Jefferson Parish v. Universal Fleeting Co.

• Decision Date: 06 April 1970
• Docket Number: No. 3867,3867
• Citation: 234 So.2d 88
• Parties: PARISH OF JEFFERSON v. UNIVERSAL FLEETING COMPANY, Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 88

234 So.2d 88

PARISH OF JEFFERSON v. UNIVERSAL FLEETING COMPANY, Inc.

No. 3867.

Court of Appeal of Louisiana, Fourth Circuit.

April 6, 1970.

Rehearing Denied May 4, 1970.

Lee C. Grevemberg, Edmond G. Miranne, New Orleans, for Universal Fleeting Co Inc. (Universal Fleeting, Inc. as Successor Corp.), and George Maynard, defendants-appellees.

Campoy, Hurley & Senter, Alvin W. Lacoste, New Orleans, amicus curiae.

Robert H. Fray, Gretna, for Parish of Jefferson.

Clifton S. Carl, New Orleans, for Riverside Homeowners Civic Ass'n .

CHASEZ, BARNETTE and LeSUEUR, JJ.

CHASEZ, Judge.

This case involves the use to which batture land might be put, which batture land is located in Jefferson Parish between the upper limits of the Town of Harahan and the lower limits of the City of Kenner.

In 1958 the Parish of Jefferson enacted a comprehensive zoning ordinance and the area involved, that is, the batture, was zoned R-1, single family residential. Under this zoning ordinance only residential uses could be made of the batture.

A company known as Universal Fleeting Company, Inc. leased the property from the then owner, Calco, Inc., for the purpose of mooring barges. The barges are moored to lines leading from concrete caissons called 'deadmen' which are sunk into the batture. No loading or unloading of barges was done nor were any repairs made to any barge. The operation was compared to a switchyard of a railroad company. The barges were moored while waiting to be taken to a point where they could be loaded or unloaded or repaired, as the case might be.

On June 9, 1966, the Parish of Jefferson filed an injunction suit seeking to enjoin the commercial use of the batture based on the reason that the fleeting operation was in violation of the comprehensive zoning ordinance.

Universal Fleeting Co. Inc. filed exceptions of no cause or right of action. Calco, Inc., the lessor of Universal Fleeting Co., Inc., intervened on the side of its lessee.

The rule for preliminary injunction was not heard on its return. The exceptions were argued on November 2, 1966 and were referred to the merits.

When a pre-trial conference was called in February, 1968 it became known that Calco, Inc. had sold its land and Universal Fleeting Company, Inc. was no longer present. Calco, Inc. had sold its interest to George Maynard who had leased to a different company, i.e., Universal Fleeting, Inc., a Delaware Corporation, and the fleeting operation had begun again.

On April 8, 1968 the plaintiff-appellant, Parish of Jefferson, filed a supplemental and amending petition naming George Maynard and Universal Fleeting, Inc. as defendants and prayed that they be enjoined from using the batture for a commercial operation on the grounds that it again violated the zoning ordinance and was also a public nuisance.

On May 31, 1968, Riverside Homeowner Civic Association intervened joining the cause set forth by the Parish of Jefferson.

Defendants-appellees, George Maynard and Universal Fleeting, Inc. excepted to the constitutionality of the zoning ordinance and filed exceptions of no cause or right of action and also answered the petition denying that there was any nuisance.

Judgment was rendered on March 5, 1969, dismissing the injunction suit and intervention entirely. From this judgment plaintiff-appellant, Parish of Jefferson, and intervenor Riverside Homeowners Civic Association, entered this devolutive appeal.

Appellants have assigned as error the following:

'1. The owner court erred in dismissing the entire suit after trial of a rule for preliminary injunction.

'2. The lower court erred in holding that the Parish Council was arbitrary, unreasonable and discriminatory when it zoned undeveloped batture land in conformity with the tracts across the levee.

'3. The lower court erred in applying standards of 'best use' in evaluating the reasonableness of the Zoning ordinance.'

We find no merit in appellants' argument that the trial court erred in dismissing the entire suit after trial of a rule for preliminary injunction.

Although the general rule is that the entire suit may not be dismissed on a hearing of an application for preliminary injunction, Pizzitola v. Pace, La.App. 161 So.2d 441 (4th Cir. 1964); Baton Rouge Cigarette Service, Inc. v. Bloomenstiel, La.App., 88 So.2d 742 (1st Cir. 1956); this is not the precise situation in this case. In the present case the petition of plaintiff was filed asking for a preliminary injunction. The defendants filed exceptions of no cause or right of action directed toward the entire proceedings. The defendants also excepted to the constitutionality of the zoning ordinance.

On the day set for the hearing of the preliminary injunction the exceptions were also heard having been argued to the court prior to the submission of any evidence on the preliminary injunction. The exception of unconstitutionality was overruled. One of the exceptions of no cause or right of action was based on the assertion that the fleeting operation was a public utility and therefore fell within the permissive uses under R-1 zoning. The other exception was that in light of accepted uses of batture, the zoning ordinance was arbitrary and discriminatory. Both of these latter exceptions were referred to the merits.

These latter exceptions must be considered as exceptions of no right of action because they concede the validity of the enactment of the ordinance and question only its application. The question of whether the fleeting operation was a public utility within the permitted use under the ordinance and whether the ordinance was arbitrary and discriminatory are questions of fact and were properly referred to the merits.

The court may hear an application for a preliminary injunction by taking proof as in any ordinary case. LSA-C.C.P. art. 3609. In this case the hearing lasted five days and resulted in a record of 800 pages of testimony from a total of 48 witnesses.

After hearing all the evidence of witnesses presented by plaintiffs and defendants, the court a quo found the zoning ordinance was unreasonable, arbitrary and discriminatory and could not be enforced.

It is obvious from reading the trial judge's reasons for judgment that his judgment, (without so stating in specific words,) maintained the defendants' peremptory exception of no right of action, and did not merely deny the preliminary injunction. We, therefore, reject appellants' argument that this was only a hearing for a preliminary injunction and that a dismissal of their entire suit was improper.

The second error assigned by appellants is that the trial court erred in holding that the Parish Council was arbitrary, unreasonable, and discriminatory when it zoned undeveloped batture land in conformity with the tracts across the levee.

The trial judge held that the batture in question was subject to the zoning laws provided there was no conflict with the servitudes in favor of the Pontchartrain Levee District and the Board of Commissioners of the Port of New Orleans (the Dock Board). The court went on to hold that the ordinance as applied to this batture is unreasonable, arbitrary and discriminatory because none of the permitted uses under the R-1 classification are feasible in view of the regular inundation of the batture and the regulations of the Pontchartrain Levee District and, further, that according to the testimony of Mr. Hugh Ford of the Jefferson Planning Department only one-sixth (1/6th) of the batture in the entire parish was zoned R-1 and that the best use of the batture is industrial use.

We are in complete agreement with the court a quo that the zoning was unreasonable, arbitrary and discriminatory. However, we find that the zoning...