Varnado v. Southern University at New Orleans

• Citation: 621 So.2d 176
• Decision Date: 30 June 1993
• Docket Number: No. 92-CA-2798,92-CA-2798
• Parties: 84 Ed. Law Rep. 868 Jane VARNADO v. SOUTHERN UNIVERSITY AT NEW ORLEANS.
• Court: Court of Appeal of Louisiana (US)

Page 176

621 So.2d 176

84 Ed. Law Rep. 868

Jane VARNADO v. SOUTHERN UNIVERSITY AT NEW ORLEANS.

No. 92-CA-2798.

Court of Appeal of Louisiana,

Fourth Circuit.

June 30, 1993.

Raymond C. Burkart, Jr., Kendra Lanata Van Dalen, New Orleans, for appellee.

Richard P. Ieyoub, Atty. Gen., Jeffery M. Lynch, Asst. Atty. Gen., New Orleans, for appellant.

Before CIACCIO and LOBRANO and LANDRIEU, JJ.

LANDRIEU, Judge.

Appellant Southern University at New Orleans ("SUNO") appeals the preliminary injunction granted in favor of the plaintiff, enjoining defendant SUNO, its students, employees and agents or third parties from parking on SUNO's lots located adjacent to plaintiff's property. Finding no error in the judgment of the trial court, we affirm.

FACTS

Southern University of New Orleans owns lots 6E and 6F in Square 34, Pontchartrain Park, bounded by Mexico Street, Campus Boulevard and Providence Place. On or about September 10, 1990, SUNO authorized and allowed its students to park their cars on these two lots. Because the two lots consisted of grassy open areas with no means of ingress or egress onto the space, SUNO students regularly used plaintiff's driveway to gain access to the lots. On several occasions, the students blocked plaintiff's driveway.

Plaintiff, Jane Varnado, owns the residential property located adjacent to lots 6E and 6F at 6216 Campus Boulevard, New Orleans. She alleged that, on at least two occasions, her wooden fence was damaged by the parking of SUNO's students. SUNO made faulty and inadequate repairs after the first incident, but failed to respond to her request for repairs after the second incident.

In order to prevent SUNO from using the two lots for parking, plaintiff filed a petition for damages and a writ of injunction. Receiving assurances from SUNO's Chancellor that barriers would be erected and the fence would be repaired, the trial judge delayed the hearing date on the rule to show cause from September 3rd to September 25, 1992. During this period, SUNO began to pave the two lots. Alleging irreparable harm and a violation of zoning ordinances of the City of New Orleans and the State of Louisiana, plaintiff filed a supplemental and amending petition requesting that SUNO be enjoined from building a paved parking lot.

Following a hearing, the trial court granted the preliminary injunction enjoining SUNO, its students, employees, and agents or third parties at their command from parking on the SUNO lots adjacent to Varnado's property. Asserting the state's police power as its authority to use the state-owned land as a parking lot, SUNO now appeals.

DISCUSSION

SUNO contends that it is not required to comply with any city zoning ordinances which attempt to regulate the use of state land. The zoning laws which plaintiff desires to enforce were enacted by the City of New Orleans pursuant to its municipal police power, a power granted by the state.

Article 5, Section 1.2 of the Comprehensive Zoning Ordinance of the City of New Orleans lists the permitted uses of buildings or land in RS.1 and RS.2 Single-Family Residential Districts. A parking lot is not a permitted use. Article 7, Section 4 requires the landowner to obtain a Conditional Use approval in accordance with Article 15 of the Ordinance before a lot may be used for parking facilities.

Local governments are given the authority to regulate land use and zoning under their home rule charters. La. Const. Art. 6, Section 17 (1974). ¹ A home rule charter government possesses, in affairs of local concern, powers which within its jurisdiction are as broad as that of the State, except when limited by the constitution, laws permitted by the constitution, or its own home rule charter. City of New Orleans v. Board of Commissioners, 612 So.2d 318, 321 (La.App. 4th Cir.1993) (citing Francis v. Morial, 455 So.2d 1168, 1171 (La.1984)). In exercising this grant of authority, however, the local government cannot abridge the state's police power. La. Const. Art. 6, Section 9(B) (1974). Since the municipal police power is subordinate to that retained by the State, municipal zoning ordinances cannot control the State's use of its property in performing a governmental function. City of New Orleans v. State, 364 So.2d 1020, 1023 (La.1978).

The oversight body for SUNO, the Board of Supervisors of Southern University and Agricultural and Mechanical College, was created as a body corporate which is a separate and distinct legal entity from the State of Louisiana. La.Rev.Stat.Ann. Sec. 17:1851(A) (West 1982); Kallenberg v....