
    Arthur H. FLEMING, Plaintiff-Appellee, v. Clifton MATURIN “Permit Engineer” of the City of New Iberia, Defendant-Appellant.
    No. 4963.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 1975.
    Rehearing Denied June 18, 1975.
    
      Armentor & Wattigny by Minos H. Ar-mentor, New Iberia, for defendant-appellant.
    
      Mestayer & Simon by S. Gerald Simon, New Iberia, for plaintiff-appellee.
    Before HOOD, MILLER and WATSON, JJ.
   MILLER, Judge.

Defendant Clifton Maturin, Permit Engineer of the City of New Iberia, appeals the trial court judgment ordering him to issue a “driveway permit” to plaintiff Arthur H. Fleming. We reverse.

The issue presented is whether plaintiff’s proposal to construct two driveways on his property complies with New Iberia’s ordinance regulating the construction of entrances and exits from private property adjacent to city streets and sidewalks.

Fleming owns property located at the intersection of Iberia and Pershing Streets. On September 3, 1974 he obtained a driveway permit providing for one entrance to his parking area. On December 9, 1974, he submitted a new application for two driveways and stated that he was unable to properly utilize the parking area as constructed under his first permit. The sketch (Tr. IS) attached to his second application is vague, but indicates he seeks a permit to build two 35’ wide driveways into his paved parking area which is some 90’ wide by 20’ in depth. The distance between the two driveways appears to be about two feet. There is no evidence to suggest Fleming's application contemplated driveways that would be 10' apart.

Maturin refused to issue the permit for several reasons, one of which was that New Iberia’s ordinance required a distance of 10' between these two driveways.

Since Fleming’s lot was more than 50' and less than 200' wide, the regulations allowed him two combined entrances and/or exits. (Art. 5[b] of restrictions.) Since Fleming’s property was being used for a commercial establishment and since the driveways were to be perpendicular to Pershing Street, the maximum width of the two driveways was set at 35' each. (Art. 5[c]) We are here concerned with interpreting art. 5 [e] of the regulations which provides:

The distance between the inner edges of entrance and exit shall be not less than ten (10) feet where they intersect either the right of way line or the road surface.

Fleming argues and the trial court held this provision is subject to two interpretations, either of which is reasonable: 1) the driveways have to be at least ten feet apart, and 2) each driveway must be at least ten feet wide. On that basis the trial court held the ordinance vague. Since it restricts the owner in the use of his property and is penal in nature, it was interpreted in a manner most favorable to the property owner.

As noted earlier, Fleming’s application is vague making it difficult to determine his exact intention. This in itself fails to comply with New Iberia’s Ordinance No. 139 adopted September 5, 1972 (Tr. 11), which requires “a detailed drawing of the size and nature of the improvements” to accompany the application for driveway permits. It appears that Fleming intended to use the permit not to provide driveways as such, but instead an almost solid paved area for both parking and driving in and out. This does not give an orderly movement of traffic. The regulations are a reasonable exercise of the police power since they prevent confusion in entering and exiting from establishments and prevent comingling of driveway and parking areas. These regulations may prevent the dangerous maneuver of backing into streets.

The city furnished a fifteen page printed brochure setting forth numerous illustrations of plans for driveways which complied with the ordinance and regulations (which are identical to R.S. 48:344 for state highways, and to the LDH’s printed brochure showing the same illustrations). Three of these illustrations suggest methods of design for two driveways into one commercial establishment. All carefully detail the minimum 1CK distance required between the two driveways.

When the ordinance and regulations are read in context and referenced to the attached illustrations, there is nothing to suggest that art. 5[e] sets a minimum width for each driveway. The minimum width applies to the distance between the two driveways.

Mr. Maturin properly rejected the December 9, 1974 application for the second driveway. The judgment appealed from is reversed and set aside. Plaintiff’s suit is dismissed at plaintiff’s costs.

Reversed and rendered.

HOOD, J., dissents and assigns written reasons.

HOOD, Judge

(dissenting).

In my opinion the judgment rendered by the trial court is correct and should be affirmed. For that reason I am unable to concur in the judgment rendered by my colleagues in this case.

In the first place, I believe that Paragraph 5(e) of the regulations adopted by the City of New Iberia means, and was intended to mean, that each driveway must be at least ten feet wide. It does not mean that there must be a distance of at least ten feet between driveways. No conceivable purpose would be served by having such a requirement. Plaintiff is seeking a permit to build two driveways, each 35 feet wide. The driveways he plans to build thus strictly comply with the rules and regulations set out by the city.

Ordinance No. 139 of the City of New Iberia provides that entrances and exits from private property adjacent to city streets and sidewalks shall comply with the rules, regulations and standards prescribed by the Louisiana Department of Highways, pursuant to LSA-R.S. 48:344 for state highways.

LSA-R.S. 48:344 authorizes the Highway Department to prepare and promulgate descriptions of various types of entrances and exits, and to issue permits of necessity and convenience for the installation of driveways. Pursuant to that authorization, the Department of Highways prepared and promulgated a pamphlet containing descriptions of various types of entrances and exits between private property and public highways.

The City Council of New Iberia approved and promulgated a pamphlet identical to that issued by the Highway Department, except that changes were made to show that the requirements applied to private property abutting city streets rather than highways.

The City of New Iberia also adopted a form of application for a “Driveway Permit,” which was modeled after a form used by the Highway Department. Paragraph 5 of that form, containing 17 sub-paragraphs, sets out the rules and regulations required by the city for constructing driveways leading from private property to city streets.

Paragraph 5(b) provides that not more than two driveways can be constructed on a private lot which is more than 50 feet and less than 200 feet wide. Paragraph 5(c) provides that the maximum width of driveways shall be 35 feet, when the angle of intersection is between 61 and 90 degrees. Paragraph 5(d) regulates the permissible radii on driveway returns. And, Paragraph 5(e) provides:

“(e) The distance between the inner edges of entrance and exit shall be not less than ten (10) feet where they intersect either the right of way line or the road surface.”

The use of the words “inner edges” in sub-paragraph (e) indicates that that provision was intended to prescribe the minimum width of driveways. Also, the fact that sub-paragraph (e) closely follows the provision which regulates the maximum width of driveways strongly suggests that sub-paragraph (e) was intended to regulate the minimum width of driveways. If sub-paragraph (e) is interpreted in any way other than as providing a minimum width of driveways, then there is no provision in the regulations at all which prescribes the minimum width of driveways. Insofar as the regulations are concerned, driveways could be as little as three, four or five feet wide. I feel certain that the Highway Department and the City of New Iberia intended to regulate the minimum as well as the maximum width of driveways, and they obviously intended for Paragraph 5(e) to regulate the minimum width.

The defendant and my colleagues have interpreted Paragraph 5(e) as meaning one thing, while the plaintiff, the trial judge and I feel that it has an entirely different meaning. It seems to me, therefore, that my colleagues at least must concede that there is some ambiguity in that particular regulation. If there is ambiguity in it, then the judgment of the trial court which holds that the provision is ambiguous should be affirmed.

The ordinance which imposes these regulations is penal in nature, and it tends to restrict the owner in the free use of his property. For those reasons, I believe that any ambiguities in it should be construed in the way which is favorable to the landowner rather than to the city.

Assuming, however, that the interpretation which the majority has placed on Paragraph 5(e) is correct, and that there is no room for any other interpretation to be placed on it, then we are faced with the question of whether the driveways which plaintiff wants to construct comply with that ordinance. I think the construction which he plans and describes in his application does comply with the ordinance.

Fleming submitted with his application “a detailed drawing of the size and nature of the improvements,” as required by the ordinance. That drawing shows that he intends to construct two driveways, each 35 feet wide, with a space between them which is marked on the sketch as being “10'.’’ I interpret that to mean that the plaintiff intends to leave a space of ten feet between the two 35 foot driveways. The majority states that “the distance between the two driveways appears to be about two feet.” There is nothing in the application or on the drawing which accompanies it that indicates that the distance between the two driveways is anything other than ten feet. Despite the distance actually specified on the drawing, my colleagues apparently measured the distance as it appears on the drawing, and then by applying a scale they estimated that the two proposed driveways were only two feét apart. In doing so, they assumed that the sketch was drawn to scale.

The sketch attached to plaintiff’s application consists of a photocopy of an original plat of plaintiff’s lot, and superimposed over that plat are lines drawn in red ink showing the driveways and the space between them. The record does not show who prepared the original plat or the superimposed drawing. Although the original plat appears to have been drawn to scale, there is nothing to indicate that the red lines superimposed over that sketch also were drawn to scale. Regardless of whether all or any part of the drawing is drawn to scale, it seems to me that the measurements shown in figures will control if the permit is granted, and that the applicant thus will be bound to leave a space of ten feet between the two driveways, whether or not the ordinance requires that that be done.

In any event, I see no reason to deny plaintiff a permit simply because it is uncertain as to whether he plans to leave a distance of ten feet between the driveways. The form of permit used by the city specifically provides that the city may impose “special conditions” upon the granting of any such permit. In this instance the Permit Engineer needs only to insert in the permit a “special condition” that the two driveways must be ten feet apart — if the view of the majority prevails that that is a requirement. The judgment which we render should not reject plaintiff’s demand for a mandamus. It at most should merely direct that the “special condition” above mentioned should be stated on the permit.

For these reasons, I respectfully dissent.

ON APPLICATION FOR REHEARING

MILLER, Judge.

In his application, plaintiff contends the Louisiana Constitution of 1974 mandates that a five judge panel hear reargument because there was one dissent to the reversal of the trial court’s decision. We considered this issue before handing down our opinion and concluded that art. XIV, § 23 of the Louisiana Constitution of 1974, provides that the proceedings in this case are to be “unaffected” by other provisions of the constitution. This section states, insofar as is here applicable, that:

All writs, actions, suits, proceedings, civil or criminal liabilities, prosecutions, judgment, sentences, orders, decrees, appeals, rights or causes of action, contracts, obligations, claims, demands, titles, and rights existing on the effective date of this constitution shall continue unaffected.

The cause of action which is the subject of this appeal arose in 1974; suit was filed December 9, 1974, tried December 13, 1974, and judgment was signed December 23, 1974. The effective date of the Louisiana Constitution of 1974 was January 1, 1975. Only the motion for appeal, filing of the appeal bond, and lodging of the appeal occurred after January 1, 1975. Since the cause of actoin which is the subject of this appeal existed before the effective date of the constitution of 1974, the appeal is not affected by art. V, § 8(B). Plaintiff does not have a right to reargue the case before a panel of five judges.

Under the Louisiana Constitution of 1921, we had the right to allow reargu-ments to five judge panels in the following eight cases recently submitted to five judges panels of this court. This was, of course, discretionary on our part. Sabine River Authority v. Pendalton Bridge Marina, 308 So.2d 420 (La.App. 3 Cir. 1975); Sabine River Authority v. Flying Bridge Marina, 308 So.2d 422 (La.App. 3 Cir. 1975); Wright v. Sabine River Authority, 308 So.2d 402 (La.App. 3 Cir. 1975); Staple Cotton Coop. Ass’n v. Pickett, 313 So.2d 612 (La.App. 3 Cir. 1975); Smith v. Smith, 311 So.2d 514 (La.App. 3 Cir. 1975); State Dept. of Highways v. Mims, 311 So.2d 914 (La.App. 3 Cir. 1975); State, Dept. of Highways v. Mims, 311 So.2d 921 (La.App. 3 Cir. 1975); Naquin v. Maryland Casualty Company, 311 So.2d 48 (La.App. 3 Cir. 1975). In this case, we elect not to exercise this option.

Plaintiff’s application for rehearing pursuant to LSA-R.S. 13 :445Q and LSA-C.C. P. art. 2167 is also denied for the reasons assigned in our original opinion and for these additional reasons.

Here is the sketch plaintiff attached to his permit application (which application, as previously noted, could have been properly denied because it failed to comply with the ordinance’s reasonable requirement that the application be accompanied by a detailed drawing).

The frontage measurements facing Pershing Street are to scale (1" = KX). Therefore the space between the two driveways is approximately two feet in width. The contention raised by the dissent that the sketch shows a ten foot measurement in this space was considered and rejected by the majority. The sketch shows arrows on both sides of the ten foot measurement, indicating that this ten feet is measured from the street to the barricades in compliance with paragraph 5(0) (2) of the ordinance, and does not show a ten foot space between the two driveways.

We find it strained and unreasonable to interpret the phrase “distance between the inner edges . . . shall be not less than ten (10) feet” to mean that the minimum width of each driveway must be ten feet, for two reasons. First, pages 5, 13, and 15 of both the Department of Highways “Standard Plans for Driveways” and the New Iberia Police Department’s “Standard Plans for Driveways” shows the ten foot distance in question is the minimum distance between two driveways. Second, there is nothing in the ordinance and in the sets of standard plans to indicate that the ordinance sets minimum standards for the width of a single driveway. As to single driveways, the only standards set are the maximum width of the driveway.

Plaintiff contends that no evidence was introduced to show the purpose of having two driveways ten feet apart. We disagree. The “Standard Plans for Driveways” of both the Department of Highways and the City of New Iberia, which are in evidence, provide: “The standard driveway plans and sketches have been adopted to promote safe and orderly movement for vehicular traffic entering and leaving the highways (streets); to abolish hazardous and indiscriminate parking adjacent to the roadway surface; to preserve adequate sight distance at intersections; to encourage beautification of property frontage and to insure uniform design and construction of driveways on highway (street) right-of-way.”

For the reasons assigned in our original opinion as here supplemented, the application for rehearing is denied.

Rehearing denied.

HOOD, J.,

concurs in the action of the majority in denying a hearing by a five judge panel, but feels that a rehearing should be granted on all other issues.  