Vermilion Parish Hurricane Flood Protection & Drainage District v. City of Abbeville

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-581

VERMILION PARISH HURRICANE FLOOD PROTECTION &
DRAINAGE DISTRICT

VERSUS

CITY OF ABBEVILLE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 92991 - B
HONORABLE JULES DAVIS EDWARDS, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and J. David Painter, Judges.

AFFIRMED.

James Isaac Funderburk
Funderburk & Herpin
P. O. Drawer 1030
Abbeville, LA 70511-1030
(337) 893-8140
COUNSEL FOR DEFENDANT APPELLEE:
City of Abbeville

Paul Gonsoulin Moresi, III
Attorney at Law
P. O. Box 1140
Abbeville, LA 70511-1140
(337) 898-0111
COUNSEL FOR PLAINTIFF APPELLANT:
Vermilion Parish Hurricane Flood Protection & Drainage District

SAUNDERS, Judge.

This is a case where a district created by a parish policy jury attempted to

call to election an ad valorem tax which would include the land located within a

municipality. The municipality’s city charter prohibits the police jury from taxing

within its municipal limits unless for specified purposes. The ad valorem tax was

not for one of those specified purposes.

The trial court held that the district could not call the election due to

prohibition by the municipality’s city charter. The district appeals this judgment.

We affirm.

FACTS AND PROCEDURAL HISTORY:

On February 10, 2010, The Vermilion Parish Police Jury (VPPJ), acting as

the governing authority of the Vermilion Parish Hurricane Flood Protection and

Drainage District, Louisiana (the district), adopted a resolution calling for a parish

wide election for consideration of imposing an ad valorem tax on all properties

situated within Vermilion Parish. The purpose of this proposed tax was to improve

flood protection, hurricane protection, and drainage.

This resolution was questioned as to legality by the City of Abbeville

through its mayor and city council. According to Abbeville, this tax was in

violation of Section 6 of its city charter.

In response, the district rescinded its February 10, 2010 resolution and filed

suit on October 14, 2010. The petition was amended on February 22, 2011, to add

the VPPJ as a party plaintiff in its capacity as the governing authority of the district.

After exceptions and stipulations not relevant to this appeal, the case was

tried by the trial court on February 22, 2012. At the conclusion of the trial,

judgment was reached that the district was not authorized to call for an election for

the consideration of an ad valorem tax within the municipal limits of Abbeville for

the purposes of hurricane protection and/or drainage because Abbeville’s special

legislative charter prohibited this action. The district appeals this judgment, raising

a single assignment of error.

DISCUSSION OF THE MERITS:

In its sole assignment of error, the district contends that the trial court

committed error finding that Abbeville’s legislative charter prohibits it from

calling for an ad valorem tax within Abbeville’s municipal limits. We find no

merit to this contention.

This assignment of error raises the issue of whether the trial court was

legally correct in its interpretation and application of Section 6 of Abbeville’s city

charter in light of La.R.S. 39:562(N). As such, it raises a question of law.

Questions of law are reviewed de novo to determine whether the lower court was

legally correct. A Fuselier Bonding Service, Inc. v. Perez, 10-1416 (La.App. 3 Cir.

4/6/11), 62 So.3d 296.

Section 6 of Abbeville’s city charter, in pertinent part, states:

[N]o tax shall be imposed upon the City of Abbeville by the police
jury of the Parish of Vermilion, Louisiana, except for the building or
repairing of a courthouse or jail, constructing or maintaining of hard-
surfaced roads as herein set forth or for the maintaining and operation
of a parish wide public library as herein set forth.

Based on the language cited above, the district concedes that the VPPJ is

prohibited from calling for a parish election to consider the imposition of an ad

valorem tax on all properties situated within Vermilion Parish for the purposes of

improving flood protection, hurricane protection, and drainage. However, the

district argues that it is a separate and distinct entity from the VPPJ, and the

language in Abbeville’s city charter above does not apply to it. The district bases

its argument on its belief that it is a legislatively created entity rather than one

created by the VPPJ and that its taxing authority comes from the Louisiana
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Constitution and Statute. The district cites La.R.S. 39:562(N) (emphasis added)

which states:

Notwithstanding any contrary provisions of this Section, in any
parish where the construction of pump and levee drainage systems are
required in order to drain its territory, and the need for such
construction has been verified by the Department of Transportation
and Development, the governing authority of such parish or any
parish wide hurricane flood protection and drainage district
(“district”), which district is hereby authorized to be created by and
governed by such governing authority, may incur debt and issue
bonds for the purposes of constructing and improving levees and
gravity and forced drainage works which, including the existing
bonded debt of the parish or the district for such purposes, may
exceed ten percent but shall not exceed twenty percent of the assessed
valuation of the taxable property of such parish, including both:

(1) Homestead exempt property, which shall be included
on the assessment roll for the purposes of calculating
debt limitation; and

(2) Nonexempt property as ascertained by the last
assessment for any parish for local purposes prior to
delivery of the bonds representing such debt, regardless
of the date of the election at which such bonds were
approved.

Our reading of this statute is that the district is created by “the governing

authority of such parish,” i.e., in this case, the VPPJ. Thus, the district’s argument

that it is created by and its taxing authority comes from the legislature is without

merit.

We agree with the trial court that to hold otherwise is absurd. Should we

give the interpretation as requested by the district, the VPPJ would have the ability

to create entities and grant those entities powers that it does not have itself.

Further, as succinctly stated by the trial court in its reasons for judgment:

It would be absurd to believe that the authors of the [Louisiana]
Constitution prohibited the Parish from levying and collecting taxes in
the City, except for the following specified enumerated reasons: the
building or repairing of a jail, constructing or maintaining hard
surfaced roads, or maintaining a public library, and also authorized the
Parish to create a special district to levy and collect those taxes for
other purposes, and then allow the Parish to consolidate the Special
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District and the Police Jury, meaning the Police Jury could create
powers for itself by creating a special district that the Legislature did
not authorize the Police Jury to exercise.

The district cites Town of Church Point v. Acadia Parish Police Jury, 03-

1268 (La.App. 3 Cir. 9/19/03), 865 So.2d 755 to attempt to bolster its argument.

We find this case distinguishable. In Town of Church Point, no prohibition of

taxation was at issue as is the case here due to Section 6 of Abbeville’s City

Charter.

Given the above, we find no error in the trial court’s judgment. Accordingly,

we affirm the trial court’s judgment.

CONCLUSION:

The Vermilion Parish Hurricane Flood Protection and Drainage District,

Louisiana appeals from the trial court’s judgment that prohibits it from calling to

an election an ad valorem tax to fund its purposes within the municipal limits of

Abbeville, Louisiana. The Vermilion Parish Hurricane Flood Protection and

Drainage District, Louisiana derives its power from the Vermilion Parish Policy

Jury, which is prohibited from taxing within the municipal limits of Abbeville

except for enumerated reasons listed in Section 6 of the Abbeville City Charter.

The Vermilion Parish Hurricane Flood Protection and Drainage District,

Louisiana’s attempt to pass the ad valorem tax is not based on one of those

enumerated reasons, thus, it is prohibited by Section 6 of the Abbeville City

Charter. Accordingly, we find no error in the trial court’s judgment. All costs

of these proceedings are assessed to The Vermilion Parish Hurricane Flood

Protection and Drainage District, Louisiana.

AFFIRMED.

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