Dear Mayor Landry:
You have requested an opinion of this office concerning whether the Village of Dry Prong is required to appoint a zoning commission to impose and regulate zoning restrictions.
La. R.S. 33:4721 sets forth the general authority for regulating the use of buildings and land. It provides:
For the purpose of promoting health, safety, morals, or the general welfare of the community, the governing authority of all municipalities may regulate and restrict the height, number of stories, and size of structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of the buildings, structures, and land for trade, industry, residence, or other purposes; provided that zoning ordinances enacted by the governing authority of municipalities or the acts of the zoning commission, board of adjustment as herein provided for, or zoning administrator shall be subject to judicial review on the grounds of abuse of discretion, unreasonable exercise of the police powers, and excessive use of the power herein granted, or the denial of the right of due process, provided, further, that the right of judicial review of a zoning ordinance shall not be limited by the foregoing.
Your question concerning the ability of the governing authority to enact such an ordinance in the absence of a zoning board or existing zoning laws is addresses by La. R.S. 33:4726 which reads in pertinent part as follows:
A. In order to avail itself of the powers conferred by R.S. 33:4721 through R.S. 33:4729 the legislative body of the municipality shall appoint a zoning commission whose function it shall be to recommend the boundaries of the various original districts as well as the restriction and regulations to be enforced therein, and any supplements, changes or modifications thereof . . . (Emphasis added)
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C. Where a municipal planning commission exist it shall be the zoning commission.
The use of the term "shall" in a statute is mandatory. La. R.S.1:3. Therefore the recommendations to the governing authority must come from a zoning commission.
It is the opinion of this office that the Village of Dry Prong must appoint a zoning commission in accord with R.S. 33:4721 to make zoning recommendations which then can be acted on by the municipality.
We trust the foregoing has been helpful. Should you have any further questions, please contact our office.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: __________________________ FREDERICK C. WHITROCK Assistant Attorney General
RPI/FCW/tp
cc: Randall B. Keiser, Attorney Village of Dry Prong