ROSEMARY LEDET, Judge.
This case involves the denial of a conditional use permit. From the trial court's November 14, 2019 judgment granting a writ of certiorari and ordering the City Council to hold a final vote and to adopt a proposed ordinance issuing the conditional use permit, the City of New Orleans (the "City") and the City Council (the "Council") appeal. On appeal, the City and the Council also request costs. For the reasons that follow, we reverse the trial court's judgment and remand the request for costs.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of this appeal are not disputed. River Street Ventures, L.L.C. ("River Street") seeks to construct apartment buildings on three vacant properties located on the riverfront in Algiers, Louisiana (collectively, the "Properties").1 The planned apartments, due to the location of the Properties, are subject to height and density restrictions under the City's Comprehensive Zoning Ordinance ("CZO").2 The height and density restrictions may be exceeded, but only by obtaining a conditional use permit.3
To obtain a conditional use permit, the property owner (or an authorized agent) generally must apply first to the City Planning Commission (the "CPC").4 The CPC, after considering the application, will forward it with a recommendation to the Council.5 The Council will then determine whether to adopt an ordinance authorizing issuance of the permit.6
Because River Street's planned apartment buildings exceed the CZO's height and density restrictions, River Street applied to the CPC for a conditional use permit. No majority of the CPC members, however, could agree as to a recommendation. Accordingly, the CPC forwarded the application to the Council with a "no legal majority" recommendation.7
River Street's application was presented to the Council on April 19, 2018. The same day, the Council adopted a motion of modified approval of River Street's application (the "Motion").8 Accordingly, River Street's application was referred the City's Law Department for the drafting of a proposed ordinance (the "Ordinance").9
The Ordinance was subsequently introduced at a Council meeting on May 3, 2018.10 After the required delay, the Ordinance was, on several occasions, placed on the Council's agenda; on each occasion, however, a vote on the Ordinance was deferred. Ultimately, the Council did not vote on the Ordinance within the statutory time period—effectively denying River Street's application.
On July 20, 2018, River Street filed in Orleans Parish Civil District Court a "Petition for Writ of Mandamus, or Alternatively, Petition for Writ of Certiorari and for Judicial Review of the Action Taken by the City Council in Deferring the Ordinance," naming as defendants the City and the Council. In the petition, River Street contended that the Council, having adopted the Motion, was required, under CZO, Art. 4, § 4.3.D.4(c), to adopt the Ordinance. River Street further contended that the Council's failure to adopt the Ordinance constituted a violation of a ministerial duty required by law and was, thus, arbitrary and capricious. The City and the Council opposed the petition, arguing that, notwithstanding adoption of the Motion, the Council retained legislative discretion as to the Ordinance and, thus, was not required to adopt, or even vote on, the Ordinance.
On November 14, 2018, the trial court, reasoning that "the Council by its own law was required to vote and vote affirmatively to ratify [the] Ordinance," found that "the Council acted arbitrarily and capriciously by both failing to pass the proposed ordinance and refusing to even vote on it." Accordingly, the trial court ordered the Council to "hold a final vote on [the Ordinance] [and] to adopt and ratify it within forty-five (45) days of the signing of th[e] judgment." This appeal followed.
DISCUSSION
The dispositive issue in this appeal is whether, with respect to a conditional use application, the Council's adoption of a motion of approval, or modified approval, requires it to adopt an ordinance granting the conditional use. The City and the Council contend that this court decided that issue in Commodore v. City of New Orleans, 19-0127 (La. App. 4 Cir. 6/20/19), 275 So.3d 457. We agree.
In Commodore, as in this case, a developer applied for a conditional use permit;11 the CPC issued a "no legal majority" recommendation; the Council adopted a motion of modified approval; the City's Law Department drafted a proposed ordinance; and the proposed ordinance was introduced at a Council meeting and denied. The developer sought review in the trial court. Finding that the Council, having adopted the motion, was required to adopt the proposed ordinance, the trial court ordered the Council to do so.
The City, the Council, and the Councilmembers, individually, appealed. This Court reversed, reasoning as follows:
A vote to approve [a] motion does not legally bind the City Council to then affirmatively adopt an ordinance as final. Although the last sentence provides the City Council shall adopt the ordinance ratifying the decision within ninety days from the date it acted on the motion, the previous sentence provides the City Council may adopt it after a minimum of twenty-one days from when the City Council approved the motion. Reading the sentences together and in reference to each other, as the rules of interpretation provide, we conclude that the last statement of the CZO Sec. 4.3.D.4(c), sets forth a time period for which the City Council must vote on a proposed ordinance and does not obligate that the City Council to accept it. Otherwise, the second sentence of CZO Sec. 4.3.D.4(c) giving the City Council discretion in which it may or may not adopt an ordinance would be superfluous. A vote to adopt or deny a proposed ordinance thus is within the City Council's discretion, contrary to Plaintiff's assertions, and thus is not a ministerial duty in which a mandamus could be issued. Accordingly, the trial court erred in ordering the City Council to adopt and ratify the proposed ordinance, as it is vested in discretion. See Humane Soc'y of New Orleans v. Landrieu, 2013-1059, p. 4 (La. App. 4 Cir. 2/26/14), 135 So.3d 1195, 1197 (a mandamus is not available to compel performance that requires the exercise of discretion, "however slight").
Additionally, as discussed above, Home Rule Charter, Sec. 3-112(9) provides that votes at final passage of an ordinance shall be taken by a vote of the Councilmembers voting for and against each proposed ordinance. Sec. 3-112(10) also states that no proposed ordinance shall be adopted except by the affirmative vote of a majority of all members of the City Council. These provisions further demonstrate the City Council's authority to accept or deny a proposed ordinance. The Home Rule Charter does not mandate the City Council affirmatively vote in favor of an ordinance.
19-0127, pp. 14-15, 275 So.3d at 469.
River Street contends that Commodore is distinguishable for three reasons, none of which is persuasive. First, River Street contends that, whereas in Commodore the trial court issued a writ of mandamus, here the trial court issued a writ of certiorari. This court's decision in Commodore, however, did not depend on the nature of proceeding in the trial court. Instead, this court disposed of the case on the substantive issue presented—also presented here—whether, with respect to a conditional use application, the Council's adoption of a motion of approval or modified approval requires the Council to adopt an ordinance granting the conditional use.
Second, River Street contends that, whereas in Commodore the Council denied the proposed ordinance by a vote, here the Council denied the Ordinance by failing to vote within the statutory time period. As in Commodore, however, the issue presented is whether the Council has discretion to deny an ordinance—not the manner in which an ordinance may be denied.
Third, River Street contends that, whereas in Commodore both the motion and the proposed ordinance were considered by an identically-composed Council, here the Motion and Ordinance were considered by differently-composed Councils. The composition of the Council, however, is irrelevant to the question of whether the Council is required to adopt an ordinance once it has adopted a motion.
In sum, Commodore is not distinguishable; it is, thus, dispositive of the issue presented by this appeal. Accordingly, under Commodore, we conclude the trial court erred in ordering the Council to adopt the Ordinance.
COSTS
The City and the Council request the costs incurred in connection with this appeal. We remand this issue to the trial court. Commodore, 19-0127, pp. 16-17 17, 275 So.3d at 471 (declining a request by the City, the Council, and the Council members to assess costs; noting that "it is within the discretion of the trial court to assess costs against the parties"; and remanding the request to the trial court).
DECREE
For the foregoing reasons, the trial court's judgment is reversed. The City's and the Council's request for costs is remanded to the trial court.
REVERSED AND REMANDED.
