Busalacchi v. Board of Zoning Adjustments

SCHOTT, Chief Judge. We grant certiorari in order to consider the validity of the July 25, 1988 judgment sustaining the exception of the unauthorized use of summary proceedings and dismissing relator’s rule to show cause. R.S. 33:4728 empowers “the proper local authorities” to correct violations to enforce building and zoning regulations, to correct violations, and to prevent any illegal act on the premises. This court previously set aside the Board’s grant of a variance to Russell Tusa. Without a variance Tusa’s structure is in violation of the regulations, and relator is entitled to have the local authorities correct the violation by forcing Tusa to remove or modify the structure. Relator is entitled to seek a mandamus against the proper local authorities compelling them to perform their ministerial duty of enforcing the regulations. C.C. P. art. 3863. Mandamus is a summary proceeding. C.C.P. art. 3781. Plaintiff originally sought relief against the Board, but the Board is not subject to mandamus to compel enforcement; only the particular officer or department head charged with the duty of enforcement is so subject. State v. City of New Orleans, 209 So.2d 141 (La.App. 4th Cir.1968). [482] The record shows that relator amended his original rule to join as defendants the Chairman of the Board of Zoning Adjustments, the President of the Police Jury, and the Director of the Department of Safety and Permits, as well as Russell Tusa. None of these added defendants filed pleadings and among them only Tusa was present. The only matter taken up at the trial was the Board’s exception of unauthorized proceedings and the only judgment under consideration by this court is the trial court’s sustaining of that exception. At this point plaintiff is not entitled to any direct judicial remedy against Tusa. Accordingly, the judgment dismissing relator’s rule is affirmed but relator’s right to seek a writ of mandamus against the proper authorities of St. Bernard Parish to enforce the regulations by correcting the violation in question is reserved to him. AFFIRMED.