Neighbors First for Bywater – Special Meeting – June 2, 2019

Present: Julie Jones, Anthony Eschmann, John Andrews, Brian Luckett, Tyler Harwood, Michael Owings, Nancy Thacker, Mark Gonzales, and Allen Johnson, President of Faubourg Marigny Improvement Association. Andrew Jacoby, an attorney that has been working with NFB, was also in attendance, along with near neighbors Joe Brown, Alisa Cool, and Judy Bolton.

John Andrews gave the group a brief recap of what has happened so far. City attorneys told the HDLC that they have no jurisdiction over publicly owned properties, such as HANO lots. The ARC wrote several reports that were not in favor of the submitted plans. Ultimately it went to on to be reviewed by the full HDLC commission and they made no decision regarding approval of the project because they had been told by the City Attorneys that they had an advisory role only. NFB filed an appeal to City Council regarding the HDLC’s decision not to vote on a Certificate of Appropriateness on the basis that the buildings on the lot would be privately owned and operated and should therefore not be excluded from HDLC oversight. The Clerk of Council responded stating that our request to appeal the decision was not valid because there was no decision by the commission to appeal. The ordinance regarding HDLC jurisdiction in these kinds of cases is unclear. HANO-selected private developers plan to build homes on the “scattered sites” around Bywater and Marigny and other historic districts, and these homes will in turn be sold, and the HDLC is not being allowed to consider the design on any of those either. The general feeling is that HANO is brushing off our concerns regarding this subversion of the HDLC and the city is content to avoid getting involved.

Andy Jacoby discussed language in the ordinance that states “anyone who causes construction” has to get a Certificate Of Appropriateness. There is a separate ordinance that says private buildings and structures require a CoA. There is also a line that says certain government bodies have to go to HDLC for “advice”.  As we have seen, this doesn’t necessarily mean they have to follow said advice. The law doesn’t address what happens when a private entity plans a project on public land. Andy thinks our argument would prevail in court, but it’s not a “slam dunk”. The City would likely try to throw the case out since there is technically no HDLC decision to appeal, but would be appealing their decision not to act. State laws set the framework in which the HDLC exists, which was created through municipal ordinances. State laws make the same distinctions between private and public developments, but leave the same gray area when it comes to privately owned structures on publicly held properties. It seems that HANO intends to continue to take full advantage of their perceived immunity in these cases.

It is not clear how the new Planned Development designation, which City Council has recently written into law, will address the involvement of the HDLC as the HANO/ITEX project goes forward. It was inferred that the project would go through the HDLC’s Architectural Review Committee and staff once again, and then on to the City Planning Commission Design Advisory Committee for approval. Further review of the Planned Development process is needed. If concerns regarding HDLC oversight are adequately addressed it may affect the viability of a lawsuit based on this particular development.

Andrew suggested the possibility of filing an injunction to prohibit the issuance of a building permit. There are records of successful cases of this kind. If a permit is issued in error it turns into a different argument. The deadline to file a lawsuit would technically be 30 days after an HDLC decision, but once again it could be argued that there was no decision, or that since the project is now a planned development the issue is irrelevant. There was some question if the deadline would be from the HDLC decision not to act or the City Council vote on the zoning change. Reviewing the motion that was voted on by City Council is necessary. It was noted that the HDLC decision not to act and the City Council vote to grant the modified zoning change are two separate issues. The efforts to circumvent HDLC’s authority has implications city-wide and sets a precedent. Regardless, we had a better case and clearer argument before the City Council’s decision to create a planned development. There is concern how the planned development process will work. All interested parties are essentially guinea pigs since the process is so new and the guidelines are uncertain. The ARC is a part of the process but their authority is still in question, and whether or not the project would need to be approved by HDLC staff. Depending on those factors there could be another opportunity to appeal the outcome or file a suit. Going to court could have unintended results, as it did when the FMIA wound up with added height increases by right and no affordable housing that they wanted in the Riverfront Overlay.

Mark Gonzales suggested that in addition to a suit regarding subversion of HDLC oversight we could consider challenging the decision of City Council to modify the zoning request at the last minute. Neither supporters or opposition to the zoning request had time to understand the planned development process before the Council voted on it. Brian Luckett pointed out that regardless of process we should be grateful we got a compromise. He asserted that any suit would be regarded as obstructionist, and would invite further scorn from affordable housing advocacy groups, since they would errantly perceive it as another attempt to stop affordable housing from being built. It could also undermine the opportunity to work effectively through the planned development process, and would be discourteous to Councilmember Palmer since she and her staff were trying to give us what we asked for. Michael Owings reminded the group that HANO and ITEX did not get the HM-MU zoning change and if they had they would have proceeded with no regard for the concerns of the community. Reviewing the Planned Development process is necessary before considering any legal action.

There was further discussion on potential deadlines for filing a suit. The law isn’t clear. Mark again voiced his disapproval of the last minute modifications to the zoning change and our lack of an opportunity to study what it means. John Andrews suggested we pick our battles, and we wouldn’t be doing ourselves any favors by opposing the process at this point. However, if there is nothing in the planned development documents legally requiring ARC approval and a CoA from HDLC staff he would be in favor of an injunction. [A near neighbor] asked if there was a chance that filing a suit regarding ambiguity in ordinances defining HDLC’s jurisdiction may result in the law being changed in favor of developers, or result in losing the opportunity to participate in a Planned Development process. Andy said it would depend on the judge, but it would help if other organizations like FMIA or Louisiana Landmarks Society sent letters of support. Allen Johnson told us more about the FMIA law suit regarding the Riverfront Overlay, which they won but ultimately ended with negative impacts because they ran out of funding. He suggested that if we did decide to file a suit to be sure we have funding to see it all the way through. Filing a suit could result in the process starting all over again, and it’s not likely to go any better than it did this time. There was further discussion on the difference between suing on procedure and suing on merits. Mark again asserted that the HDLC issue and the procedural issue regarding the Planned Development designation are two separate things and should not be confused or thought of as related.

Mark moved that we file an injunction and a lengthy discussion ensued. Andrew suggested a preliminary injunction, which he hopes would force the issue, be a purely legal dispute, and not require lengthy court proceedings. Brian stated that he believes that now that the zoning has not been approved as expected the plans submitted will not meet the zoning requirements, and are no longer viable. To sue now seems like we’re suing about something that doesn’t really matter any more. John again stated the importance of studying the Planned Development process, implying that it may indicate if the argument matters or not. Brian countered that fighting for HDLC staff approval may result in them ignoring the concerns of the ARC anyway. He suggested we wait to file an appeal, if deemed necessary, until after the HDLC or ARC makes a decision so we at least have something concrete to appeal.

Mark formally moved that we authorize Andrew to file an injunction challenging the City’s decision to deny our appeal pertaining to HDLC’s refusal to vote on the appropriateness of the ITEX/HANO development. John requested to amend the motion, stating we proceed only if the Planned Development ordinances do not require ARC or HDLC staff to approve the final design. Mark agreed and John seconded the motion. Two board members voted yes, four voted no. The motion did not pass, but we all agreed the discussion isn’t over. Andrew will look into the issues more closely and advise us further. If we ultimately decide to take action we need to be aware of any potential deadlines.

The meeting ended at approximately 4:50PM.

Submitted by Tyler Harwood, secretary

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