“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.