28 So. 2d 447 | La. | 1946
Plaintiffs, as owners of certain real property, instituted this suit against the city of Baton Rouge to have declared null and void and of no force and effect a certain *832 zoning ordinance adopted on September 27, 1944, by the Commission Council of that city, zoning the area in which their property is situated for residential purposes only and prohibiting its use for commercial purposes.
Judgment was rendered by the Nineteenth Judicial District Court, decreeing the ordinance to be null and void and of no force and effect, and enjoining and restraining the city, its officers, agents, servants, and employees from in any manner interfering with plaintiffs and appellees in their right to use for commercial purposes the property owned by them in the area zoned by the ordinance. The City of Baton Rouge has appealed.
The City of Baton Rouge on January 27, 1941, complying with the provisions of Act No.
On October 17, 1941, about nine months later, the Commission Council of the City of Baton Rouge adopted an ordinance (which has never been repealed or amended) creating a City Planning Commission and providing for the term of office of the members thereof, their qualifications, powers, and duties, and on the same day adopted another ordinance approving the appointment by the mayor of the 15 members of the Planning Commission and fixing *833
their terms of office. These two ordinances were adopted pursuant to the authority granted to municipalities by Act No.
The Zoning Commission, composed of five members appointed pursuant to the provisions of Act No.
Plaintiffs and appellees attack the amending ordinance of September 27, 1944, contending in brief and in argument before this court that the ordinance is null and void and of no force and effect for the reason that the proper commission (the City Planning Commission) did not act as required by Act No.
They contend in the alternative (1) that, even if the proper commission did act, the *834 notice of its public hearing was invalid and the hearing itself improper; (2) that, even if the ordinance was validly passed, it had a prospective effect only; (3) that, if the ordinance did have a retroactive application, it is so capricious and unreasonable as to be invalid.
Section 6 of Act No.
It is the contention of appellees that the Zoning Commission, appointed by the Commission Council of the City of Baton Rouge on January 27, 1941, pursuant to the provisions of the section of the act above quoted, ceased to exist on the creation and appointment thereafter by the Commission Council on October 17, 1941, of a City Planning Commission, and that the Zoning Commission was without authority to give notice, to hold the public hearing, and to recommend to the Commission Council the zoning for residential purposes of the area in which plaintiffs' property is situated, there being in existence at that time a *835 Planning Commission; that such notice, public hearing, and recommendations should have been made by the City Planning Commission, because, under the provisions of Section 6 of the act, when the City Planning Commission was created, it became the Zoning Commission and was vested with all the duties and powers of that commission, and that consequently the ordinance adopted by the Commission Council of the City of Baton Rouge on September 27, 1944, pursuant to the recommendations of the Zoning Commission, was null and void and of no force and effect.
Appellant contends that the Zoning Commission of the City of Baton Rouge was the proper commission to make recommendations to the Commission Council regarding the zoning of areas within the city, and that all proceedings leading up to the adoption of the ordinance were regular and valid. In support of this contention counsel argues (1) that the word "exists" as used in the last sentence of Section 6 of Act No.
Act No.
The last sentence of the section of the standard enabling act which corresponds to Section 6 of the Louisiana act reads as follows: "Where a city plan commission already exists, itmay be appointed as the Zoning Commission." McQuillin, loc. cit. supra.
It is to be noted that the Louisiana Legislature, in adopting Act No.
What, then, was the purpose and object of the Legislature in stating that, if a city planning commission exists, "it shall be the zoning commission"? Or, in other words, why did the Legislature make use of the mandatory words "shall be" instead of the words "may be appointed as" and delete the word "already"?
In seeking this object and purpose, it is our duty to construe the statute so as to accomplish the purpose for which it was enacted and to give effect to the legislative will, and, after the object which the Legislature had in view is ascertained, an interpretation should be adopted which best harmonizes with the context and with that object. Thibaut v. Board of Com'rs of Lafourche Basin Levee Dist.,
While to us the Legislature's intention in deliberately departing from the language of the standard enabling zoning act is clear and unambiguous, a consideration of the Louisiana zoning act and the city planning commission act reveals the reasons why the *838 Legislature so framed this sentence of the zoning act.
In order to avail itself of the powers conferred by Act No.
The powers and duties of the City Planning Commission, created by the ordinance adopted by the Commission Council on October 17, 1941, under the provisions of Section 3 of Act No.
It is true that Act No.
City zoning is an integral and component part of any intelligent and systematic city planning program, and city planning necessarily includes zoning. This fact was recognized by the Supreme Court of New Jersey in the case of Mansfield
Swett, Inc., et al. v. Town of West Orange et al.,
"* * * While planning and zoning are sometimes considered so closely of kin as to constitute a single conception, they do not cover identical fields of municipal endeavor. Although municipal planning embraces zoning, the converse of the proposition does not hold true. They are obviously not interchangeable terms. Zoning may not entirely exclude planning, but it obviously does not embrace planning in its entirety. *841
"Zoning is a separation of the municipality into districts, and the regulation of buildings and structures in the districts so created, in accordance with their construction and the nature and extent of their use. * * * It is the dedication of the districts delimited to particular uses designed to subserve the general welfare. It pertains not only to use but to the structural and architectural design of buildings.
"Planning, on the other hand, is a term of broader significance. It connotes a systematic development contrived to promote the common interest in matters that have from the earliest times been considered as embraced within the police power. * * *."
We do not think there is any doubt that, if a state adopts a statute following the language of the model zoning enabling act and a municipality passes an ordinance thereunder for the purpose of zoning, the municipality has the discretion of appointing the city planning commission as the zoning board, provided the planning commission is already in existence at such time as the municipality avails itself of the provisions of the act, or that in such case it is discretionary with the municipality either to appoint the city planning commission as the zoning commission or to appoint a zoning commission and thus have both commissions, which under our law would have overlapping duties and powers, functioning at the same time in the same municipality. We believe it was the object, purpose, and *842
intention of the Louisiana Legislature to prevent this very thing, because it deleted the word "already" and substituted the words "shall be" for "may be appointed as", thereby prohibiting the exercise of this discretionary right by a municipality availing itself of the provisions of Act No.
Although the ordinance here under attack was adopted pursuant to the recommendation of the Zoning Commission after public notice and a hearing by that body, that commission was not the proper one to give such notice, conduct a hearing, and make recommendations to the Commission Council, as these powers and duties are vested in the City Planning Commission, which is now the Zoning Commission of the City of Baton Rouge under the provision of Section 6 of Act No.
Due to the conclusion which we have reached, it is not necessary for us to discuss the alternative pleas made by the appellees herein. *843
For the reasons assigned, the judgment appealed from is affirmed; costs of these proceedings in so far as allowed by law to be paid by appellant, City of Baton Rouge.
PONDER, J., absent.