Mar 292012
 

A group of Maple Street and Carrollton-area residents who oppose an iron fence blocking traffic from entering Newcomb Boulevard at Freret Street won an initial round of their court battle this week, when a Civil District Court judge ruled that the street was closed improperly.

Construction of the fence was unnecessary and ignored a traffic study that suggested other options, and was done without proper authority — the decision should have been made by the City Council, as in similar cases, the judge ruled. His order allows time for the Newcomb residents to appeal his decision, however, and their attorney vowed to do just that in an interview with The Lens.

Below, find an email announcing the judge’s decision from plaintiff Keith Hardie:

On Tuesday, March 27, Judge Michael Bagneris of the Civil District Court held that the Department of Public Works (“DPW”) did not have the authority to issue a permit for a fence across Newcomb Boulevard, an uptown street running between St. Charles and Freret St.

The suit was brought by two area residents, Derek Huston, a musician, and Keith Hardie, a lawyer and neighborhood activist, and two neighborhood organizations, Maple Area Residents, Inc. and Carrollton Riverbend Residents Association against the City and the Newcomb Boulevard Association (“NBA”).

The decision granted Plaintiffs’ Motion, which had called for an injunction ordering the City to remove the fence at the intersection of Freret St. and Newcomb Blvd. and to restore the street to its former condition. The Court found that under the City Charter, the power to close streets belongs to the City Council, and that the permit granted by the Department of Public Works for the closure violated the Council’s authority to control changes in streets. He also held that the closure of the street, for which the City received no payment, violated Louisiana Constitution Article VII, § 14, which prohibits the donation of public property to “any person, association, or corporation, public or private.”

The Court found not only that the issuance of the permit was beyond the power of the DPW, but that the DPW had ignored the recommendations of a city-financed traffic study. That study, conducted by Urban Systems, Inc., had determined that the cut-through traffic complained of by Newcomb residents was not excessive and recommended “speed humps” as a possible solution. The study did not recommend or even consider closure of the street as a remedy for Newcomb residents’ complaints.

Judge Bagneris held that Shires’ permit, issued in a one-page letter, demonstrated “the lack of any critical analysis of the cost/benefits of closing Newcomb Boulevard at Freret Street and its impact to all New Orleanians.” (Italics in original.)

Judge Bagneris held that a comparison of the procedure followed at Trianon Plaza, another street for which residents had requested closure, with that of the Newcomb closure, made the “abuse of power . . . crystal clear.”

BACKGROUND

The closure of Newcomb Boulevard occurred in the darkest days after Katrina, when the City Government was in shambles. In late 2005, then Councilman Jay Batt’s office contacted the then Director of the DPW, John Shires, asking him to assist the residents of Newcomb Blvd., who had been trying to close the street since at least 1990. Those requests had always been rejected.

On his last day a work, Shires issued a permit authorizing the Newcomb Boulevard Association to close Newcomb Boulevard at its intersection with Freret. No studies of the effect the closure would have on other area streets had been prepared, no public notice allowing for area residents to comment had been issued, and no hearings before the City Planning Commission and City Council had been held. After receiving the permit from Shires, NBA erected a fence across the street at its intersection with Freret, stripping the public of its right to use the street to travel from one point to another.

Less than a year before Newcomb was closed, residents of another area street, Trianon Plaza, had asked for a similar closure. There, DPW had insisted that, as a condition of the closure, the residents of Trianon would be required to purchase the public right of way, assume maintenance of the street and pay for electrical service to the street lights. After a study and finding by the DPW that the closure of Trianon would not adversely affect local traffic, there were public hearings before the Planning Commission and City Council, and Trianon residents paid $ 97,000 to purchase the public right of way.

However, DPW did not conduct similar studies in connection with the Newcomb closure, nor did Shires require the residents of Newcomb Blvd, where property values are significantly higher than on Trianon Plaza, to pay anything to the City for the right to close the street. Unlike the procedure at Trianon, public notices were not issued and no public hearings were held regarding Newcomb.

Plaintiffs’ suit “was about process, open government, fairness and progressive urban planning principles,” said Keith Hardie. “We hope Judge Bagneris’s decision will encourage orderly processes, including proper traffic studies, public notice and public hearings before public streets are closed, and that never again will a street be closed on the basis of a request from a Councilmember’s office to a City bureaucrat. Progressive urban planning principles mandate that gated communities and dead end streets be discouraged, and that the public street grid, which is characteristic of the older parts of the City, should be kept open. Problems should be corrected on a neighborhood basis, rather than residents barricading themselves in suburban-style cul-de-sacs.”

Plaintiffs hope that appeals can be heard quickly so that traffic congestion at the intersection of Broadway and St. Charles, which is exacerbated by the closure of Newcomb Boulevard, can be relieved. With the advent of the new Tulane stadium, it is important to keep area streets open so that congestion can dissipate quickly.

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