Coliseum Square Ass'n v. City of New OrleansColiseum Square Ass'n v. City of New Orleans
Terry McCall, Lemle, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Frilot, New Orleans, for applicants.
Dissenting Opinion of Justice Dennis March 7, 1989.
WATSON, Justice.
This case involves the question of whether the City of New Orleans may close a block of a city street which is dedicated to public use and being used by the public, and lease it for sixty years to a private interest.
FACTS
Chestnut Street is a narrow traffic artery which runs from Felicity Street in an unbroken line to Joseph Street. At Joseph Street, it falls into an irregular pattern, but it continues past Audubon Park to Broadway. After 1829, the street was developed uptown from Felicity as part of the grid pattern in the Lower Garden District.
The 2100 block in question comprises 14,312.90 square feet and lies between Josephine Street and Jackson Avenue. It includes a bikeway and it is located in the Lower Garden District, an historic and congested area.
Trinity Church owns the property fronting both sides of the 2100 block of Chestnut Street. After Trinity Elementary School was opened twenty-eight years ago, the public street running through the Church‘s property became a hazard to crossing students. In 1972, the City authorized closure of the block with gates between 10:00 A.M. and 2:30 P.M. Despite this closure, an average of 505 cars a day use the street. Of these, 220 are school related. None of the Trinity students have been injured by the traffic.
In 1985, Trinity Church broached the idea of purchasing the street block from the City and removing it from public use. The obvious advantages were greater safety and security for the school‘s students. In addition, a larger play area was planned. At some point, a long term lease was proposed in lieu of a sale. Trinity obtained a market value appraisal of $160,300.
The Department of Streets initially opposed the closure because of the inconvenience to vehicles and pedestrians but ultimately acquiesced in the lease proposal.
The City Planning Commission held hearings to consider the effect of closing the 2100 block of Chestnut Street to allow its incorporation into the campus of Trinity School. According to several home owners and residents, the neighbors have no objection to the block being closed during school hours but object to its permanent closure. Concern was expressed about fire and ambulance access to the historic homes in the area. The Planning Commission ultimately recommended “disposing of” the block by closing it and leasing it to Trinity Church on a long term basis.
Apparently recognizing the inalienability of this public block, the City Council elected to lease it for 60 years but did so after finding that it was no longer needed for a public purpose.
The City Council of New Orleans passed Ordinance Number 11,776, which authorized the City of New Orleans to lease “certain immovable property found to be no longer needed for public purposes“, to wit, the 2100 block of Chestnut Street, to Trinity Church for 60 years. The rental of $8,040 a year is to increase by ten percent every five years but can be prepaid at a discounted rate for the full term.
Various interested parties1 filed suit to enjoin closure of the 2100 block of Chestnut Street. The trial court denied plaintiffs’ petition for a permanent injunction, concluding that the City Council was not arbitrary and capricious in finding the property no longer needed for public purposes and that the City had authority to lease the property. The court of appeal
LAW
A street which is being used as a street is a public thing.
It is a violation of good faith to the public, and to those who acquired property in reference to the plan of a city with a view to the enjoyment of the use thus publicly granted, to afterwards appropriate a street to private uses. City of Baton Rouge v. T.J. Bird, Sheriff, et al, 21 La. Ann. 244 (1869). Also see De Armas, et al. v. Mayor, etc. of New-Orleans, 5 La. 132 (1833), dismissed for lack of jurisdiction 34 U.S. (9 Pet.) 224, 9 L.Ed. 109 (1835). A public street cannot be diverted to an alternate nonpublic use. A municipal corporation has no authority to extinguish public use of public property or divest such property of its public character. Police Jury of the Parish of Plaquemines v. Foulhouze, et al, 30 La.Ann. 64 (1878).
The streets which belong to political subdivisions of the State are owned for the benefit of the public. A political subdivision owns a street subject to public use in its capacity as a public person. Such property, held as a public trust, is inalienable while it is being used by the public. City of New Orleans v. Carrollton Land Co., 131 La. 1092, 60 So. 695 (1913); City of New Orleans v. Louisiana Society, Etc., 229 La. 246, 85 So.2d 503 (1956). Only if public use terminates can a public street be susceptible of private ownership. “The inalienability of all public things, whether belonging to the state or to its political subdivisions, is guaranteed by the Civil Code.”6
The cases cited in respondent and intervenor‘s briefs do not support their position. Courts have permitted the sale of a street only when the street was not used by the public. See Caz-Perk Realty v. Police Jury of Baton Rouge, 213 La. 935, 35 So.2d 860 (1948) (overwhelming evidence showed that unnamed street was abandoned); Schernbeck v. City of New Orleans, 154 La. 676, 98 So. 84 (1923) (street had never been opened to traffic); Torrance v. Caddo Parish Police Jury, 119 So.2d 617 (La.App. 2 Cir.1960) (street was so seldom used it was overrun with brush and only passable in dry weather).
The general laws of the State dealing with the lease of public lands are applicable to the City of New Orleans. State, ex rel Cuccia v. French Market Corporation, 334 So.2d 241 (La.App. 4 Cir.1976), writ den. 337 So.2d 189. Various exceptions to the requirements for lease of public lands
CONCLUSION
A thing may be in use without being necessary in the sense of being essential or indispensable. The use necessary to preserve the public character and therefore prevent alienation must, of course, be substantial and not merely occasional or infrequent. Passage of 500 cars a day (or 300 discounting those on school business) is obviously substantial. A block which forms part of a continuous thoroughfare used by the public is a public thing and being used for a public purpose. While it is possible for the public to utilize alternative streets, this should not be required to further private interests.
The City of New Orleans and other political subdivisions can sell idle, vacant and surplus lands. However, a block of a street dedicated to public use and being used by the public is not susceptible of alienation or any other diversion to private use.9
DECREE
For the foregoing reasons, the judgments of the trial court and the court of appeal are reversed. The closure of the 2100 block of Chestnut Street as no longer needed for public purposes is not within the legal authority of the City Council of the City of New Orleans. The 2100 block of Chestnut Street is not susceptible of alienation or lease because it is dedicated to public use and is being used by the public. Moreover, with certain nonpertinent exceptions, a lease of public property cannot exceed a term of ten years.
Therefore, Ordinance Number 11,776 of the City of New Orleans, adopted April 2, 1987, is null and void and has no legal effect. The plaintiffs’ injunction is granted.
REVERSED AND RENDERED.
CALOGERO, LEMMON and DENNIS, JJ., dissent and assign reasons.
CALOGERO, Justice, dissenting.
I have serious reservations about the majority‘s determination that “a block of a street dedicated to public use and being used by the public is not susceptible of alienation....”1 Streets are public things which may belong to a political subdivision of the state.
My research has uncovered no clear answer to this problem. Whereas minerals and water bottoms are constitutionally declared inalienable (
“The closure of the 2100 block of Chestnut Street and the removal of it from public use by leasing it to Trinity School is a legislative decision involving the collective judgment of the duly elected members of the City Council. In their representive capacities they have the power and the responsibility to weigh the merits of the proposal and to resolve the conflicting interests of the parties in the best interest of the City as a whole. Absent illegality or a finding that their action was arbitrary and capricious, neither of which are present in this case, we may not substitute our judgment for their judgment.”
For these reasons, I respectfully dissent.
LEMMON, Justice, dissenting.
Immovable property owned by a municipality and used as a street is a public thing, but is not inherently insusceptible of private ownership. However, public things owned by a municipality which are needed for public use are insusceptible of private ownership as long as they are so needed. Thus, a street is insusceptible of private ownership as long as it is needed for use as a street, but becomes susceptible of private ownership after public use of the street terminates. See generally A. Yiannopoulos, 2 Louisiana Civil Law Treatise—Property §§ 33 and 34 (2d ed. 1980).
The focus in the present case should not be on whether the street was used as a public thing, but on whether it was needed as a public thing. The City made a legislative determination that it was not so needed, and the critical issue is whether that determination was arbitrary. If not, the street became susceptible of private ownership after the public use was terminated and could be leased on a long-term basis.
DENNIS, Justice, dissenting.
I respectfully dissent.
The court in today‘s decision takes a Nineteenth century view of the relationship between state and municipal governments. In doing so, the majority relegates New Orleans and other home rule governments to the class of subordinate legislative creatures and sets itself up as a superlegislature to judge the wisdom or desirability of local government policy. The court‘s opinion is in serious conflict with the universally recognized intention of the 1974 Louisiana Constitution and with this court‘s concept of the proper scope of judicial review of legislative action.
Before the present case, this court recognized that
There is no general law which prohibits a home rule city from closing a public street and leasing or selling its public property formerly dedicated to that purpose.
Ironically, as if to underscore the weakness of its position, the majority opinion relies almost exclusively upon cases decided under state constitutions in effect prior to the 1974 Louisiana Constitution. These decisions are entirely inapposite to an interpretation of a modern home rule government‘s quasi-sovereign power which cannot be denied except by general law or constitutional provisions.
Because the City‘s authority to exercise any power or function necessary for the administration of its local affairs (including the leasing of public property for private use) is deeply rooted in our constitution, statutes and jurisprudence, this Court has but one possibly legitimate role in these circumstances: to determine whether the City exercised its authority in an arbitrary or capricious manner. For example, this court has held that it is within the scope of the police power delegated to a local government to determine whether a street is no longer needed for public purposes, and that a court will not interfere with the exercise of this discretionary power unless it has been abused by acting arbitrarily:
... when the Legislature delegated to the police juries and municipal corporations of this state full power and authority over the revocation and dedication of streets ... it is necessarily within the scope of the police power thus delegated to these political bodies by the legislature to look into and determine whether the street is abandoned or is no longer needed for public purposes and it is the well settled jurisprudence that courts will not interfere with the functions of ... public bodies in the exercise of this discretion vested in them unless such bodies abuse this power by acting capriciously or arbitrarily.
Caz-Perk Realty v. Police Jury, 207 La. 796, 22 So.2d 121, 124 (1945). Furthermore, this court has consistently held that, when an ordinance of even a small village is challenged, the judiciary will not inquire into the motives, policy or wisdom of the municipal legislative body, but will confine their review to a determination of the applicability, legality or constitutionality of laws. Kel-Kan Inv. Corp. v. Village of Greenwood, 428 So.2d 401 (La.1983) and authorities cited therein.
Unless the City‘s decision regarding the 2100 block of Chestnut Street, an exercise of its duly constituted authority, is shown
ON REHEARING
MARCUS, Justice.*
We granted a rehearing to consider whether the New Orleans City Council (Council) has the legal authority to close the 2100 block of Chestnut Street and lease it to Trinity Episcopal Church (Trinity) and, if so, whether the decision of the Council, finding the property was no longer needed for public purposes, was arbitrary and capricious.
Trinity Church, a Louisiana non-profit corporation, is the owner of all of the property fronting both sides of the 2100 block of Chestnut Street between Jackson Avenue and Josephine Street in the City of New Orleans.1 The church operates Trinity School which has an enrollment of approximately four hundred students in pre-kindergarten through eighth grade. The campus is divided by Chestnut Street with the academic buildings located on one side and the playground, athletic field and combination gymnasium and classroom structure located on the other side. Since 1972, the Council has allowed the school to close the 2100 block of Chestnut Street to traffic from 10:00 A.M. to 2:30 P.M. on school days because children are frequently required to cross the street to go back and forth for various classes and activities.
Beginning in late 1985, Trinity sought to purchase the 2100 block of Chestnut Street from the City of New Orleans. The purpose of the proposed purchase and permanent closure of the street was to fulfill three objectives of a long-range plan for the school—improve the safety and security of the students, provide a covered walkway between the gymnasium and the school buildings and enlarge the present playing field to make it one of near-regulation size. If the street were acquired, Trinity would move the pre-school playground presently located on the Jackson Avenue side of the campus to an area near the playing field and construct a new circular driveway and parking entrance on Jackson Avenue. A traffic impact analysis was performed for Trinity by a private consultant to determine the effects of the proposed closure on neighborhood traffic. Several neighborhood meetings were held with residents of the neighborhood to explain the proposed plan.
In November of 1986, the Council passed a resolution asking the City Planning Commission to hold a public hearing on the proposed purchase. A public hearing was held on January 20, 1987, at which both proponents and opponents of the proposed purchase were given the opportunity to express their views. Based upon the testimony presented at the hearing and written comments from opponents and proponents, as well as input from the Planning Advisory Committee and the traffic study, the City Planning Commission was of the opinion that the benefits provided by the Trinity plan outweighed any adverse impact on the area. However, instead of the proposed sale, the Commission recommended that the 2100 block of Chestnut Street be leased to Trinity under certain conditions. On April 2, 1987, the Council proposed an ordinance to authorize the City to enter
On April 27, 1987, this suit was filed by the Coliseum Square Association and Magazine Street Business Association, non-profit corporations, and several residents of the neighborhood against the City of New Orleans, seeking to declare the ordinance null and void and to enjoin the closure of the street.3 Trinity intervened in the suit and joined with the city as a party defendant in resisting the claims of the plaintiffs. Plaintiffs contended that the City of New Orleans had no authority to enter into a lease of a public street to a private concern and that even if it did, the lease of a presently-used public street was arbitrary and capricious. They further contended that the permanent closing of the street would complicate and increase traffic flow on existing streets, impede the access of emergency vehicles to the neighborhood, cause delays and inconvenience to the residents and change the historic fabric of the district. After a hearing, based upon the record, the trial judge denied plaintiffs’ petition for a permanent injunction finding that the Council had sufficient authority to lease the property and its decision to do so was neither arbitrary nor capricious.4 The court of appeal affirmed, finding authority to lease the property under the city‘s home rule charter and further finding that the Council was not arbitrary and capricious in deciding to close and lease the street.5 Upon plaintiffs’ application, we granted certiorari to review the correctness of that decision.6 On original hearing, finding that the closure of the 2100 block of Chestnut Street as no longer needed for public purposes was not within the legal authority of the Council, we declared the ordinance null and void and granted plaintiffs’ injunction. We granted a rehearing to reconsider whether the Council has the legal authority to close the street and, if so, whether the decision of the Council, finding the property was no longer needed for public purposes, was arbitrary and capricious.
Under § 3-112(5)(d) of the home rule charter, the Council is empowered to adopt proposed ordinances alienating any immovable property and granting any servitude, franchise or privilege. Specifically, § 6-307(4) authorizes the leasing of public property and provides:
Contracts for the leasing of property belonging to the City for periods of more than one year shall be subject to requirements which may be imposed by ordinance.[9]
Moreover,
A municipality may sell, lease for a term of up to ninety-nine years, exchange, or otherwise dispose of, to or with other political corporations of this state, or private persons, at public or private sale, any property, or portions thereof, including real property, which is, in the opinion of the governing authority, not needed for public purposes.[10] [Emphasis added.]
The authority of local governmental bodies to alienate public streets has been recognized by our courts. See Caz-Perk Realty, Inc. v. Police Jury of Parish of East Baton Rouge, 207 La. 796, 22 So.2d 121 (1945); Schernbeck v. City of New Orleans, 154 La. 676, 98 So. 84 (1923); Miller v. Calcasieu Parish Police Jury, 441 So.2d 306 (La.App. 3d Cir.1983), writ denied, 444 So.2d 121 (1984); Torrance v. Caddo Parish Police Jury, 119 So.2d 617 (La.App. 2d Cir.1960) Hence, we conclude that in the absence of a constitutional prohibition and in view of the express authority granted by the home rule charter and La.R.S. 33:4712(A), the Council possessed the legal authority to enter into a lease of the 2100 block of Chestnut Street with Trinity.
In reviewing the decisions of public bodies (the City Council in the instant case), the courts will not interfere with the functions of these bodies in the exercise of the discretion vested in them unless such bodies abuse this power by acting capriciously or arbitrarily. Caz-Perk Realty, Inc. v. Police Jury of Parish of East Baton Rouge, supra. In Caz-Perk, this court stated:
It is our opinion, therefore, that when the Legislature delegated to the police juries and municipal corporations of this state full power and authority over the revocation of dedicated streets, roads, and alleyways that have been abandoned or are no longer needed for public purposes, it is necessarily within the scope of the police power thus delegated to these political bodies by the Legislature to look into and determine whether the street is an abandoned street or is no longer needed for public purposes and it is the well-settled jurisprudence that courts will not interfere with the functions of police juries or other public bodies in the exercise of the discretion vested in them unless such bodies abuse this power by acting capriciously or arbitrarily.
22 So.2d at 124. Generally, “capriciously” has been defined as a conclusion of a commission when the conclusion is announced with no substantial evidence to support it, or a conclusion contrary to substantiated competent evidence. The word “arbitrary” implies a disregard of evidence or of the proper weight thereof. Favrot v. Jefferson Parish Council, 470 So.2d 286 (La. App. 5th Cir.1985); Torrance v. Caddo Parish Police Jury, supra.
Plaintiffs contend that the Council‘s action in closing the street was arbitrary and capricious because the 2100 block of Chestnut Street is presently being used by pedestrian and vehicular traffic during weekdays (except when it is temporarily closed from 10:00 A.M. to 2:30 P.M.) and on weekends. Since the block is presently in use, they argue that the street is “needed“; hence, the decision to close the street “as no longer needed for public purposes” is arbitrary and capricious.
The mere fact that the street is being used by the public does not mean that it is “needed” for public purposes. “Use” and “need” are relative terms and it is the duty of the Council, after reviewing and weighing the evidence presented, to determine whether discontinuance of the present use and any inconvenience resulting therefrom would outweigh whatever benefits would flow from the closure of the street.
The 2100 block of Chestnut Street is presently a one-way street running in the uptown direction and is closed to public use from 10:00 A.M. until 2:30 P.M. five days a week. The traffic impact analysis performed by Urban Systems, Inc. analyzed the effect that the permanent closure of the 2100 block of Chestnut Street would have upon traffic volume and flow in the vicinity of the school. This report established that an average of 505 vehicles used the block each day and out of those vehicles, 220 or about 44% were directly school-related. (This does not include church-related or after school activity-related traffic.) The report further determined that the vehicles that would be re-routed as a result of the closure could be accommodated on existing, adjacent streets without significant negative impacts or reduction in service. The proposed circular driveway on Jackson Avenue for drop-off and pick-up would remove Trinity-related traffic from the narrow one-way streets and also alleviate any potential traffic congestion on Jackson Avenue. The report recommended steps that could be taken to mitigate the impact, including reversing the one-way flow of traffic on Coliseum (the next street running parallel to Chestnut). This change would create a pair of one-way streets (Camp Street going downtown and Coliseum Street going uptown) that would work to the benefit of the neighborhood traffic
Trinity presently owns all of the property on both sides of the 2100 block of Chestnut Street. Many past and present Trinity students live in the neighborhood. The permanent closure of the block will not create a dead-end street, will not deprive any property owners of access to their property, and should not impede the access of emergency vehicles to the neighborhood residents.
Proponents contended that some of the benefits that would result from the permanent closure include increased security of the campus and safety of Trinity students as well as various other persons and groups who use the campus facilities on nights and weekends at all times of the year. Trinity has proposed a landscaping plan for the project that will increase the aesthetic quality of the neighborhood. The school‘s students have had a positive economic impact on the city and fulfillment of the school‘s long-term goals which include the use of the 2100 block of Chestnut will help the facility maintain its quality educational program. In fact, some residents of the neighborhood with no relationship to Trinity testified that the school‘s plans for the campus would enhance the value of the neighborhood in addition to increasing the quality of education at this inner city institution.
After weighing the substantial evidence presented to it, the Council determined that the present use made of the 2100 block of Chestnut Street could be served by alternative means and the benefits resulting from the permanent closure of the block outweighed whatever inconvenience the closure would have on the neighborhood in particular and the public in general. Based upon our review of the record, we are unable to say that the Council was arbitrary and capricious in its determination that the 2100 block of Chestnut Street is no longer needed for public purposes and it can be leased to Trinity under the terms and provisions agreed upon by the parties to the lease.
In sum, we find that the Council had the legal authority to close the 2100 block of Chestnut Street and lease it to Trinity and that the decision of the Council that the property was no longer needed for public purposes was neither arbitrary nor capricious. Accordingly, we should not substitute our judgment for that of the Council and will not. Hence, we reverse our judgment on original hearing and affirm the judgments of the courts below.
DECREE
For the reasons assigned, the judgment of the court of appeal is affirmed. All costs are assessed against plaintiffs.
DIXON, C.J., respectfully dissents.
WATSON, J., dissents and assigns reasons.
WATSON, Justice, dissents, adhering to the view that the City cannot lease public property being used by the public to a private concern under the pretext that the property is no longer