Kel-Kan Inv. Corp. v. Village of Greenwood

428 So. 2d 401, 1983 La. LEXIS 9905
CourtSupreme Court of Louisiana
DecidedFebruary 23, 1983
Docket82-C-1797
StatusPublished
Cited by14 cases

This text of 428 So. 2d 401 (Kel-Kan Inv. Corp. v. Village of Greenwood) 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
Kel-Kan Inv. Corp. v. Village of Greenwood, 428 So. 2d 401, 1983 La. LEXIS 9905 (La. 1983).

Opinion

428 So.2d 401 (1983)

KEL-KAN INVESTMENT CORP., et al.
v.
VILLAGE OF GREENWOOD, et al.

No. 82-C-1797.

Supreme Court of Louisiana.

February 23, 1983.
Rehearing Denied March 25, 1983.

James E. Bookter, Bossier City, for petitioners-applicants.

Frank S. Kennedy, Rellis P. Godfrey, Kennedy, Goodman & Donovan, Michael H. Wainwright, Adams, Fant & Wyche, Shreveport, for respondents.

CALOGERO, Justice.

This matter involves an attempt by property owners to deannex their property from a Louisiana municipality by court judgment after the governing authority of the municipality did not act favorably upon the property *402 owners petition for deannexation. Essentially both lower courts gave the plaintiffs relief.

We find that Louisiana's statutory scheme for the contraction of the corporate limits of a municipality does not provide for deannexation by court judgment. Nor does it provide for the court's ordering the governing authority to act on deannexation petitions. Nor do we find any other reason for court intervention in this deannexation dispute outside of the provisions of the legislative scheme. We therefore reverse the lower court judgment.

The description of the tracts involved and the events preceding the district court judgment ordering the deannexation of the land involved are set forth at length in the Court of Appeal opinion. Kel-Kan Investment Corp. v. Village of Greenwood, 418 So.2d 669 (La.App. 2d Cir.1982). We include here only those events which are most pertinent to the resolution of the narrow issue before us.

The land in question comprising Kelly's Truck Terminal (and including a motel, restaurant, store, chapel, camping area and truck service center) was annexed to the Village of Greenwood by petition and ordinance in 1972. In 1974 the Village enacted for the first time in its history a general levy of ad valorem taxes on the assessed properties within the corporate limits. In 1975, plaintiffs petitioned the village council (the Mayor and the Board of Aldermen) for deannexation. No action was taken on the petition. On March 23, 1976, a petition was filed in district court seeking to have the municipality's action in withholding consent concerning deannexation declared arbitrary and unreasonable. Petitioners sought judgment ordering the municipal boundaries contracted and deannexing the property from the Village of Greenwood. Answers to this petition were filed by the defendants, but nothing more happened until 1978.

In that year, a majority of the electors in the village approved an ordinance to prohibit the sale of alcoholic beverages within the corporate limits of Greenwood. The validity of the election was challenged and ultimately upheld by this Court. Devon A. Kelly, Jr. v. Village of Greenwood, 363 So.2d 887 (La.1978). The next year attorneys for the plaintiffs filed an amended supplemental petition because Devon A. Kelly, Sr. had died and the Mayor and Board of Aldermen for Greenwood had changed since 1976 when the suit seeking deannexation was originally filed. In response, the defendants filed an exception of prescription alleging that the plaintiffs were actually attacking the reasonableness of the annexation ordinance passed in 1972 and that the statutory thirty day period for challenging the ordinance under La.R.S., 33:174 had elapsed. The district court sustained the exception; the Court of Appeal reversed and remanded the case for trial. Kel-Kan Investment Corp. v. Village of Greenwood, 393 So.2d 818 (La.App. 2d Cir. 1978) (hereinafter cited as Kel-Kan I).

At the trial's conclusion, the district court ordered the deannexation of the described property of the plaintiffs. The defendant appealed and the Court of Appeal amended the judgment to order the municipality to enact an ordinance of deannexation, but after following prescribed statutory procedures, and otherwise affirmed the district court. Kel-Kan Investment Corp. v. Village of Greenwood, 418 So.2d 669 (La.App. 2d Cir.1982) (hereinafter cited as Kel-Kan II).

We granted the defendant's writ application. Kel-Kan Investment Corp. v. Village of Greenwood, 420 So.2d 977 (La.1982).

The statutory authority whereby a municipality's boundaries may be enlarged or contracted is La.R.S. 33:171 which reads as follows:

R.S. 33:171. Ordinance to enlarge or contract corporate limits.
The limits and boundaries of incorporated municipalities shall remain as established on July 31, 1946, but may be enlarged or contracted by ordinance of the governing body as hereinafter provided, the City of New Orleans excepted. *403 The legislative scheme then is that the July 31, 1946, boundaries of incorporated municipalities shall remain fixed unless an ordinance of the governing body enlarges or contracts those boundaries.

Following La.R.S. 33:171 are statutes which elaborate upon the requirements for a valid enlargement of municipal boundaries (annexation) by the governing body. By virtue of La.R.S. 33:176 these procedures apply equally to the contraction of municipal boundaries (deannexation).

La.R.S. 33:172(A) and (B) set forth the procedures required for enactment of an ordinance enlarging municipal boundaries.[1] There need to have been before passage (1) a petition presented "containing the written assent of a majority of the registered voters and a majority in number of the resident property owners as well as 25% in value of the property of the resident property owners within the area proposed to be included..." and (2) a certified valuation of the property within the area by the assessor. La.R.S. 33:172(A). A waiting period of ten days is required between the public notice of the petition's filing and the adoption of the ordinance to allow for a hearing on the matter upon written request to the governing authorities. La.R.S. 33:172(B).

After the ordinance is adopted by the governing authorities, La.R.S. 33:173 provides for a thirty day waiting period from the date of its publication before the ordinance becomes operative. La.R.S. 33:174 allows any interested citizen during that thirty day period to contest the reasonableness of the ordinance by filing suit in the district court having jurisdiction over the municipality. If the proposed extension is found to be "reasonable," the ordinance becomes effective ten days after the court judgment unless such judgment is appealed. If the proposed extension is found to be "unreasonable," the ordinance is vacated, the proposed extension denied with a similar right of appeal, and a ban on enacting a similar ordinance is in effect for a year.

La.R.S. 33:175 contains a prescriptive period of thirty days after which, if no suit is filed or if no appeal is taken within the legal delays from the district court's sustaining the ordinance, the ordinance becomes operative and cannot thereafter be challenged for any reason or cause whatsoever.

La.R.S. 33:176, referred to earlier, provides that:

[t]o contract the boundaries of a municipality the same procedure shall be followed as outlined above and the same notice must be published and the same right of appeal to the courts is granted as is provided for in the case of the enlargement of the boundaries.

La.R.S. 33:178 requires that the ordinance with complete and accurate description of the territory involved be filed with the clerk of the district court of the parish in which the municipality is located. La.R.S. 33:179 defines the rights of residents and owners of included territory and La.R.S.

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428 So. 2d 401, 1983 La. LEXIS 9905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kel-kan-inv-corp-v-village-of-greenwood-la-1983.