Maher v. City of New Orleans

McCALEB, Justice

(dissenting).

It is my opinion that Section 22A of Article 14 of the Louisiana Constitution expressly forbids the City Council of New Orleans to reverse or refuse to enforce the findings of the Vieux Carre Commission. This Court has many times decided that a reading of the constitutional provision *143“ * * * reveals a plain intention on the part of the people to delegate to the City of New Orleans, acting through a Commission to be known as the Vieux Carre Commission, full and complete authority zvith respect to the preservation of the architecture and historic value of the buildings situated in the Vieux Carre.” City of New Orleans v. Impastato, 198 La. 206, 3 So.2d 559 (1941). (Emphasis mine.) To the same effect see City of New Orleans v. Pergament, 198 La. 852, 5 So.2d 129 (1941); City of New Orleans v. Levy, 223 La. 14, 64 So.2d 798 (1953); and Vieux Carre Prop. Owners & Associates Inc. v. City of New Orleans, 246 La. 788, 167 So. 2d 367 (1964).

When consideration is given to the constitutional mandate and the clear import of the language employed therein in defining the duties of the Vieux Carre Commission, a majority of the members of which must be composed of qualified architects and other persons intimately acquainted with the historical background of the Vieux Carre section, there can be little doubt that it was the plain design of the framers of the Constitution to vest in the Commission the plenary power of determining whether or not a permit should be issued or withheld for alterations, additions to any existing building or other changes which are to be made within the confines of the Vieux Carre section. Indeed, the Constitution specifically provides, in outlining the duties of the Commission, that:

“* * * whenever any application is made for a permit for the erection of any new building or whenever any application is made for a permit for alterations or additions to any existing building, * * * the plans therefor, so far as they relate to the appearance, color, texture of materials and architectural design of the exterior thereof shall be submitted, by the owner, to the Vieux Carre Commission and the said Commission shall report promptly to the Commission Council its recommendations, including such changes, if any, as in its judgment are necessary, and the said Commission Council shall take such action as shall, in its judgment, effect reasonable compliance with such recommendations, or to prevent any violation thereof.” (Emphasis mine.)

Thus, in the language of the Constitution, the City’s authority extends only to take action to effect reasonable compliance with the recommendations of the Commission or to prevent a violation of those recommendations; it is not authorized to overrule the recommendations or to refuse to carry them into effect. Under the majority ruling, the City Council can veto any (decision) recommendation of the Commission and thus abrogate the expert judgment of that body. This, in my view, is exactly what the framers of our Constitu*145tion sought to avoid, i. e., the transference of the considered judgment of selected experts into the hands of the administrative body for any purpose other than to “effect reasonable compliance with such recommendations, or to prevent any violation thereof.”

I respectfully dissent.