Wes-T-Erre Development Corp. v. Terrebonne Parish, Through Police Jury of Terrebonne Parish

• Decision Date: 25 May 1982
• Docket Number: WES-T-ERRE,No. 14800,14800
• Citation: 416 So.2d 209
• Parties: DEVELOPMENT CORPORATION v. The PARISH OF TERREBONNE, Through the POLICE JURY of the PARISH OF TERREBONNE, Louisiana.
• Court: Court of Appeal of Louisiana — District of US

Page 209

416 So.2d 209

WES-T-ERRE DEVELOPMENT CORPORATION v. The PARISH OF TERREBONNE, Through the POLICE JURY of the PARISH OF TERREBONNE, Louisiana.

No. 14800.

Court of Appeal of Louisiana First Circuit.

May 25, 1982.

Rehearing Denied July 13, 1982.

Robert J. Prejeant, Houma, for plaintiff and appellant.

A. D. O'Neal, Sr., Charles Gary Blaize, Houma, for defendant and appellee.

Before LEAR, CARTER and LANIER, JJ.

CARTER, Judge:

This is a suspensive appeal by Wes-T-Erre Development Corporation (Wes-T-Erre) from a judgment denying Wes-T-Erre an injunction against the Terrebonne Parish Police Jury.

Wes-T-Erre asked for a temporary restraining order and preliminary injunction and perpetuation of a preliminary writ of injunction directed to the Parish of Terrebonne through the Police Jury of the Parish of Terrebonne, Louisiana, restraining, enjoining, and prohibiting the defendant, its agents, employees, and all of the persons, firms, or corporations acting or claiming to act on behalf of the Police Jury from blocking, destroying, or in any way interfering with the use of the driveway located on the northern portion of Gaylord Plaza Shopping Center at its intersection with Idlewild Drive. ¹ Attached to the petition was a copy of a letter from the police jury dated January 20, 1981, which stated that the jury refused to grant a permit to Wes-T-Erre to construct the driveway and that a resolution had been passed on September 24, 1980, by the police jury and in the presence of representatives of Wes-T-Erre, authorizing the Department of Public Works to resist construction of the driveway and directing the permit committee of the police jury to continue to resist granting a permit. The letter further stated that unless Wes-T-Erre removed the driveway within ten (10) days from receipt of the letter, the police jury would remove it and send the bill for removal to Wes-T-Erre. The temporary restraining order was granted and subsequently extended. Judgment was rendered denying the preliminary injunction on May 7, 1981.

FACTS

Wes-T-Erre, a wholly owned subsidiary of Grand Caillou Packing Company (Grand Caillou), bought the property on which the shopping center is located from Grand Caillou on November 3, 1972. At that time the northern boundary of the property was totally located along Idlewild Subdivision, and Idlewild Drive did not border the property. Two entrances to the shopping center were constructed on West Park Drive ² which borders the shopping center on the west.

On November 6, 1972, Wes-T-Erre sold to Grand Caillou a parcel of land known as Parcel 21-1 (land comprising the present location of Idlewild Drive). On November 9, 1972, Grand Caillou sold Parcel 21-1 to the State of Louisiana. After the sale Idlewild Drive ³ was realigned to run generally east-west and to meet the Edward Street Bridge which runs generally east-west on the west side of West Park Drive. Idlewild Drive and the shopping center are on the eastern side of West Park Drive. West Park Drive is a one-way street going north. The realignment of Idlewild Drive caused it to run along the northern border of the shopping center. Part of the relocated Idlewild Drive was constructed on Parcel 21-1, and it is at this point (where Idlewild Drive crosses Parcel 21-1) that the driveway in dispute was constructed.

In 1978, Wes-T-Erre opened a third access onto West Park Drive. This access was close to the intersection of West Park and Idlewild, and created a dangerous traffic situation because persons who wanted to enter the shopping center from the Edward Street Bridge often proceeded against traffic for a short distance to use this access. Wes-T-Erre agreed with the police jury and the State Highway Department that the access should be closed. There was a general understanding that Wes-T-Erre would then try to get property rights to establish another access off of Idlewild Drive at approximately 100 to 150 feet from the intersection of Idlewild Drive with West Park Avenue. Wes-T-Erre was not able to negotiate a purchase of land or right of way at that location. On or about September 24, 1980, Wes-T-Erre attempted to construct the driveway approximately 47 feet from the intersection of Idlewild Drive with West Park Drive.

On September 24, 1980, the Terrebonne Parish Police Jury duly passed and adopted the following resolution:

RESOLUTION

WHEREAS, Wes-T-Erre Development Corporation, a shopping center commonly known as "Gaylords Shopping Center" has applied for a permit to construct a driveway connecting said shopping center with Idlewild Drive near where said Idlewild Drive intersects Louisiana Highway 659, and

WHEREAS, there already exists a dangerous situation at the intersection of State Highway 659 and Idlewild Drive; and

WHEREAS, the citizens living on Idlewild Drive have overwhelmingly expressed opposition to the opening of said driveway onto Idlewild Drive; and

WHEREAS, the Police Jury of Terrebonne Parish is convinced that it would not be in the best interest of the citizens of Terrebonne Parish to allow the opening of the driveway as requested by Wes-T-Erre Development Corporation; and

WHEREAS, the Police Jury deems it to be dangerous and hazardous and involving the safety of the citizens of Terrebonne Parish and concurring with the opposition to allowing said driveway construction.

NOW, THEREFORE, BE IT RESOLVED that upon recommendation of legal counsel, the Terrebonne Parish Police Jury rejects the application of Wes-T-Erre Development Corporation for the construction of said driveway and directs the Terrebonne Parish Department of Public Works, as well as the Permit Committee of the Terrebonne Parish Police Jury, to deny said application and resist the installing of the proposed driveway, and that Wes-T-Erre Development Corporation restore proposed driveway to its original state.

There is nothing in the record to show that the Terrebonne Parish Police Jury ever had in effect a general ordinance regulating the construction or location of driveways or other means of access to parish roads. Further, there is nothing in the record to show that the police jury had an established procedure to apply for and obtain a permit to establish a private drive or access to parish roads.

Wes-T-Erre proceeded to construct the access over and across Parcel 21-1 (property now belonging to the State of Louisiana) connecting it with Idlewild Drive. ⁴ The driveway was completed on or about January 19, 1981, and on January 20, 1981, the police jury sent a certified letter to Mr. Lapeyre, Vice-President of Wes-T-Erre, demanding removal of the driveway. On February 3, 1981, Wes-T-Erre filed this suit for injunction.

Wes-T-Erre filed a supplemental and amending petition claiming that the police jury should be estopped from removing the driveway because of certain representations of an individual member or members of the police jury. Wes-T-Erre claimed that there was no ordinance regulating driveway construction in the parish and that the ordinance the police jury relied on, a drainage ordinance found in Section 7-20 of the Parish Code (said Section having been codified from Ordinance No. 1933, Section 5) is, in fact, not applicable to driveway construction. In the alternative, Wes-T-Erre claimed that if Section 7-20 was applicable, then Wes-T-Erre had complied with the Section.

Wes-T-Erre further claimed that the September 24, 1980 resolution was without legal effect because a resolution does not have the force and effect of law. Finally, Wes-T-Erre alleged that if the resolution and the drainage ordinance were found to be applicable, then both were unconstitutional.

The trial judge found that Wes-T-Erre was not granted a permit to construct the driveway and that the police jury acted within its police power to provide for the safety of the public. He further found that all resolutions and ordinances adopted by the police jury were in proper execution of its police power and were not arbitrary or discriminatory and therefore not unconstitutional.

The trial court found that the following statutes were passed recognizing that public safety required that there be one governing and controlling authority concerning highways and roads in the parish road system and that that authority logically is placed with the police jury.

La.R.S. 33:1236 in part provides:

The Police Juries shall have the following powers:

"(20) To pass all ordinances and regulations which they deem necessary to govern and regulate the laying out of subdivisions, re-subdivisions, roads, streets, alleys, ways, subways, viaducts, bridges, parks, parkways, boulevards, playgrounds, community centers and other public buildings, grounds, or improvements, and the location, relocation, widening, removal, vacation or extension or other improvements of such existing public works; the plating of land into lots, roads, streets, and other dedicated or private ways; the location, re-location, development, routing and re-routing of transit and transportation line, which in the opinion of the Police Jury are in the interest of the systematic planning of the parish ...."

"(28) To enact ordinances regulating the traffic on all public roads outside of incorporated municipalities and within recognized subdivision other than state constructed and maintained streets and highways, including but not by way of limitation the right to establish speed limits and speed zones, to regulate the parking of vehicles, to establish rules and regulations for the movement of traffic, including the designation of one way streets, and for such other similar rules and regulations; ..."

La.R.S. 48:481 provides as follows:

"Parish governing authorities may pass all ordinances which they think necessary relative to roads, bridges, and ditches and may impose such penalties to enforce them as they think proper."

La.R.S. 48:512 provides as follows:

"No person shall close, obstruct, or change any legal road...