Judges: RICHARD P. IEYOUB
Filed Date: 10/10/2001
Status: Precedential
Modified Date: 7/5/2016
Dear Mr. Speed:
This office is in receipt of your request for an opinion of the Attorney General in regard to whether the Tangipahoa Parish Council-President Government can implement zoning and planning in the southern portion of Tangipahoa Parish and create a district overseen by a Board of Commissioners to implement the proposed zoning.
In Attorney General Opinion No. 94-370, we were of the opinion that if a Home Rule Charter Government had no provisions for a planning commission to implement zoning regulations, they could avail themselves of the provisions in LSA-R.S.
Upon review of the Home Rule Charter For A Council-President Government For Tangipahoa Parish we found no such provisions for a planning commission. LSA-R.S.
Every parish and every municipality may make, adopt, amend, extend, add to, or carry out official plans as provided in this Sub-part, and may create by ordinance a planning commission with the powers and duties herein set forth and may appropriate funds for the commission.
The Louisiana Supreme Court has recently stated that land use and zoning is best accomplished at a local level, and that Article VI, Section 17, expressly grants to local governments the power to enact zoning regulations. St. Charles Gaming Co., Inc., v. Riverboat GamingCom., 94-2697 (La. 1/17195)
Thus, it is the opinion of this office that the Tangipahoa Parish Council-President Government can enact an ordinance creating a planning commission to implement zoning.
Yours very truly,
RICHARD P. IEYOUB ATTORNEY GENERAL
_______________________________ ANN EVANS WALL Assistant Attorney General
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OPINION NUMBER 94-370
August 30, 1994
174 Zoning R.S.
If the home rule charter has no provision for the planning and zoning commission, R.S.
Mr. Charles R. McKaskle Mayor, City of Hammond P.O. Box 2266 Hammond, LA 70404
Dear Mayor McKaskle:
This office is in receipt of your request for an opinion of the Attorney General in regard to requirements for membership on the municipal planning and zoning commission. Your questions are as follows:
1. Does L.R.S.
33:4721 through 4732 require that the municipal planning and zoning commission be composed of members who are landowners and qualified voters within the municipality;2. May the City Council of Hammond lawfully adopt amendments to Section 24-53 through 24-58 to require that all members of the Hammond Planning and Zoning Commission be landowners, qualified voters and residents of the City of Hammond;
3. May a member of the Planning and Zoning Commission be removed for cause based on the member's failure to maintain status as a landowner, qualified voter or resident.
In answer to your first question, the requirement of R.S.
Under R.S.
This office in Atty. Gen. Op. No. 86-744 stated it examined R.S.
However, 1990 R.S.
Where a parish or municipality has adopted a charter for local self-government or other home rule charter and such charter provides for the establishment of a planning commission or otherwise provides for the functions of a planning commission to be performed by the governing authority or other board or commission, the provisions of this Subpart concerning membership, appointment, organization, and structure shall not be applicable. In such case, any parish or municipality with a home rule charter may avail itself of the power and authority granted herein to a planning commission; however, nothing herein shall diminish any power or authority already granted by a home rule charter or other law. (Emphasis added.)
Since you state the City of Hammond is governed by a Home Rule Charter this provision is pertinent in determining the answer to your remaining two questions. It clearly states when the charter provides for a planning commission or otherwise provides for the functions of a planning commission to be performed by a board or commission the provisions as set forth in the statute concerning membership, appointment, organization and structure shall not be applicable. Therefore, the proposed amendments must be considered in light of the charter provisions to determine if there is any conflict with the charter and if the statutory provisions concerning membership and appointment are applicable or not.
If the charter has no provisions for the commission so that the statute is applicable, R.S.
We hope this gives you sufficient information in answer to your inquiry, but if we can be of further assistance, do not hesitate to contact us.
Sincerely yours,
RICHARD P. IEYOUB Attorney General
By: ___________________________ BARBARA B. RUTLEDGE Assistant Attorney General
BBR
OPINION NUMBER 94-236
June 1, 1994
174 ZONING R.S.
The Zachary Board of Adjustment has the authority to hear the appeal of those cases which arise after the creation of the Board by the City Council and not those cases which were pending before the City Council prior to the Board's creation
Todd W. Hernandez, Chairman Zachary Board of Adjustment Sherwood Towers Bldg. Ste. 660 3636 S. Sherwood Forest Blvd. Baton Rouge, LA 70816
Dear Mr. Hernandez:
Your request for an opinion of the Attorney General regarding the Zachary Board of Adjustment has been assigned to me for consideration and response. Your request concerns the jurisdiction of the recently appointed Board of Adjustment. Specifically, you ask:
Does the Board of Adjustment, which is created by local ordinance and appointed by the city council, have the authority to hear an appeal of zoning actions taken by the local zoning commission and then by the city council? Does the Board have the authority to reverse, affirm or amend actions of the city council?
Your questions arise from a complaint filed against the City of Zachary with respect to a decision made by the zoning commission and then appealed to the City Council, which prior to appointment of the Board served as the local board of adjustment. On appeal, the City Council ruled against the complainant who then asked for a hearing before the newly appointed Board of Adjustment.
Since the receipt of your opinion request, I have been informed that the Board of Adjustment has refused to hear an appeal of the City Council's decision on the basis that the Board has no jurisdiction over this particular case.
Your question, therefore, is essentially whether the Board of Adjustment may be convened to hear an appeal of actions taken by the City Council in a matter which originated prior to the appointment of the Board of Adjustment.
LSA-R.S.
The local legislative body may provide for the appointment of a board of adjustment, and in the regulations and restriction adopted pursuant to the authority of R.S.
33:4721 through R.S.33:4729 may provide that the board may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules contained therein.
Thus, according to LSA-R.S.
Upon creation by the City Council, the Board of Adjustment acts in place of the local City Council and exercises the Council's legislative power for purposes of hearing appeals concerning zoning issues. The Board of Adjustment has jurisdiction, or power, to hear appeals of those cases which arise once the Board has been created. Unless specifically provided for by the City Council, the Board would have no power to hear the appeal of a matter pending before the City Council prior to creation of the Board.
Further, it is the opinion of this writer that to require an aggrieved person to exhaust another level of appeal imposed by the City Council while his or her case is pending, before being able to exercise his or her statutory right to appeal to the local district court, would be overly burdensome.
Therefore, it is the opinion of this office that the Board of Adjustment has the authority to hear the appeal of those cases which arise after the creation of the Board by the City Council and not those cases which were pending before the City Council prior to the Board's creation.
I hope that this has adequately answered your question. If you require any further assistance, please do not hesitate to call upon this office.
Yours very truly,
RICHARD P. IEYOUB Attorney General
BY: _________________________ GINA M. PULEIO Assistant Attorney General
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OPINION NUMBER 86-744
November 12, 1986
La.R.S.
A zoning commissioner does not have to reside within the city limits to be appointed to the zoning commission.
Honorable Mary Ellen Armitage Mayor Village of Folsom Post Office Box S Folsom, Louisiana 70437
Dear Ms. Armitage:
You have asked for an opinion from this office as to whether a non-resident of the village of Folsom may serve on the municipal zoning commission.
We have examined the requirements of La.R.S.
The zoning commissioner is appointed by the chief executive of the municipality and may be removed after public hearing for inefficiency, neglect of duty or malfeasance in office. La.R.S.
Consequently, we advise that even though a member of the municipal zoning commission lives outside of the jurisdiction of the city, he may be appointed on the city zoning commission.
If we may be of further service in this matter, please advise us.
Sincerely,
WILLIAM J. GUSTE, JR. Attorney GeneralBY: ________________________ DAVID C. KIMMEL Assistant Attorney General
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