Maher v. City of New Orleans

• Decision Date: 21 February 1974
• Docket Number: Civ. A. No. 71-119.
• Citation: 371 F. Supp. 653
• Parties: Morris G. MAHER v. The CITY OF NEW ORLEANS et al.
• Court: U.S. District Court — Eastern District of Louisiana

371 F. Supp. 653

Morris G. MAHER v. The CITY OF NEW ORLEANS et al.

Civ. A. No. 71-119.

United States District Court, E. D. Louisiana.

February 21, 1974.

Walter M. Barnett, Harold B. Carter, Jr., Montgomery, Barnett, Brown & Read, New Orleans, La., for plaintiff.

Blake Arata, City Atty., Carl H. Vesy, Asst. City Atty., New Orleans, La., for defendants.

Jacob H. Morrison, New Orleans, La., for intervenors Vieux Carré Property Owners and Associates, Inc., French Quarter Residents Association, Louisiana Landmarks Society, and Crescent Council of Civic Ass'ns.

HEEBE, Chief Judge:

The original plaintiff in this action, Morris G. Maher, was the owner of properties located at 810 and 818-822 Dumaine Street in the Vieux Carré, or French Quarter, section of New Orleans. All property in the Vieux Carré, apart from a few specific exceptions, is subject to the provisions of the Vieux Carré ordinance passed by the City Council pursuant to a grant of authority contained in Art. XIV, Sec. 22A of the Louisiana Constitution. The ordinance creates the Vieux Carré Commission, a nine-member body charged with "the preservation of such buildings in the Vieux Carré section of the city, as in the opinion of the Commission, shall have architectural and historical value and which should be preserved for the benefit of the people of the city and state." Code of the City of New Orleans § 65-6. The duties of the Commission include the review of detailed plans for any construction, demolition or alteration work done in the French Quarter. The ordinance also provides in part:

"Section 65-8. Submission of plans for exterior changes to Commission.

"Before the commencement of any work in the erection of any new building or in the alteration or addition to, or painting or repainting or demolishing of any existing building, any portion of which is to front on any public street or alley in the Vieux Carré Section, application by the owner for a permit therefor shall be made to the Vieux Carré Commission, accompanied by the full plans and specifications thereof so far as they relate to the proposed appearance, color, texture of materials and architectural design of the exterior, including the front, sides, rear and roof of such building, alteration or addition or of any out building, party wall, courtyard, fence or other dependency thereof. (C.C.S., Ord. No. 14,538, § 3; C.C.S., Ord. No. 15,085, § 1.)

"Section 65-9. Commission recommendations and action thereon.

"The Vieux Carré Commission shall upon due consideration report thereon promptly its recommendations, including such changes, if any, as in its judgment are reasonably necessary to comply with the requirements of this chapter, by sending them, in writing, to the Director of the Department of Safety and Permits with the application and documents referred to in this article and, if they are found by the Director to comply reasonably with the requirements of this article and if such application and intended work shall conform also to all other regulations, ordinances and laws of the city, the Director shall issue promptly a permit for such work and indicate on such permit the extent and nature of the work to be performed thereunder. (C.C.S., Ord. No. 14,538, § 3; C.C.S., Ord. No. 15,085, § 1.)

"Section 65-10. When Director to submit question to Council; action of Council.

"If the applicant for a permit shall refuse to accede to reasonable changes recommended by the Vieux Carré Commission, if the Commission shall disapprove any application or if the Director of the Department of Safety and Permits finds that the recommendations of the Commission do not comply reasonably with the requirements of this article, the Director shall within not later than five days, forward such matters with his written comments to the Council for such action as in its judgment, after notice and affording an opportunity to the applicant and to the Commission and other protesting parties to be heard, shall effect reasonable compliance with such recommendations and this article. (C.C.S., Ord. No. 14,538, § 3; C.C.S., Ord. No. 15,085, § 1.)"

Mr. Maher, until his recent death, resided at 810 Dumaine. The property at 818-820 Dumaine, a Victorian cottage next door to the residence, is the subject of over ten years of arduous and determined legal struggle.

In March of 1963, Mr. Maher applied to the Vieux Carré Commission for authority to demolish the cottage and replace it with an addition to his home. The addition would have included seven rent-producing apartments.

Although the Architectural Committee of the Commission had approved the construction plans, the Vieux Carré Commission disapproved the application to demolish on April 16, 1963. A number of property owners, the Vieux Carré Property Owners and Associates, Inc., the French Quarter Residents Association and the Louisiana Council for the Vieux Carré had strenuously opposed demolition.

On June 18, 1963, after considering a letter from Mr. Maher's architect, the Commission voted to obtain a report from the Vieux Carré Survey Advisory Committee. The Committee was in the process of making an architectural analysis of the entire French Quarter through the use of a survey conducted by the Schleider Foundation in connection with Tulane University. That report classified the cottage as "worthy of preservation as part of the scene."

On September 17, 1963, the Vieux Carré Commission again disapproved of the application to demolish.

On October 31, 1963, Mr. Maher again applied to the Commission. On December 17, 1963, the Commission, meeting in a closed session, overruled its two previous decisions and granted the application to demonish.

On February 13, 1964, a group of property owners, acting under the name of the Vieux Carré Property Owners and Associates, Inc., appealed the decision of the Vieux Carré Commission to the City Council. The Council, after a hearing, resolved that the cottage had architectural or historical value, overruled the decision of the Commission and ordered the Director of the Department of Safety and Permits of the City of New Orleans not to issue a demolition permit to Mr. Maher.

On July 23, 1964, Mr. Maher filed suit in Civil District Court for Orleans Parish asking that the decision of the City Council be held null and void. At this time, it was agreed by all parties to the suit that the action of the Council was indeed void since the Council had considered the matter before Mr. Maher had requested a permit from the City Department of Safety and Permits to demolish the cottage. Mr. Maher applied to the Department for his permit but was refused. He then appealed to the City Council for a reversal of the action of the Department.

On August 16, 1966, after a hearing, the Council reaffirmed its previous ruling and overruled the Vieux Carré Commission's grant of the demolition permit.

The suit in Civil District Court was resumed, and on December 7, 1967, was tried. On February 26, 1968, Judge Garvey, without written reasons, rendered judgment "as prayed" in favor of the plaintiff.

On appeal, the Louisiana Court of Appeal for the Fourth Circuit reversed the trial court and dismissed the suit. The court, in an opinion reported at 222 So. 2d 608 (La.App.1969), held that the action of the City Council was proper and that the Vieux Carré Ordinance was constitutional both on its face and as applied in Mr. Maher's case.

Mr. Maher applied to the Louisiana Supreme Court for writs of review. These were granted, and the court affirmed the judgment of the court of appeal denying the demolition permit. In its opinion, the court held that the actions of the City Council were proper under Louisiana law but declined to consider any attack on the constitutionality of the ordinance since "no plea attacking its constitutionality for any reason was filed in the district court. * * * Consequently constitutional issues cannot be considered by us now." Maher v. City of New Orleans, 256 La. 131, 235 So.2d 402, 405 (1970). In a footnote, the court observed that

"Apparently without realizing that the constitutional issue had not pleaded (sic) in the trial court the Court of Appeal did pass on the constitutional question set out in assignment of error "B" and held that our decision (sic) in City of New Orleans v. Pergament, 198 La. 852, 5 So.2d 129 and City of New Orleans v. Levy, 223 La. 14, 64 So.2d 798 in which we maintained the validity of the ordinance had set at rest the question of whether or not the ordinance was subject to attack because it was too vague and indefinite. We are inclined to agree." 235 So.2d at 405, fn. 3.

In passing, the court noted that it was completely satisfied that "the Maher cottage composed part of the elusive `toutensemble' of the Vieux Carré as described by this Court . . . and that it does have architectural value."

On January 14, 1971, Mr. Maher filed suit in this court seeking a declaration of the unconstitutionality of the Vieux Carré ordinance and an injunction against its enforcement. He, and now his estate, have challenged the constitutionality of the ordinance, both on its face and as applied.

The threshold legal issue in this case concerns the effect of the labyrinthine history of the dispute on the present federal suit. Defendants claim that the suit is barred by the law of res judicata and/or judicial or collateral estoppel. They rely on the proposition that a final judgment of a court having jurisdiction over the parties and the subject matter puts an end, not only to every plea or defense made, but to every plea or defense which either of the parties might have raised.

This view undoubtedly expresses a common law maxim but the law of Louisiana, in this area as in others, has grown from roots foreign to the common law heritage of her sister states.

Res judicata in Louisiana law is founded on Article 2286 of the Louisiana Civil Code of 1870, which is a literal translation of Article 1351 of the French ...