civ.Proc. arts. 927, 931; Owens v. Martin, 449 So.2d 448 (La.1984); Darville v. Texaco, Inc., 447 So.2d 473 (La.1984); Haskins v. Clary, 346 So.2d 193 (La.1977).

The petition of the plaintiff, the CNO, alleges that: In the early 1980's, defendant, the OLD, notified the city that it planned to develop a marina on land within the city that it had reclaimed from Lake Pontchartrain. The OLD is authorized by state law to reclaim, own, and develop certain parts of the lake bottom inside the city. CNO's zoning regulations require, however, that the developer of such a project as a marina obtain special approval as a conditional use from the city. OLD began construction of the marina in February, 1984 without obtaining such approval. OLD began construction of 26 covered boat slips in March, 1986 without applying for building permits as required by municipal building ordinances. After representing to the city that it [93-0690 La. 3] would seek special approval for the conditional marina use in order to obtain building permits for its contractors in 1986 and 1987, the OLD in June of 1988 informed CNO that it would not comply because the municipal ordinances were not legally enforceable against the state agency. OLD began further construction on the land in May, 1990 without obtaining special approval or building permits. OLD's police officers in May, 1990 ordered a city building inspector to leave the property. OLD has never applied for special approval of the conditional marina use and has repeatedly failed to apply for building permits with regard to construction. CNO is empowered by the state constitution and its preexisting charter to exercise home rule powers to adopt and apply zoning and building ordinances within the city boundaries. The land development that OLD is pursuing consists of commercial or profit-making, non-governmental activities subject to the home rule legislative and executive powers of the CNO.

B. QUESTIONS PRESENTED

The questions of law presented by the CNO's petition are:

Question 1: Whether the constitutionally granted legislative power of the home rule government of the CNO includes the power to initiate, adopt, and enforce zoning and building ordinances within the city boundaries.

Question 2: Whether the CNO, whose home rule charter was in existence when the constitution was adopted, and which therefore retained the home rule powers, functions, and duties granted by its charter when the constitution was adopted, except as inconsistent with the constitution, is constitutionally immune from the power of the legislature to withdraw, preempt, or deny the city's power to enact and enforce zoning and building ordinances within its boundaries.

[93-0690 La. 4] Question 3: Whether the CNO's application and enforcement of its zoning and building ordinances to regulate the land development activities of the OLD, a state authorized agency, within the city boundaries, abridges the police power of the state in violation of the state constitution.

C. CONCLUSIONS AND REASONING

Conceptual and Experiential Background

Local governmental autonomy or home rule is not a self-sufficient or absolute virtue. In actuality, it may exist only to the extent that the state constitution endows a local governmental entity with two interactive powers, viz., the power to initiate local legislation and the power of immunity from control by the state legislature. Clark, Judges and the Cities, 60-81 (1985). In other words, these powers, initiation and immunity, are the yin and yang that combine to produce all of the autonomy that a home rule local government may come to have. By the period of January 1973 through April 1974, when the present Louisiana Constitution and its Local Government Article were drafted, debated, and ratified, these concepts and their history were well known to home rule scholars and advocates. See e.g., VII Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, Sept. 25, 1973, statements of Delegate Lanier at 1395-96 (1977) [hereinafter cited as Records]; Id. Statements of Delegate Stagg, at 1400; Id. Sept. 21 at 1363-64.

The first power, initiation, refers to a local government's ability to initiate legislation and regulation in the absence of express state legislative authorization. For example, if local governments have the power to regulate and legislate with respect to land use and zoning, then they are also able to initiate plans and designs for the formal spatial configuration of local economic activities. Clark, [93-0690 La. 5] supra, at 60-75; Sato & Van Alstyne, State and Local Govt Law, 136-43 (1977). The power of immunity, on the other hand, is essentially the power of localities to act without fear of the supervisory authority of the state government. Immunity exists to the extent that the local entity is insulated from state legislative control. See Clark, supra, at 68. For example, a certain degree of immunity would result from a constitutional provision barring the legislature from changing local ordinances except by general law or by a supermajority vote. This basic distinction between the power of initiation and the power of immunity provides an interpretive key to comprehending diverse state constitutional home rule provisions. Sands & Libonati, Local Govt Law § 4.07 (supp, 1993).

Before the turn of the century, a concept known as Dillon's rule, so named after one of its leading exponents, came to be widely recognized. Under that rule, unless the state constitution provides otherwise, local governments have no independent power of initiation or immunity; they possess only those powers granted them by the state legislature. Dillon, Municipal Corporations, §§ 230, 233, 237 (5th ed. 1911). The subsequent development of home rule may be seen as a struggle to overcome the Dillon rule with constitutional grants of powers of initiation or immunity to local governments and the growing recognition that both are necessary to any genuine degree of local autonomy.

Early constitutional amendments attempted to provide a measure of home rule by enabling localities to legislate with respect to "municipal affairs." Ohio Const. art. XVIII, § 3 (adopted 1912) ("all powers of local self-government"); Cal. Const. art. XI, § 6 (adopted 1896) ("municipal affairs"); Wis. Const. art. XI, § 3 (adopted 1924) ("local affairs and government"). These constitutional provisions granted both the power of initiation in regard to "local affairs" and the power of immunity from state regulation in this sphere. [93-0690 La. 6] Court decisions interpreting this type of state-local test were inconsistent, however, and generally reflected either hostility toward home rule or undue deference to legislative intervention. Bishop v. San Jose, 1 Cal.3d 56, 81 Cal.Rptr. 465, 460 P.2d 137 (1969); County Securities Inc. v. Seacord, 278 N.Y. 34, 15 N.E.2d 179 (1938); Van Gilder v. City of Madison, 222 Wis. 58, 267 N.W. 25 (1936); Sato & Van Alstyne, supra, at 147-51; Vanlandingham, Municipal Home Rule in the United States, 10 Wm. & Mary L.Rev. 269 (1968). The degree of local autonomy that home rule advocates believed they had gained through...

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