The controversial fence closing Newcomb Boulevard from Freret Street will be removed “without delay,” according to an announcement by the attorney for the neighborhood groups who have sought its removal for seven years.
Construction of the fence in 2006 was ruled an improper donation of public property in 2012 by former Judge Michael Bagneris, and after his decision was upheld by higher courts the following year, the Newcomb Boulevard Association sought to purchase the street. Now, city officials have decided to wait no longer, and will remove the fence immediately, according to a statement issued attorney Tommy Milliner.
The city is “complying with the court order,” confirmed Tyler Gamble, a spokesman for the mayor’s office.
For details, see the full statement below:
On Monday, the Louisiana Fourth Circuit Court of Appeal, finding “no just reason for delay,” ordered the City to remove the fence at the intersection of Newcomb Boulevard and Freret. On Thursday, Assistant City Attorney Adam Swensek said that he had “instructed the Department of Public Works to remove of the fence “without delay.”
The fence was constructed in 2006 by Newcomb Boulevard Association (NBA), after being issued a permit by then-Department of Public Works Director John Shires, on his last day of work, following a request from then-Councilman Batt’s office.
In early 2007, two area residents, Keith Hardie and Derek Huston, and two neighborhood groups, Maple Area Residents Inc. and Carrollton Riverbend Residents Association, filed suit against the City, demanding removal of the fence. NBA intervened in the suit. Though the suit has been pending for almost seven years, Plaintiffs’ attorney Thomas Milliner notes that “neither the Nagin nor the Landrieu administrations ever sought to make NBA liable for the rental value of the closed street. The fence has now been up for over seven years and – while the public has been deprived of the use of the street – no compensation has ever been demanded by the City, resulting in lost revenues in the tens, if not hundreds of thousands of dollars.”
On March 27, 2012, former Civil District Court Judge Michael Bagneris, now a candidate for Mayor, held the fence illegal because the permit usurped the power of the City Council to control public streets and constituted an illegal donation of public property. Judge Bagneris’s 2012 decision was affirmed by the Fourth Circuit on February 27, 2013 and appeals ended on May 17, 2013 when the Louisiana Supreme Court refused to hear the matter.
On July 15, 2013, after the judgment declaring the fence illegal and unconstitutional was final, NBA filed an application to purchase the street. Though an application to purchase a public street requires a current traffic study, NBA submitted only a 2004 study, claiming that an updated version was being prepared. On July 31, 2013, the City Attorney announced that, although the City had been prepared to remove the fence, the City wanted to stay the proceedings in order to allow NBA to complete its application to purchase the street. However, when the City filed a motion for a stay, it did not include any request that, in the event a stay would be granted, NBA would be required to post a bond for the value of its continued use of public property.
On October 18, 2013, in response to the City’s motion and a similar motion by NBA, Judge Bagneris stayed the matter. Milliner notes that the stay did not prohibit the City from taking the fence down, but merely stayed the proceeding, preventing the Plaintiffs from obtaining a judicial order compelling the City to take the fence down.
The Plaintiffs appealed the stay to the Fourth Circuit, asking that Court to either lift the stay or require NBA to post a bond for its continued use of public property. Though NBA was supposed to be pursuing its application, City Traffic Engineer Allen Yrle stated that, as of December 26, 2013 – over five months after the NBA filed its application – NBA had not yet submitted the required revisions to the traffic study.
In its decision, the Fourth Circuit said that, in light of the prior decisions holding the fence to be unconstitutional and state laws requiring that obstructions to public streets be “summarily” removed, there was “no just reason for delay,” and ordered a mandatory injunction requiring the removal of the fence. On January 2, 2014, Assistant City Attorney Adam Svensek stated that the City would comply with the Fourth Circuit’s latest decision and that he had “instructed the Department of Public Works to commence removal of the barrier at Newcomb Boulevard and Freret Street without delay.”
Plaintiffs’ attorney Tommy Milliner noted that, although he was pleased that the City would finally take down the illegal fence, there still remained the question as to why successive City administrations never demanded compensation for Newcomb residents’ use of public property. Plaintiff Keith Hardie, an attorney, said that while he was glad the matter was over, he was disappointed that both the Nagin and Landrieu administrations had, for seven years, defended what he felt was a clearly an illegal obstruction of public property, and had failed to protect the public’s right to use public property or to demand payment for that use. “Carrollton residents had the resources get legal representation to challenge the illegal permit,” Hardie said, “ In other neighborhoods, the residents may have to depend on the City, and this case made it clear that the City is not going to do right by them.”