Aug 042014
 
The Future Land Use Map in the city of New Orleans' Master Plan identifies a lot at Constance and Harmony as "parkland" when it is actually a privately-owned lot. (via nola.gov)

The Future Land Use Map in the city of New Orleans’ Master Plan identifies a lot at Constance and Harmony as “parkland” when it is actually a privately-owned lot. (Source: nola.gov)

Owen Courreges

In literature, typically anything with the word “master” before it is going to be something both controlling and nefarious. For example, if a science fiction novel references a “master computer,” you can bet your last credit that it is either threatening the existence of humanity, or has already wiped us off the globe.

This is why the idea of a “Master Plan” for the City of New Orleans has always been viscerally unsettling to me. It’s as though there’s some cold, unfeeling entity out there that seeks to control every aspect of using property in the city.

Gut feelings can be off, of course, but this one is not.

The city itself describes the Master Plan as “a City Charter-mandated planning framework for the core systems that shape New Orleans’ physical, social, environmental, and economic future.” The city emphasizes that the Master Plan will have “the force of law,” i.e., that it can’t be simply overridden by the a majority council vote.

That sounds a bit scary, at least to me.

The notion is supposed to be that, by creating planning rules that have the force of law, we’ll eliminate the cronyism and corruption that permeates zoning determinations. No more “spot zoning;” no more connected elites running roughshod over the zoning code.

The problem is that the cure is worse than the disease. Unless we decide to loosen zoning restrictions (and that doesn’t seem to be on the table), there are always going to be times when imposing a particular restriction seems to be too onerous and doesn’t serve the public good.

Put simply, imposing a zero-tolerance, “the law is the law” mindset eliminates a necessary safety value from our highly restrictive system of zoning.

The basic concept of the Master Plan was adopted in 2010, but we have yet to implement it by enacting a new comprehensive zoning ordinance. Still, the Master Plan is already being invoked to oppose any council approval of plans that depart from zoning restrictions.

Moreover, a proposed zoning ordinance is already in its final stages. Unsurprisingly, it’s awful. If anything, it strengthens existing zoning restrictions further and fails to properly zone longstanding uses. Those corner businesses, sadly, will still be nonconforming. The need for commonsense exceptions (i.e., the dreaded “spot zoning”) will be even more apparent.

Case in point: This week, a preliminary meeting of the Historic District Landmarks Commission’s Architectural Review Committee was held to discuss the development of the empty lot at the corner of Constance and Harmony Streets. The lot is easily mistaken for a park, as for decades the owner, Ruppert Kohlmaier, has allowed locals to use it as such.

But Kohlmaier’s father bought the land years ago from the Orleans Parish School Board after the demolition of the former school building there, and it is unquestionably private property. The open space has persisted solely as a result of the charity of Mr. Kohlmaier. Alas, due to multiple threats of lawsuits, Kohlmaier was subsequently forced to obtain liability insurance for the lot and eventually closed it off altogether.

Although residents at the HDLC meeting lamented the loss of open space, Kohlmaier made no bones about his right to develop the lot. “‘Save the park.’ What park?” Kohlmaier said. “There’s no park. It’s Mr. Kohlmaier’s personally owned piece of ground.”

Somebody should tell that to the Planning Department.

The new proposed Comprehensive Zoning Ordinance rezones the property from B1-A to park space. One might suspect the zoning change was inadvertent if not for the fact that the prior zoning designation would have unequivocally announced to anyone contemplating a change that it was private land. Of course, I don’t rule out the possibility that the new proposed zoning maps were literally designed by somebody simply driving around and eyeballing properties without the benefit of a single scrap of reference material.

There’s your “Master Plan” right there. Should illegal zoning changes be given “the force of law?” Should laudable charity cause property owners to suffer severe economic loss?

It’s somewhat understandable for private citizens to mistake that private land for a park, but we expect the government to know better than that. If it doesn’t, surely it shouldn’t be hamstrung, even if only theoretically, from correcting its mistakes by a zero-tolerance planning scheme.

My suspicions have been confirmed. It seems to me that the Master Plan is really a magnificent farce.

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.

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  • Joanne Hilton

    Once again, we agree. Many years ago, I was in a “planning meeting” for wholesale zoning changes, where a well-connected “community leader” in the LGD simply said something like this “If I take this red pen and extend the residential line straight down this way it will make the MAP look more symmetrical” (or some other such nonsensical justification) “and thus eliminate this stretch of commercial zoning.” That was MY ox he was goring, and it took a protracted fight to keep the stretch commercial (but with new limitations), an effort for which we shouldn’t have had to expend our limited time away from our 24/7 business. It has come up yet again, in the new zoning, I might add.

    • Owen Courrèges

      Joanne,

      You see, that’s the problem with these strict zoning laws. A property owner is directly invested in the development of their land and its use. Their neighbors, on the other hand, have a very minimal interest, both individually and collectively, aside from preventing a public nuisance. Accordingly, neighbors generally argue over trivial matters and try to keep everything out aside from single-family residential. Everything else is grovelling and scraping.

      Even then, having a neighborhood organization talking about making the “map look more symmetrical” is more that merely objectionable; it’s beyond the pale. At that point you’re dealing with an irrational law, and even the police power upon which zoning is based doesn’t extend to that. It’s like there’s absolutely no recognition from these people that property rights even exist.

    • Deux amours

      Your complaint is different. Yes, a property owner may lose a debate about a zoning designation for his property. Usually, grandfathering protects the owner’s current use until the owner wants to do something different. One does have to take time as a property owner to keep track of these things and to speak up when someone proposes to gore one’s ox.

  • david

    Agreed. Zero tolerance laws are dumb.
    On another note you said “It’s somewhat understandable for private citizens to mistake that private land for a park, but we expect the government to know better than that.”
    In regard to assessment of property values in the city it seems from my experience of reading about under assessed properties on the Assessor’s website that the opposite is true: citizens can spot an under assessed property much easier than our Assessor.

    • Owen Courrèges

      david,

      I honestly think that Williams is refusing to raise assessments because the City Council seems to ready to pounce to “roll forward” millages in response to any widespread reassessments. He just doesn’t want to take the blame for it; keeping assessments low keeps voters happy. It’s the path of least resistance.

      I can at least understand the assessments as spawning from less-than-noble political concerns. The rezoning of this lot seems to spawn more from stupidity.

  • Deux amours

    If this was the only error on the document, I would think that was good work.. I gather the mistake has been corrected or soon will be. I don’t support “zero tolerance” as a policy for most anything, and I think even a designation in the Master Plan or CZA can be changed.

    • Owen Courrèges

      Deux,

      I don’t think this is the only error. As I said, the draft CZA largely keeps the old errors intact, leaving corner businesses as nonconforming uses. As I’ve looked at it I’ve also seen some other bad changes and retentions; I recall that they’re proposing having a zoning boundary across the middle of Lee Circle, and sure enough, Circle Bar is on the wrong side to have live music as a permitted use.

      The Master Plan can only be changed once per year, and the new CZA rules are (as I understand it) supposed to be implementing the Master Plan. Thus, the opportunity to correct errors is limited, and I generally think that the idea of removing the city council’s ability to make case-by-case determinations is a bad idea.

      • Joanne Hilton

        Yes, the opportunity to correct mistakes is limited, and onerous.

    • Joanne Hilton

      The “Master Plan” incorrectly designated about 8 blocks of a commercial strip of Prytania in spite of the fact that it was brought to the attention at meetings and in writing every time the opportunity presented itself. Later, when the consultants who helped with the project were asked why it never stayed corrected, one admitted that there was insider pressure brought to bear to keep the “mistake” in place. So, when the new zoning draft was presented, guess what it showed? The fight continues.

      • Roland Solinski

        It’s ridiculous that Prytania is shown as residential from Thalia to Polymnia, despite the fact that several bed-and-breakfasts, a catering operation, a laundromat, an accountant, and several other businesses operate in this stretch. The laundromat was essential when I lived nearby, because my landlord didn’t provide a washer/dryer and I couldn’t afford to buy my own. The other businesses were also great neighbors, and I’d love to see more businesses join them as Prytania gets developed.

  • Deux amours

    I don’t know what definition “master plan” has in the law or with land-use professionals, but to me the term is used nowadays contrary to common parlance. A master plan is not a final plan, and they are polar opposites. The idea that the city’s master plan or zoning laws cannot be changed once adopted is too much like Ulysses being tied to the mast. An unchangeable law surely is a weird animal, and it may be a legal impossibility. People do get confused and even Stacy Head got tripped up with this recently. The point is to promulgate a rule for guidance to the public and to establish burdens and presumptions for those who think they have a new and better, or even corrected, plan for their property.

    • Owen Courrèges

      Deux,

      If that were true, no Master Plan would be necessary. We already have a system where the zoning is presumed to be correct, and you have to go through a long process to get it changed, first through the CPC, and then before the full council. Did anybody really think that was too easy?

  • http://www.brottworks.com/ Andy Brott

    Would be easy to jump on this jack of all, master of non bandwagon- as much of the Master Plan has master flaws written by master expert fools. But we get government we deserve so I advocate for solutions.
    There is Roberts Rules of Order http://www.robertsrules.org/
    I wish there were similar rules that forced planners, designers, engineers to listen to, and do what best for the real experts on any given neighborhood- i.e. those who live, work and play in the place where the rules are written for and possibly enforced.
    Some call it placemaking,
    http://www.pps.org/reference/what_is_placemaking/
    Others?
    Me? I call it Jane Jacobs or JJ 101- and know we need change from our badly antiquated and seriously flawed status qou. Master Plan? I think less is more, i.e look what we did on Freret, but unlike the neighborhood input we had 2007/8 when a AC overlay was crafted- I felt locked out in the Master Plan, and gave up wasting time being lectured at by highly paid out of town “Experts” on how great something worked in Boston and how the same here would work here. Damn i’m sick of their BS and their Street Cars to nowhere, death trap Bike Lanes and screwed up RTA.
    http://rideneworleans.org/state-of-transit/
    Good Job Mr. Courrèges- but please also put your $ where your mouth is and run for office (Assessor?) when Stacy Head hopefully runs for Mayor in 2018.
    We need you both…
    Best from 5110 Freret,
    Andy Brott

  • Owen Courrèges

    Deux,

    The thing is, the “Master Plan with the force of law” trope is supposed to actively prevent the council from changing zoning restrictions (other than once per year) that were enacted in accord with the Master Plan. You might be correct if the restriction is imaginary (and I’m willing to grant that it might be) but it’s a disturbing notion to me.

    As for the competing interests, we’ve discussed that before and I think you know I believe that they tend to me minimal and petty in nature, but I think we both agree that those interests have ample opportunity to be heard already without the benefit of the Master Plan.

  • Owen Courrèges

    Deux,

    As I understand it, the Master Plan could only be repealed through another city charter, and it can only be changed once per year. The problem here is than once they pass this new, “Master Plan” CZO, any individual changes might spur a lawsuit to overturn the council. Believe me, I’ve already heard the grumblings.

  • Owen Courrèges

    Deux,

    To my knowledge, nobody is putting their money where their mouth is on this.

  • http://www.brottworks.com/ Andy Brott