Faubourg Marigny Improvement Ass'n v. City of New Orleans

195 So. 3d 606, 2015 La.App. 4 Cir. 1308, 2016 WL 3013765, 2016 La. App. LEXIS 1015
CourtLouisiana Court of Appeal
DecidedMay 25, 2016
DocketNo. 2015-CA-1308
StatusPublished
Cited by13 cases

This text of 195 So. 3d 606 (Faubourg Marigny Improvement Ass'n v. City of New Orleans) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Faubourg Marigny Improvement Ass'n v. City of New Orleans, 195 So. 3d 606, 2015 La.App. 4 Cir. 1308, 2016 WL 3013765, 2016 La. App. LEXIS 1015 (La. Ct. App. 2016).

Opinion

PAUL A. BONIN, Judge.

h Despite years of public “listening” sessions sponsored by the New Orleans City Planning Commission and public hearings before the Commission, which resulted in a recommendation for a specified complete [610]*610overhaul of the City’s Comprehensive Zoning Ordinance, the City Council at the urging of Mayor Mitchell Landrieu substantively modified the Commission’s recommendation as it affected the distinctive Faubourg Marigny neighborhood. The neighborhood association and two of the residents of Faubourg Marigny joined in a suit to declare the adoption of the Mayor’s amendment, designated as MJL-6, invalid and to permanently enjoin its implementation. During the pendency of their suit, the plaintiffs and intervenor sought the issuance of a preliminary injunction to restrain the City “from issuing any permit or variance, [taking any action,] or authorizing in any way any activity,, under the terms of the new Section 18.13 of the City of New Orleans’ new Comprehensive Zoning Ordinance (“CZO”), contained within Amendment MJL-6 to Ordinance Calendar Number 30,367 (May 14,2015),” '

[¡¡Following a hearing on the request for the preliminary injunction, the district judge expressed dismay at the City Council’s tactics but concluded that he was bound to defer to its judgment in this matter. He thus denied the request for the issuance of a preliminary injunction. The unsuccessful parties appealed the judgment denying the request for a preliminary injunction of the judgment, which appeal is specially authorized by law. See La, C.C.P. arts. 1841, 2083 C, 3612 B.

Here, the parties principally focus their arguments on their disagreement about the plaintiffs’ likelihood of success on the merits of the declaratory judgment. Their primary disagreement is whether the City Council can amend a zoning ordinance without first referring the specific amendment to the City Planning Commission. We, however, in reviewing the denial of the request for a preliminary injunction under-an abuse-of-discretion standard, affirm the denial solely on the basis that the plaintiffs cannot show the requisite “imp-arable injury, loss, or damage”- which may result to them at this stage of the proceedings. See La. C.C.P. art. 3601'A (emphasis added).

We explain our decision below.

I

In this case, the Improvement Association1 challenges the City’s attempt to place an overlay zoning district over the entirety of the Faubourg Marigny. One of this district’s features, to which the Improvement Association vehémently objects, provides that a developer who adheres to certain specified design criteria will [..¡automatically qualify for an increase in the base zoning district’s height, floor area ratio, and density restrictions. While our resolution of the Improvement Association’s appeal is straightforward, we first examine the context in which it arose. We set-the-stage for our disposition of this, and any subsequent related proceedings, by first describing the City’s attempt to effect a comprehensive rezoning of all immovable property within its jurisdiction, Following this, we describe this particular matter’s factual and procedural history.

A

According to Robert Rivers, the Executive Director of the City’s Planning Commission, it was apparent to many by 2010 that the City’s then-current CZO — which was drafted in 1965 — was “woefully out of date,” and “very difficult to use.” Accordingly, the process of drafting a new CZO began in 2010 with the passage of the [611]*611City’s Master Plan. Specifically, Section' 5-402 of the City’s Municipal Code tasks the Planning Commission with preparing a twenty-year Master- Plan, which -would consist “of a statement of development goals, objectives, and policies for the physical growth and development of the City, and shall include maps and' a text setting forth principles, standards, and proposals.” Section 5-502 further called upon the Planning Commission to commence work on a new CZO that was to be consistent with the new Master Plan.

The Planning Commission released its initial draft of the new CZO in September 2011. This draft, like all subsequent ones, grafted an overlay zoning ^district onto the Faubourg Marigny’s base zoning district. The Faubourg Marigny’s base zoning designation is HMMU, or Historic Marigny Mixed Use.

The CZO specifies that overlay zoning districts are created “for the purpose of requiring special controls in certain areas of the City that have .special characteristics or special development issues.” The intent of such a district “is to provide common controls over areas that require a specific type of zoning control but are typically zoned with more than one (1) base district.”

The purpose of the Riverfront Overlay District — the overlay district encompassing portions of the Faubourg Marigny — is “to preserve, create and enhance public views of and access to the Mississippi River and creatively encourage the use of and visual access to the riverfront by encouraging the development of a riverfront promenade, including connections to nearby public rights-of-way, open space and other public amenities.” This overlay district “establishes standards to guide a process to encourage new riverfront development to occur in a manner than minimizes substantial change to existing public views of ■the riverfront from adjacent public streets and neighborhoods, and enhances the existing riverfront promenade by encouraging a continuous public access along nonindustrial portions of the City’s riverfront between Jackson Street- and the Industrial Canal.”

The September 2011 version of the CZO defined the Riverfront Overlay District accordingly: “Esplanade Avenue to the Inner Harbor Navigation Canal, from the Mississippi River to Decatur Street/Charter Street (includes lots fronting lKon both sides of Decatur Street and the entire Hebert Naval facility at Poland Avenue).” The draft further provides numerous design standards touching upon general policy issues, protection of view corridors, the creation and maintenance of a riverfront promenade, and regulations governing development along the land-side of the flood-wall. The 2011 draft of the CZO also provided for the creation of riverfront gateways. The draft explains that “[e]er-tain nodal areas along the riverfront act as gateways to the riverfront and should improve the pedestrian environment through special design features.” The 2011 draft provided that the gateways were “to have effect in a two (2) block direction-from the identified access nodes at Elysian Fields Avenue, Press Street and Poland Avenue.” Significantly, a gateway area development that incorporates specified “superior design features” may qualify the site to an increase in the fifty-foot height limit up to seventy-five feet, “subject to .administrative site plan approval.” Following the release of the 2011 draft CZO, the Planning Commission held several public hearings in neighborhoods around the City, including one in the Faubourg Marigny which was attended by Improvement Association members.

The Planning Commission released a second draft of the CZO in September [612]*6122013. This draft left unchanged the definition of the Riverfront Overlay District, but altered the areas comprising the riverfront gateway: “Gateway areas are defined as the intersections of Poland Avenue, Ma-zant Street, Piety Street, and Press Streets with Chartres Street, and the intersection of Elysian Fields Avenue with North Peters Street.

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Bluebook (online)
195 So. 3d 606, 2015 La.App. 4 Cir. 1308, 2016 WL 3013765, 2016 La. App. LEXIS 1015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faubourg-marigny-improvement-assn-v-city-of-new-orleans-lactapp-2016.