Kel-Kan Inv. Corp. v. Village of GreenwoodKel-Kan Inv. Corp. v. Village of Greenwood
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
We find that Louisiana‘s stаtutory 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 оf 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 mоst 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 оf 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 conсerning 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 apрroved 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 Bоard 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
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
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.
Following
After the ordinance is adopted by the governing authorities,
[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.
Conspicuously absent from the statutory scheme is a provision for judicial review when no ordinance has been passed either enlarging or contracting the boundaries of a municipality. Nor is there provision for
The plaintiffs argued successfully in the lower courts that judicial review is available because the court can generally review the actions of a municipality to decide whether such actions are arbitrary, capricious or unreasonable.
Admittedly, very early on, this Court upheld as constitutional statutes allowing appeal to the courts to determine the reasonableness of ordinances which extend the boundaries of a municipality. See New Orleans & N.W.R. Co. v. Town of Vidalia, 117 La. 561, 42 So. 139 (1906). Likewise the court‘s review of the reasonableness of ordinances to contract the boundaries of municipalities is settled. Edwards v. Town of Ponchatoula, 213 La. 116, 34 So.2d 394 (1948).
What has not yet been decided by this Court is whether there can be judicial review of a municipal body‘s decision not to enact an ordinance,2 without express statutory authority for such review, and whether the court may either order the municipal governing authority to enact an ordinance of deannexation (or annexation) or order the deannexation (or annexation) itself.
The Court of Appeal in Kel-Kan I, supra, in addressing the question of whether plaintiff‘s petition stated a cause of action, acknowledged that the question was not an “attack upon the reasonableness of an ordinance contracting municipal limits, but with the alleged arbitrariness of the municipal governing body in refusing to contract those limits.” (Emphasis in original). Likewise the Kel-Kan I court acknowledged that there were nо Louisiana cases on that precise question. 393 So.2d at 821. As a result, the court relied upon a case of the New Jersey Supreme Court to decide that there existed outside the statutory provision of
Courts may review ordinances which have been passed, for compliance with legislatively ordained standards of reasonableness. Review of a councilmanic decision to desist from passing an ordinance, however, is a different matter, involving court scrutiny of the motives of a law-making body, and
When an ordinance is challenged which is enacted by virtue of the discretionary power of the municipal legislative body, the judiciary will not inquire into the motives of the legislators in determining the reasonableness of the provision. 5 McQuillin, Municipal Corporations § 16.90 (3rd ed. 1981). Our courts usually do not review the policy or wisdom of legislation, and confine our considerations to determining the applicability, legality, or constitutionality of laws.
It has been suggested, however, with some conviction, that the problems of separation of powers does not figure so greatly in questions of a state court‘s review of municipal legislative action. Note, 78 Harvard Law Review 1596 at 1603. Municipalities are creatures of the Legislature and possess those powers granted to them by the state.
Apparently it was just such extraordinary circumstance and public policy which required the New Jersey court in West Point, supra to have the township deannex the disputed territory. There are no comparable circumstances or imperative public policy to warrant the intervention in the case before us.
The West Point case involved a dual process whereby neighboring municipalities might annex and deannex respectively a particular contiguous territory. The statute required action on the part of both municipalities. One would annex the affected territory simultaneously with the adjoining township‘s deannexation. The linchpin to an effective transfer was the willingness of both townships to pass the required ordinances. Therefore the New Jersey Supreme Court found that the municipal decisions involved would affect the statewide legislative scheme for deannexation of land from one municipality and for its annexation to another. Were judicial review not available, “the municipality in which the land is located by mere whim could thwart the purpose of the annexation statute.” West Point, supra 255 A.2d at 241.
In this case, we have an entirely different situation presented. The scheme involves action on the part of only one
Nor is there any overriding public policy considerations. There is no statewide scheme which will be thwarted by the municipality‘s inaction. Louisiana‘s statutory scheme for the enlarging оr contracting of municipal boundaries requires affirmative action on the part of the municipality, either by petition and election (
Nor can we find any non-statutory basis for the court‘s ordering deannexation. There is no constitutional right to annexation or deannexation. State ex rel. Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477 (1949). See also: Annot. 22 A.L.R. Fed. 272 (1975); Annot. 117 A.L.R. 267 (1938).
By virtue of the annexation of the disputed territory in 1972, the owners are now residents of the village of Greenwood and presumably are able to express their approval or disapproval of the inaction of the incumbent governing authorities at the ballot box.
Decree
For the foregoing reаsons, we reverse the judgments of the lower courts.
REVERSED.
* * *
LEMMON, J., dissents and assigns reasons.
LEMMON, Justice, dissenting.
When a statute provides a procedure whereby certain citizens can petition a municipality for annexation or deannexation and the municipality acts on the petition by adopting a motion denying the petition, the statutory right of judicial review of the ordinance (which would have been enacted if the petition had been approved) is impliedly applicable to the denial of the petition. Adoption of the motion denying the petition should be viewed as the equivalent of an ordinance-declining deannexation. It is the official action of the municipality, and not the ordinance which evidences that action, which is subject to judicial review.1
I would affirm the judgments of the courts below.