Opinion Number ( 1990 )

Dear Mr. Wall:

You have requested an opinion as to whether the Jefferson Davis Parish Police Jury may delegate complete and total authority for the decision of zoning appeals to the Jefferson Davis Parish Board of Zoning Adjustment, a creature of the policy jury. Rather than the police jury hearing and deciding the recommendation of the Board on a particular appeal, the decision of the Board of Zoning Adjustment would be final and the appeal from its decision would lie directly to the district court, rather than the police jury.

In our opinion this proposal constitutes an ultra vires act by the police jury, in that it is an unauthorized delegation of the sovereign power of the police jury delegated in turn to it by the legislature. It further violates La. Const. Art. VI, Sec.17 (1974), in that said delegation of the zoning power to the inferior board is not effected according to uniform procedures established by law.

The zoning power is part of the sovereign power invested in the police jury by the legislature by statutory delegation. LSA-R.S. 33:4877. The axiomatic principle here is that police juries may delegate a portion of their sovereign power only when the legislature expressly authorizes such delegation of function by statute, such as with the creation of bodies corporate by the police jury like water districts or gas districts. Lafourche Parish Water Dist. v. Carl Heck Engineers,346 So. 2d 769 (La.App. 1st Cir. 1977); State v. Haltom,462 So. 2d 662 (La.App. 1st 1984).

R.S. 33:4877 grants to the police jury the zoning power but authorizes neither the creation of a Board of Zoning Adjustment, nor the delegation of the administration of the zoning power to the Board, and further grants no such Board corporate or quasi-corporate or autonomous legal status. The police jury has the inherent power to create the Board as an advisory body; the authority to delegate to it the zoning power, and thereby make it an autonomous entity rather than an instrument of the police jury, must flow only from legislative enactment which under La. Const. Art. VI, Sec. 17, must apply uniformly to all police juries.

There is no legislative authority for the proposed delegation of zoning power from the police jury to its creature board. Therefore, it is ultra vires. The police jury must continue to hear and decide the recommendations of the Board of Zoning Adjustment. The police jury alone possesses, and therefore alone can exercise, this sovereign power delegated to it by statute.

Trusting this to be of sufficient information, I am

Sincerely,

WILLIAM J. GUSTE, JR. Attorney General

BY: __________________________ CHARLES J. YEAGER Assistant Attorney General

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