Judges: RICHARD P. IEYOUB
Filed Date: 9/13/2002
Status: Precedential
Modified Date: 7/5/2016
Dear Mr. Breaux:
Your request for an opinion regarding the legal requirements for the enactment of ordinances by the Lafourche Parish Council has been received and forwarded to me for response. Within your request, you have specified three issues of concern that will serve as the organizational scheme for the responses that will follow.
The first issue requests an opinion on the legality of the action taken on the proposed ordinances since they were not published within fourteen days of introduction. The second issue requests an opinion on the legality of the ordinances adopted at the public hearing, notice of which was published on June 10th and the hearing held on June 11th. The third issue, the legality of the newly appointed Official Journal theTri-Parish Times, we understand to now be moot as the Tri-Parish Times has declined appointment as the Official Journal of Lafourche Parish.
Local governments derive their authority to adopt a home rule charter from Article VI, Section 5 of the Louisiana State Constitution. La. Const. Art.
Therefore, a home rule charter may contain more stringent requirements than the Louisiana Constitution or general law, but may not conflict with or supercede either.
The Lafourche Parish Home Rule Charter (hereinafter "Lafourche Charter") Article IV (Ordinances and Resolutions), Section B(4) provides that "each proposed ordinance shall be published in the official journal of the parish within fourteen days after introduction." It should be noted that Section B(4)'s requirement that proposed ordinances be published within fourteen days does not clearly allocate the responsibility to publish the required proposed ordinances upon the official journal or the public official responsible for providing the information, but presumes that the public official will furnish the information and the official journal will publish it within fourteen days. The Lafourche Charter does not state a penalty for the public official or the official journal for failure to publish the proposed ordinances within Section B(4)'s fourteen day time period.
LSA R.S.
There are two additional requirements in the Lafourche Charter pertaining to the publication of ordinances actually enacted. Section B(8) states: "After an ordinance has been enacted, it shall be published in the official journal of the parish." Section B(9) states: "An ordinance shall become effective on the tenth day after final publication, unless a later date is provided therein. In no event shall an ordinance become effective within ten days after final publication."
Thus, reading Sections B(4), B(8), and B(9) of the Lafourche Charter inpara materia requires: a) publication of the ordinance within fourteen days of introduction and b) publication after enactment but at least ten days prior to the ordinance taking effect. Therefore, if the publication of the proposed ordinance was not within fourteen days of introduction, or there was no final publication subsequent to enactment, the statute cannot take effect. Further, LSA
In Attorney General Opinion 80-1113 (copy enclosed), this office examined the consequences of failing to properly publish ordinances adopted by a home rule charter jurisdiction. In that opinion, this office concluded that ordinances adopted and not correctly published (as opposed to ordinances adopted and never published at all) could be re-introduced, ratified by the governing body, and correctly published in accordance with the pertinent home rule charter provisions. While there are now specific statutory requirements regarding publication of ordinances, it remains the opinion of this office that ordinances adopted, but not correctly published, must be properly re-introduced, ratified by the Lafourche Parish Council, and correctly published in accordance with state law and the Lafourche Charter.
Regarding the notice requirements for public meetings held to adopt an ordinance, Article IV, Section B of the Lafourche Charter contains quite specific requirements regarding the enactment of ordinances. Section B(5)(a) states "There shall be a general public hearing for every proposed ordinance. The date, time, and place of the public hearing or hearings shall be published in the official journal of the parish not less than five nor more than fourteen days prior to such hearing or hearings." (Emphasis added). Using the same reasoning as stated above, it is the opinion of this office that any ordinances adopted in contravention of any of the requirements contained in the Lafourche Charter pertaining to the adoption of ordinances should be properly re-introduced, ratified, and correctly published.
I trust this addresses the concerns presented in your opinion request. Please feel free to contact this office in the future should you require further information or assistance.
Yours very truly,
RICHARD P. IEYOUB ATTORNEY GENERAL
______________________________ THOMAS L. ENRIGHT, JR. Assistant Attorney General
RPI/TLE;dsc
Enclosure
Date Released: September 13, 2002
OPINION NUMBER 80-113
March 24, 1980.
71 Municipalities La.R.S.
A municipality may extend its corporate limits, through annexation, by either an election or ordinance upon the submitting of a proper petition by the residents. A municipality may also extend its municipal limits on its own where the boundary to be annexed is 90% common to the boundary of the municipality. A municipality is not required to extend its territory unless it deems it in the best interest of its citizens.
Honorable James H. Cockerham Mayor Town of Ridgecrest Ridgecrest, Louisiana 71334
Dear Mayor Cockerham:
You have asked for an opinion from this office concerning the procedure for annexing and thereby enlarging municipal limits.
Specifically, you advised that there is a plot of land adjacent to the municipality and which is surrounded on two sides and a part of a third by the town. You have asked if the town is required to incorporate this area upon the petition of a resident or residents of the subject area.
The procedure for municipal annexation is contained in La.R.S.
La.R.S.
Whenever one-third in number and value of the bonafide owners of any lots or land, lying contiguous and adjacent to the territorial corporate limits of any city or town, the City of New Orleans excepted, or, whenever one-half in number and value of the bonafide owners of any lots or land, lying contiguous and adjacent to the corporate limits of any city located in a parish, which parish has a population of between 115,000 and 125,000 persons, desire that such lots or land be annexed to and included in the territoral corporate limits of any such adjacent or contiguous city or town. . . .
In accordance with La.R.S.
A municipality's boundries may also be enlarged by a petition and ordinance as opposed to an election in accordance with La.R.S.
In this case:
No ordinance enlarging the boundaries of municipalities shall be valid unless prior to the adoption thereof, a petition has been presented to the governing body of a municipality containing the written assent of a majority of the registered voters and the majority in number of the resident owners as well as twenty-five percent in value of the property owners within the area proposed to be included in the corporate limits according to the certificate of the parish assessor.
At its own option, a municipality may annex territory by ordinance, provided that at least 90 percent of the boundary of the area to be annexed is common to the boundary of the municipality. La.R.S.
In addition, a municipality may call a special election to seek approval of 25 percent of the residents of the proposed area to be annexed, which election can be called without the necessity of the aforementioned petition. La.R.S.
It is quite apparent that a municipality is not required to annex territory, either by calling an election or by ordinance, if it deems that such annexation is not in the best interest of the community. The power to extend or contract corporate limits of municipalities is a legislative power which is an incident to its power to create or abolish municipalities. A state legislature may enact a statute annexing contiguous territory or authorizing a procedure for annexation, to become opera hive upon the happening of certain contingencies. State ex rel. Kempv. the City of Baton Rouge,
However, a municipality may extend its territory on its own option by virtue of the aforestated La.R.S.
If you have futher questions regarding annexation then please feel free to call or write at any time.
With kindest personal regards, we remain,
Very truly yours,
WILLIAM J. GUSTE, JR. Attorney General
By: __________________________ David C. Kimmel Assistant Attorney General
WJG, JR/DCK/jm