Judges: RICHARD P. IEYOUB
Filed Date: 5/9/2002
Status: Precedential
Modified Date: 7/5/2016
Dear Mr Scafidel:
This office is in receipt of your request for an opinion of the Attorney General in regard to the legality of the St. Bernard Parish Council Ordinance SBPC #510-11-01 relative to the authority and jurisdiction of the St. Bernard Port. You state the ordinance seeks to establish rules and regulations regarding wharves, piers, docks, boat slips and other structures in, over, on or along water. You believe this ordinance is in conflict with R.S.
We note that the ordinance in question provides in part as follows:
INTENT AND PURPOSE
A. The intent and purpose of this section is to establish an effective regulatory program for permitting the location and construction of wharves, piers, boat slips and other structures in the areas of St. Bernard Parish located outside of the Forty Arpent Levee System over or on waterways or water bodies. This section shall establish the following:
1. Regulations regarding construction standards and structure location.
2. Permitting requirements.
3. Permit fees
4. Enforcement.
As noted by this office in Atty. Gen. Op. 98-160 in accordance withLake Charles Harbor Terminal District v. Calcassieu Parish PoliceJury,
Thereafter, in accordance with R.S.
It would appear that the ordinance in question, wherein it provides for a regulatory program to control the location and construction of camps, wharves, piers, boat houses, boat slips, and other structures in, over, on or along waterways, their shores, banks or sides in the area of St. Bernard Parish located "outside of the Forty Arpent Levee System" was an attempt to place the regulation outside of the District, but despite this provision this office would have to conclude that the ordinance infringes upon the authority of the Port Commission, being a political subdivision of the State. There is an inconsistency in stating the ordinance is to establish a regulatory program outside of the Forty Arpent Levee System and at the same time state it is to control the construction of "camps, wharves, piers, boat houses, boat slips and other structures over, on or along waterways, their shores, banks or sides." Control of these areas clearly are within the jurisdiction of the St. Bernard Port, Harbor and Terminal District.
We find support for this conclusion by the fact that it is provided in the ordinance that prior to applying for a permit from the Parish, the applicant shall obtain all necessary federal and state permits from the agencies designated therein and includes in the list "the St. Bernard Parish Port Authority".
Moreover, the authority of the District is pertinent wherein R.S.
The board of commissioners of the St. Bernard Port, Harbor and Terminal District shall also have and exercise the powers granted to deep water port commissions pursuant to R.S.
9:1102.1 in all cases where riparian owners of property on navigable rivers, lakes, or streams within said district desire to construct wharves, buildings, or improvements on the batture or banks owned by them, which are designed for and/or used for such commerce and traffic domestic, coastwise, or intercoastal commerce, including cargo bound for and/or in and/or coming out of international commerce where such is conducted by or through a facility owned by the district.
It would seem a possible solution to the problem that the St. Bernard Parish government attempts to remedy may be to enter into a cooperative endeavor with the St. Bernard Port, Harbor and Terminal District. In the regard R.S.
The board of commissioners of the St. Bernard Port, Harbor and Terminal District shall have the right to enter into any and all contracts and agreements with the Parish of St. Bernard, the board of commissioners of the Port of New Orleans, and any other public subdivisions or authorities relative to any and all matters which lie within the jurisdiction of the district and the board of commissioners thereof.
We hope this sufficiently responds to your inquiry.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
By: ____________________________ BARBARA B. RUTLEDGE Assistant Attorney General
RPI/bbr
Date Released: May 9, 2002