Jun 132016
Owen Courrèges

Owen Courrèges

“These modern verandahs . . . afford a perfect shelter from the sun and weather, to passers by the front of the houses to which they are attached. In sultry climates, the necessity of shade from the sun, to health, and comfort, has universally introduced the custom of balconies or verandahs; which in this respect, are equally beneficial to the inmates of the houses, and to wayfarers.”

Durant v. Riddell, 12 La. Ann. 746, 747 (La. 1857)

“It is a matter of public and judicial history that galleries, or ‘verandas,’ as they are also called, have been sanctioned by usage in New Orleans almost from time immemorial.”

Lambert v. American Box Co., 144 La. 604, 611 (La. 1919).

An iconic feature of New Orleans architecture, particularly in the French Quarter and present on most historic commercial strips, is the wrap-around, double-balcony – also called a “gallery” or “veranda” – that extends over the sidewalk. They serve not only as an attractive architectural element and to provide outdoor space for the owners of homes and commercial buildings, but they also shield passers-by on the sidewalk from the elements, thereby providing a public good.

As the foregoing excerpts from Louisiana Supreme Court opinions demonstrate, public policy has long favored such balconies for precisely those reasons. Indeed, only an absolute fool, a destroyer of all things New Orleans, would dare launch an attack on something as innocuous and essential to the city as the overhanging balcony. Surely, one would hope, no such person exists?

Enter Mayor Landrieu.

In an utterly unprecedented move, Mayor Landrieu recently began to require property owners to sign lease agreements for the “air rights” to balcony features that encroach on city property, leases that can cost upwards of $4,000 per year. The agreements are normally required before a property owner can obtain necessary inspections or building permits.

What this means is that property owners are confronted with two equally-perverse incentives: 1) to not build or retain their galleries; and, 2) to refuse to cooperate with the city in securing building permits for any work performed.

Predictably, advocacy groups and sundry neighborhood organizations are up in arms. “It’s part of the fabric of the city. It doesn’t make sense to penalize people for that,” said Meg Lousteau, head of the Vieux Carre Property Owners and Residents Association (VCPORA).

Although we’re rarely on the same side of any issue, VCPORA has a point here. Landrieu’s policy makes absolutely no sense, except in a single regard – it generates revenue. One of the first tricks Landrieu learned was to task his departments to increase revenues from fines and fees through creative means. Agencies have become less reasonable and more greedy under his direction.

This arguably led to Landrieu’s legendary crackdown on live music, which apparently resulted from a spate of random checks designed to extort money from alcoholic beverage outlets. It may well be that shuttering music venues was actually incidental; the true goal was to generate revenue through enforcement. A timely crackdown is a tried-and-true means of extorting quick cash.

We’ve seen it again with Landrieu’s drive to increase parking meter rates and regulate short-term rentals, the former of which has burdened service industry workers, and the latter of which burdens renters. His goal is never to serve the public good, at least not directly. No, the overarching goal is always to filch more money from a cash-strapped public. Revenue is a goal unto itself.

Of course, Landrieu is not forthcoming about his agenda. No, he comically claims that the his de-facto “balcony tax” – the latest iteration of his lust for revenue – is not his fault at all. According to him, his hands are tied by state law.

“We are required by the La. constitution to receive fair market value for the use of public property, including air rights, in addition to keeping the public safe, and establishing liability for encroachments on the right of way,” said Landrieu spokesman Hayne Rainey in response to questions concerning the balcony tax.

This is flatly ridiculous. No state law requires the city to enter into leases whenever a balcony extends over a sidewalk. That has never been required in the whole of Louisiana history. In most cases, these balconies have been around for over a century, and in some cases they probably predate the public sidewalks they cover. Real rights have likely vested under Louisiana law in some fashion, if only given the length of time for which the “encroachment” has existed. Even if they do not, the city could grant a legal servitude at minimal expense, as was previously the prevailing practice.

Likewise, the city could easily solve any potential liability issues by simply requiring landowners to sign indemnification agreements. The idea that liability is truly a concern of the city is laughable, however, given the poor maintenance of New Orleans sidewalks and the vast number of unpaid verdicts that have been racked up. If the city doesn’t want to pay, it simply won’t.

Landrieu’s excuses are thus a distraction. The real bottom line is that Landrieu’s hunger for creative financing is indifferent to the New Orleans institutions it attacks. Today it’s an essential architectural element, a classic design that is not only historic and beautiful but also benefits the public. Tomorrow it could just as well be red beans and rice.

If Landrieu could unilaterally enact a “bean tax,” I assure you, he’d consider it. Hopefully that doesn’t give him any ideas.

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.

  21 Responses to “Owen Courreges: Mayor Landrieu’s new tax on very old architecture”

  1. Owen, often I don’t agree with you…very often. However, this ludicrous taxation is the one shining example I believe of the single item that all can agree upon. It could be the great uniter that is so hard to find today. Will people begin to tear off balconies as the Irish tore off the roofs of their great manor homes when taxed on “covered property by the foot”? I’ve often been on the fence with Landrieu’s choices of what to tax and how much but I think he just fully (and stupidly) has shown that he cares not for the people and is about pure greed here and has made a grave mistake. This is the move of an absolute scum. From the poorest owner to the richest, all will be stolen from for absolutely no reason other than to put money into the mayors hands. Meanwhile, the roads are the worst in the country and everything that the city and the Mayor is responsible for , lighting, sidewalks, signage, crime, homelessness, etc.etc. goes unchecked and he is a ghost.
    Owen, you are a lawyer. Is this not the one case that a class action type of suit would be appropriate for? Can you name a single source outside of the Landrieu and his office that stands on his side?
    I cannot imagine a single suit that more people would agree upon.

  2. Ha, ha! Very good, Owen! Like some legendary New Orleans vampire, Landrieu’s unabatable thirst for revenue is bleeding the city’s residents dry. Allowing the ranks of the NOPD to shrink then trying to pick the pockets of the taxpayers to restore them was a classic Landrieu dodge. At least the voters could stymie that cash grab at the ballot box.

  3. How can one not miss Ray Nagin after over 6 years of the Landrieu administration?

  4. Owen, another good commentary. Landrieu is yet another example of how politicians lose their usefulness after 4 years in office. With a few exceptions, most mayors, governors and presidents also follow this rule. Landrieu’s policies and proposals over the past year have been very divisive and destructive. Without a doubt he is now doing far greater harm than good to our city and its people. He needs to just resign.

  5. What an utterly deplorable job he has done in his 2nd term of office. I though Jindal’s 2nd term was as bad as it could get, but Landrieu’s is possibly worse.

    • He and the rest were doing just as deplorable job in the first term as well. The people of New Orleans just didn’t care enough to vote them out of office because they decided to get ready for the Super Bowl (day after primaries) or check out a parade (day before general election) instead.

  6. Two more things someone needs to report on:

    1. The Landrieus own or control properties along major throroughfares, including Bourbon Street, with balconies overhanging the sidewalks. If there isn’t solid documented proof that those properties are current on their air rights fees and were the first in the city to voluntarily start paying them before Mitch tried to conn anyone else, his head should roll all the way to Oakdale!

    2. Mitch wants to charge property owners for usage of the air above sidewalks that he has been claiming since he came into office are the responsibility of and have to be paid for by those same property owners:

  7. I agree that anything that discourages restoration of these verandas is a bad thing. It is unfortunate that there is one property owner in particular in the French Quarter who has taken great offence to folks locking their bikes on public property to the poles supporting the veranda. Vandalism of locks and bikes with glue is his MO.

    No, he does not run a cafe, and the public space does not have some “higher use”. So I’m quite unsympathetic to him in particular, but Mayor Landrieu’s new tax source does not seem to be a longsighted policy.

  8. Outrageous.

  9. Another perfect example of our Mayor wishing to “have his cake and eat it too”. The following sentence is taken directly from the City of N.O. website:

    “Maintaining a sidewalk in a proper state, free from hazardous conditions is the responsibility of the residential or commercial property owner. Property owners can be billed by the City for installation or paving of a sidewalk if it is in the interest of public safety for the City to make such a repair.”

    So, the city’s own written policy has transferred responsibility and liability for the sidewalk to the adjacent property owner, by vesting the property owner with the responsibility of installing and/or maintaining the sidewalk. Thus the property owner is also vested with control of the air rights over the sidewalk he required to maintain and/or install by city policy. Please, someone or some group(s) needs to file suit ASAP to stop this latest action by the mayor.

  10. Balconies are small potatoes. They need to tax all the trees that hang over public property. A lot more fleecing that way.

  11. I was furious when the mayor declared war on antique sculpture decorating our city…but now he’s threatening the very architecture that defines us. I voted for this guy, and now I absolutely detest him.
    I live Uptown, outside of the HDLC purview, in a former corner store with a wrap around metal roof which covers the sidewalk as it has for over 90 years. If proactive wisdom gave way to respect for history, I’d remove that charming albatross so as to keep from paying the price years from now when my home needs work…but that would be so senseless! I’m a steward of this historic property, and as such, it is my responsibility to keep it beautiful, intact, and relevant. But the mayor has me wanting to get out there this weekend and remove it all together.
    This is outrageous, and he must be stopped. He’s as destructive as Formosan termites and as despicable as a roach on the wall. He won’t stop until this place looks like Cleveland.

  12. Can this city possibly survive the rest of Landrieu’s term?

    • Can we survive the next Mayor the “machine” will anoint to run? This Mayor will have to contend with all of the faux pas Landrieu has made. We will have to see hiring and directives from the NEW administration to once again build up the enforcement in EVERY Department. People are aware of his destruction of NOPD but are they aware of the enforcement arms of the Safety and Permits and Zoning…no not until they present with a problem that wont be addressed. Parking across sidewalks, illegal driveways, building without permits, using front yards as parking lots etc ALL QUALITY of life issues that drive down property values. We have a influx of bike riders going the wrong way and we have an uptick in ppl driving down the one way streets because its more convenient….because of the lack of enforcement in all areas we no have a city that is looking like a bombed out moon scape..due to ppl driving over burbs and killing the grass… WHAT ARE WE TO DO! First off get a REAL MAYOR…not the next in line to be anointed by the past!

  13. I view this as both another one of his attacks on Southern culture and another one of his Democratic party tax increases. Unfortunately, he has no opposition. Why do we have to wait until after his term for him to go to prison, when every couple of months he announces some sinister new plan to ruin the city a little more?

  14. With the meter maids and traffic cameras…..we now have pseudo “toll roads.”

    Now….. They are trying to have toll sidewalks. Residents are being bled dry.

  15. We bypassed Detroit a few years ago…been there lately? We have …and it makes Canal st look like a ghetto… The main street Landrieus tourists (his most protected asset) sees shootings, trash, lights out and double parked vehicles….DAILY!

  16. I can proudly say I NEVER VOTED for him…being from a long line of Democrats….dont have to defend my decisions any longer… Had he and Murray not played political switcheroo….to KEEP Arnie Fielkow out of the top office …we could have had 8 years of sanity!

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