Summerell v. Phillips
Decision Date | 09 May 1970 |
Docket Number | No. 7903,7903 |
Citation | 238 So.2d 786 |
Parties | Lester J. SUMMERELL v. James W. PHILLIPS et al. |
Court | Court of Appeal of Louisiana — District of US |
Leon Gary, Jr., Baton Rouge, for appellant .
Joseph F. Keogh, Parish Attorney, Baton Rouge, for appellees.
M. Aubrey McCleary, Jr., of McCollister, Belcher, McCleary & Fazio, Baton Rouge, for intervenor.
Before LANDRY, SARTAIN, and ELLIS, JJ.
Plaintiff Lester J. Summerell purchased a piece of property in October, 1967, with the intention of constructing thereon a trailer park. At the time he acquired the property, it was located in an area zoned Rural and there existed no ordinances or laws prohibiting the establishment of a trailer park in that location. Plaintiff engaged an engineer to prepare plans and specifications for the construction of a trailer park on his property, and on May 20, 1968, made formal application to the City- -Parish Permit Department for a building permit.
The permit was denied on the basis of a resolution, No. 7666 adopted by the City-Parish Council of East Baton Rouge Parish on April 24, 1968, which directed the defendant, the building official of East Baton Rouge Parish, to issue no permits for trailer parks pending further instruction of the Council. It is admitted that had it not been for the existence of the resolution, the permit would have been issued routinely.
On July 30, 1968, the petition herein asking for a writ of mandamus to compel the issuance of the building permit by defendant was filed. Various exceptions and an answer were filed on behalf of the defendant and following trial on the merits, the matter was taken under advisement by the trial court. On September 24, 1968, for written reasons, the district court rendered judgment in favor of plaintiff, overruling the various exceptions and issuing the writ of mandamus prayed for herein. The judgment was signed on that same day.
On September 25, 1968, the City-Parish Council of East Baton Rouge Parish adopted Ordinance No. 2876, which had the effect of forbidding the issuance of a permit for a trailer park in a rural district unless a special 'T' district is created by amendment of the zoning ordinance by the City-Parish Council. On September 26, 1968, within the delay provided by law, an application for a new trial was filed on behalf of James W. Phillips. The new trial was granted and after a hearing, the court, for written reasons, rendered judgment in favor of defendant and against the plaintiff, dismissing plaintiff's suit at his cost. Plaintiff has appealed.
Ordinance 2876 reads, in part, as follows:
'2.213 T Trailer Park or Mobile Home District
'(1) Individual trailer sites may be leased or rented but not subdivided or sold.
'(2) A minimum site of 3 acres would be required with a minimum frontage of 200 feet, on a publicly maintained street or road.
'(3) Maximum density would be 12 trailer sites per acre.
'(4) Minimum improvement requirements for private drives within the trailer park would be 23 back to back of curb in a 35 width between building lines with underground storm drainage and pavement construction of at least 6 soil cement base and 1 1/2 of asphaltic concrete surface.
'(5) Where only one drive is to be provided, each trailer park shall include an adequate circular turnaround at the rear of the property with a minimum radius of 30 for garbage trucks and other vehicles.
'(6) Minimum lot size would be 30 foot front by 75 foot depth.
'(7) Each trailer site would have two two-foot wide concrete runners 6 thick for the trailer location and a 4 thick 10 26 concrete parking pad, to be measured from the back of curb at the front of the site.
'(8) If garbage hoppers are to be provided then 2 shall be provided for each 20 trailer sites with the same type and specifications as apartment developments.
'(9) Each trailer site shall be provided with a sanitary sewer connection and each trailer park shall be provided with a collection and treatment system and public water supply in compliance with the standards of the Parish Health Unit and the State Health Department.
'(10) There may be established a separate or optional area for overnight campers which area shall be provided with central public facilities.
'(11) Where T Trailer Park or Mobile Home Districts are established adjacent to residential districts, a fence at least 5 high and 90% Solid shall be provided along side and rear property lines.'
The remainder of the ordinance contains amendments to various sections of the zoning law to make them consistent with the creation of the 'T' district. It contains no guidelines or criteria to be followed by the council in the creation of a 'T' district beyond those set forth above.
In the case of State ex rel. Dickson v. Harrison, 161 La. 218, 108 So. 421 (1926), we find the following language:
'In State v. Carter, 159 La. 121, 105 So. 247, we said:
An examination of Ordinance 2876, in the light of the above holding, reveals it to be clearly unconstitutional. The Council would create a 'T' district at the request of one individual, and refuse it for another similarly situated. In order to meet the test of constitutionality, a zoning ordinance must set forth sufficient guidelines and criteria to insure that all those similarly situated will be treated alike.
Defendant argues that we may not consider the constitutionality of the above ordinance, since the question was not raised in the lower court. The authorities relied on by...
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Summerell v. Phillips
...the parish trailer park ordinance unconstitutional, the Court of Appeal granted the mandamus and ordered the issuance of a permit. 238 So.2d 786. Under the authority of Bradford v. Department of Hospitals, 255 La. 888, 233 So.2d 553 (1970), we granted certiorari as a matter of right. 256 La......
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Orleans Parish School Bd. v. Williams
...by that body. Aside from declaring Act 67 of 1962 unconstitutional without a special plea of unconstitutionality, Summerell v. Phillips, 238 So.2d 786 (La.App.1970), reversed 258 La. 587, 247 So.2d 542 (1971), I cannot agree with the Court of Appeal opinion that Section 35 of Article III ha......
- Summerell v. Phillips
- Summerell v. Phillips