State ex rel. Fitzmaurice v. Clay

• Decision Date: 29 June 1945
• Docket Number: 36439.
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. FITZMAURICE v. CLAY, City Clerk, et al.

23 So.2d 177

208 La. 443

STATE ex rel. FITZMAURICE v. CLAY, City Clerk, et al.

No. 36439.

Supreme Court of Louisiana

June 29, 1945

Appeal from Twenty-Seventh Judicial District Court Parish of St. Landry; Kenneth Boagni, Judge.

Lawrence B. Sandoz, City Atty., and John W. Lewis, both of Opelousas for defendants and appellants.

Francis R. Edwards, of Baton Rouge, and W. C. Perrault, of Opelousas for relator-appellee.

HAWTHORNE Justice.

This is a mandamus proceeding in which the relator-appellee, John Fitzmaurice, sues the municipal authorities of the City of Opelousas to compel them to issue to him a building permit for the erection of a gasoline filling station on property owned by him at the corner of East Landry and Walnut streets in that city.

In his petition relator alleges that he is the sole owner of certain property situated in the City of Opelousas, and that he has applied to the clerk and the mayor and Board of Aldermen of said city for the issuance of a permit for the construction and operation of a gasoline filling station to be erected and operated upon said property, which property is situated in an unrestricted commercial area, where there are numerous gasoline filling stations and commercial establishments; that said property upon which the proposed filling station is to be constructed constitutes no part of, and does not lie within, any validly zoned area of the city, and that the said clerk and the mayor and Board of Aldermen of said city have illegally, unjustifiably, and unreasonably refused to issue the permit, despite repeated requests so to do, basing their refusal on a certain resolution in the minutes of the regular meeting of the mayor and Board of Aldermen held on September 10, 1940, in which the city clerk was authorized and directed to refuse the granting of a building permit for commercial buildings in the area in which relator's property is situated, pending final action on a petition of property owners owning real estate within said area; that the action of the mayor and Board of Aldermen constitutes a vain attempt to create a restricted building zone within the city limits of Opelousas, and that the resolution is null and void and of no effect because same was not enacted according to the provisions of Act No. 240 of 1926; that he has no adequate remedy at law, and that a mandamus is necessary to protect his rights in the premises.

Upon this petition's being filed, an alternative writ of mandamus issued, and in due time respondents, the city officials, excepted to relator's petition on the grounds '(a) That said petition does not disclose a cause of action; (b) That said petition does not disclose a right of action in the plaintiff therein.' Evidence was taken on the exception of no right of action, and thereafter the trial judge overruled the exceptions of no cause and no right of action.

Respondents then answered, admitting the filing of the building application by relator, and admitting that there is no ordinance restricting the area in which the property described is situated, but averring that legal machinery has been set in operation to restrict such area and to constitute it a residential district. They aver that relator has no vested right to the permit, and their defense it that all the proceedings taken by the Board of Aldermen in this matter were in conformity with Act No. 240 of 1926, the zoning statute, and pursuant to the police power vested in the Board, and that the issuance of the building permit requested by relator was not refused but that action thereon by the city authorities was simply deferred pending a final report by the Zoning Commission on a petition, previously filed by certain owners of property in the same area as relator's property, to have said area made a restricted residential district.

They prayed that the alternative writ of mandamus issued herein be recalled, annulled, and set aside, and that the demands of relator be rejected.

The case was then tried on the merits, and on October 8, 1941, the district court rendered judgment making the alternative writ of mandamus peremptory, and ordering and commanding the respondents to issue the permit to relator. From this judgment respondents have appealed suspensively to this court.

The record discloses the following facts: On September 10, 1940, the Board of Aldermen of the City of Opelousas, having been advised of the desire and wish of the home-owners and residents in the neighborhood of the property owned by relator, described in his petition, to create a restricted residential zone of that district, passed a motion, incorporated in the minutes, authorizing and directing the city clerk to refuse the granting of permits for commercial buildings within said area, pending final action on this contemplated petition, which petition was filed with the city on the following day, September 11, 1940.

On October 8, 1940, the Board of Aldermen of the City of Opelousas unanimously adopted a motion authorizing the appointment of a committee to be designated as a Zoning Commission, which motion sets out that it is made in compliance with the provisions of Act 240 of the Legislature of Louisiana for the year 1926. About one year after the filing of the petition by the property owners, the Zoning Commission made a preliminary report, dated September 13, 1941, recommending that the petition be granted and stating that, in conformity with the act, the Zoning Commission had called a public hearing on the matter for Friday, October 17, 1941. Thereupon, a motion was passed by the Board of Aldermen, authorizing the filing of the preliminary report and requesting that the public hearing thereon be held on September 25, 1941, in 10 days instead of 30 days as proposed by the preliminary report. Notice of this hearing was duly published in the Clarion Progress, but the record does not disclose whether or not the same was ever held.

On September 15, 1941, formal application for the issuance of a building permit for the construction of a gasoline filling station on property owned by the applicant was filed by John Fitzmaurice, relator herein, addressed to the city clerk, the mayor, and the Board of Aldermen of the City of Opelousas. On the same day, the Board of Aldermen unanimously adopted a motion deferring action on the application for this permit until after receipt of the final report of the Zoning Commission on the petition of property owners for the creation of a restricted residential district of the area in which relator's property is situated. This suit was instituted on September 17, 1941.

On October 7, 1941, the final report of the Zoning Commission on the petition of the property owners was filed with the mayor and Board of Aldermen, which report set forth that a public hearing was held on October 6, 1941, at which hearing all interested parties were invited to appear and offer such evidence or arguments as they might desire pertaining to the creation of such residential district, and that, after due consideration, the Commission recommended that the area be zoned, as per the petition of the property owners.

The record does not show that the mayor and Board of Aldermen of the City of Opelousas, pursuant to the report of the Zoning Commission, ever adopted an ordinance zoning or restricting this area, and there intervened between September 11, 1940, the date the petition was filed by the property owners, and September 13, 1941, the date of the preliminary report of the Zoning Commission, a period of one year without any action's being taken thereon, during which time building permits for commercial buildings were not issued in that area, pursuant to the resolution adopted on September 10, 1940. And, upon relator's making formal application for such a permit on September 15, 1941, a further motion was passed deferring any action on his application until after receipt of the final report of the Zoning Commission. This final report, as above stated, was filed on October 7, 1941.

It is therefore evident that 30 days did not intervene between September 13, 1941, the date the Zoning Commission ordered a public hearing, and October 6, the date said hearing was held according to the report filed the following day. Section 4 of [23 So.2d 180] Act No. 240 of 1926 prescribes certain conditions upon which municipalities may adopt zoning ordinances, among these being that the municipality shall allow a public hearing at which the citizens shall have an opportunity to be heard with reference to the proposed zoning ordinance, and that 30 days' notice of the hearing shall be published.

On the date on which judgment was rendered in this case in the lower court, the City of Opelousas, according to the record, had not adopted a zoning ordinance, and it was called to our attention in brief of counsel and in argument in this court that no zoning ordinance with reference to the area in question has been adopted by the mayor and the Board of Aldermen, which fact is undisputed by counsel for respondents, although almost five years have elapsed since the petition was filed by the property owners on September 11, 1940, and almost four years since relator made application for a building permit on September 15, 1941.

In argument before this court and in brief filed here, respondents contend that the exception of no cause of action should have been sustained, for the reason that relator 'has not affirmatively alleged that the power and province of the city authorities in the matter of issuing building permits is merely ministerial and there is no discretion vested in them whatever,' and contend that 'it is apparent from the petition itself that the relator had no 'vested right' in the application for a permit, nor does he...