AMERICAN WASTE AND POLLUTION CONTROL CO v. St. Martin Parish Police Jury

609 So. 2d 201, 1992 WL 355143
CourtSupreme Court of Louisiana
DecidedDecember 1, 1992
Docket92-CA-1433
StatusPublished
Cited by12 cases

This text of 609 So. 2d 201 (AMERICAN WASTE AND POLLUTION CONTROL CO v. St. Martin Parish Police Jury) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
AMERICAN WASTE AND POLLUTION CONTROL CO v. St. Martin Parish Police Jury, 609 So. 2d 201, 1992 WL 355143 (La. 1992).

Opinion

609 So.2d 201 (1992)

AMERICAN WASTE AND POLLUTION CONTROL CO.
v.
ST. MARTIN PARISH POLICE JURY and the Parish of St. Martin.

No. 92-CA-1433.

Supreme Court of Louisiana.

November 30, 1992.
Dissenting Opinion December 1, 1992.

*202 Bernard E. Boudreaux, Jr., Dist. Atty., Randall P. Serrett, John P. Haney, Asst. Dist. Attys., for applicant.

Michael G. Durand, Virgil E. Wilson, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, for respondents.

Dissenting Opinion of Justice Dennis December 1, 1992.

HALL, Justice.

This is a suit for a declaratory judgment on the constitutionality of certain parish ordinances. The primary issue presented is whether the St. Martin Parish Police Jury has the authority, constitutional or legislative, to zone or restrict land use. The district court found the parish lacked the authority to do so and thus found a zoning ordinance and a siting ordinance enacted by the parish unconstitutional. We affirm.

I.

In February 1988, American Waste Pollution Control Company ("American") initiated procedures with the Louisiana Department of Environmental Quality ("DEQ") to secure a permit to construct a solid waste disposal facility on property located in St. Martin Parish.[1] In December 1988, the St. Martin Parish Police Jury enacted a string of land use and zoning ordinances. Thereafter, the police jury rescinded all but two of the ordinances; those two ordinances are the subject of this appeal. The first, adopted on December 6, 1988, is a zoning ordinance setting forth a comprehensive parish-wide land use plan. The other, adopted on December 20, 1988, is a siting ordinance setting forth requirements for the initial siting of solid waste landfills in St. Martin Parish.

In January 1989, American commenced this action seeking declaratory and injunctive relief, claiming that the zoning and siting ordinances are unconstitutional as St. Martin Parish lacked the authority to pass them. In March 1990, American filed a motion for summary judgment, which the district court granted. The district court reasoned that these ordinances are "unconstitutional as the St. Martin Parish Police Jury does not have legislative or constitutional authority to zone or restrict land use." Judgment was signed on April 19, 1991.

The parish filed this direct appeal pursuant to La. Const. of 1974, Art. V, § 5(D)(1).

II.

Under the 1974 Louisiana Constitution, two forms of local government subdivisions are recognized: (1) home rule charter, and (2) non-home rule charter. La. Const. of 1974, Art. 6, §§ 5(E) and 7(A). A home rule charter political subdivision is afforded much autonomy; it is authorized to exercise any powers "not denied by general law or inconsistent with this constitution." La. Const. of 1974, Art. 6, § 5(E); Francis v. Morial, 455 So.2d 1168, 1171 (La.1984) (noting that home rule charter government possesses powers in local affairs within its jurisdiction as broad as that of the state, except when limited by the constitution); See Kean, Local Government and Home Rule, 21 Loy.L.Rev. 63 (1975).

*203 In stark contrast, a non-home rule charter political subdivision is afforded little autonomy; it is authorized only to exercise those powers "not denied by its charter or by general law, if a majority of the electors voting in an election held for that purpose vote in favor of the proposition that the governing authority may exercise such general powers. Otherwise, the local governmental subdivision shall have the powers authorized by this constitution or by law." La. Const. of 1974, Art. 6, § 7(A). Translated, this means that absent voter approval, a non-home rule charter political subdivision, such as St. Martin Parish, can exercise only those powers expressly granted by the constitution or by the legislature. See Stetter, Louisiana Environmental Handbook, Sec. 3.4 (1991).

We have recognized a parish government's limited legislative powers, noting that "[a] police jury in this State is a creature and subordinate political subdivision of the State and as such only possesses those powers conferred by the State's Constitution and statutes." Rollins Environmental Services of Louisiana, Inc. v. Iberville Parish Police Jury, 371 So.2d 1127, 1131 (La.1979). However, as aptly pointed out by Justice Tate in his concurrence in Rollins, supra, this statement regarding the limited powers of police juries only applies when a police jury and local governmental authority has not adopted a home rule charter or by vote of the electorate been empowered to exercise all powers not denied by statute or the constitution. Rollins, supra, 371 So.2d at 1134-35. Nonetheless, as St. Martin Parish has no home rule charter, nor has it by vote of the electorate been empowered to exercise powers not denied by state law, its powers are limited to those conferred by the constitution or by the legislature.

With these precepts of local government authority in mind, we turn to the issue before us of whether the St. Martin Police Jury was authorized by the constitution or by the legislature to adopt the zoning and land use (siting) ordinances at issue.

The Police Jury's constitutional authority, if any, to enact such ordinances must stem from La. Const. of 1974, Art. 6, § 17, which provides:

Subject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning, and historic preservation, which authority is declared to be a public purpose; (2) create commissions and districts to implement those regulations; (3) review decisions of any such commission; and (4) adopt standards for use, construction, demolition, and modification of areas and structures. Existing constitutional authority for historic preservation commissions is retained. (emphasis supplied).

The underscored language is the crux of this case. American contends, as held by the district court, that this language means that unless and until the legislature enacts uniform procedures, parishes lack the authority to enact land use and zoning ordinances. Conversely, St. Martin Parish contends that it simply means that if the legislature adopts uniform procedures, then parishes must follow them in enacting such ordinances, which parishes are authorized to do by this provision.

Construing La. Const. of 1974, Art. 6, § 17 in conjunction with the limited powers granted to parishes as non-home rule charter local governmental subdivisions, we find, as did the district court, that this provision is not an unqualified grant of zoning authority. This interpretation is consistent with the views voiced by the delegates to the Louisiana Constitutional Convention prior to adopting this provision. Particularly, the delegates voiced concern that unbridled power—a "blank check"— not be granted to local governmental units, but rather that there should be uniform procedures for the exercise of these powers. Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, Vol. VII, 58th Days Proceedings, October 2, 1973, pp. 1536-49.

While the legislature has enacted such uniform procedures for municipalities, LSA-R.S. 33:4721, et seq., no such enabling *204 legislation or uniform procedures have been enacted for parishes, generally. A perusal of the Revised Statutes, however, reveals that the Legislature has extended zoning authority to certain parishes. For instance, LSA-R.S.

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Bluebook (online)
609 So. 2d 201, 1992 WL 355143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-waste-and-pollution-control-co-v-st-martin-parish-police-jury-la-1992.