When Orleans Parish voters went to the polls in 2008 to amend the City Charter, they agreed to give the “force of law” to a yet-to-be-written document — a “master plan” that would provide the framework for how New Orleans’ built environment will develop into the future.
But although the charter says all land-use decisions “shall be consistent” with that now 16-chapter document, the actions of the City Planning Commission and City Council often suggest that members of those bodies do not necessarily feel bound by what the plan says.
Depending on whom you ask, in fact, the charter gives commissioners and council members anywhere from zero to significant freedom to decide what should be built where and how.
“There appears to be a difference of opinion on what ‘consistent with the master plan’ and ‘force of law’ mean,” Councilwoman Stacy Head said.
According to the charter, no land-use development can be approved or altered unless it is consistent with the master plan. By the charter’s definition, that means officials cannot approve any projects that “interfere with the goals, policies and guidelines” of the plan or that are incompatible with “the proposed future land uses, densities and intensities” articulated in the plan.
Just what that means, in practice, seems to vary.
In one recent example, Councilwoman Susan Guidry was outvoted on a matter in her own district when she opposed changing the zoning of a piece of property adjacent to Mizado’s restaurant on Pontchartrain Boulevard to allow the restaurant’s owner to build a parking lot on a site zoned for residential development. Guidry said she could not support the request because it would violate the master plan. She said she wanted to maintain her streak of being consistent in opposing such requests.
“Don’t get me wrong; I love Mizado, but there is a method for (getting that type of use approved) and that is to go a master plan amendment,” Guidry said last week. “I think that the only discretion available to the council members in making land-use decisions is determining whether a proposed development is or is not consistent with the designation given in the master plan. It is a limited discretion.”
During the council meeting, other council members said that despite the Mizado request’s inconsistency with the master plan and the Planning Commission staff’s recommendation of denial, they supported the project because denying it would put an unnecessary burden on a business.
Guidry’s view echoes the basic argument made in 2008 by master plan champions such as lawyer and preservationist William Borah and City Councilwoman Jackie Clarkson. They said the plan would curb the almost unlimited discretion council members had to approve zoning changes or waivers as they saw fit; would end the practice of letting individual council members call the shots on what would be allowed in their districts; and would bring consistency and predictability in land-use decision-making that residents, business owners and even developers would find reassuring — and that ultimately would spur economic development.
“The citizens voted to change the City Charter to require the city to do a plan for its future development, meaning you have to follow it,” said Borah, who believes the plan has been ignored by both the Planning Commission and the council. “If the master plan says this is a residential area, you cannot build industrial there. And if it says only a certain kind of residential, like low-rise, is allowed, you can’t build a big building.”
Free to interpret?
Both Guidry and Head, who was absent for the Mizado vote, said they believe the current council often gives itself wider freedom than the law allows when making land-use decisions.
City Planning Commission Executive Director Robert Rivers said Planning Commission members do not have the discretion to overrule the master plan.
“The charter is very clear that any land-use decision must be consistent with the master plan,” he said.
But he said they are free to interpret the master plan’s policies and guidelines and determine for themselves what is consistent and what is not.
The requirement of consistency “is not a requirement that means strict compliance with everything in” the master plan, Rivers said.
Councilmen James Gray and Jason Williams declined to comment for this article. Council members Jared Brossett and Nadine Ramsey did not respond to requests for comment.
In a written statement, Councilwoman LaToya Cantrell said the master plan “must be interpreted in context.”
Cantrell said the plan contains errors and an “overly rigid interpretation” of it would restrict the use of some properties.
Gray previously has said the master plan should be regarded as a guide that leaves council members free to evaluate projects individually and approve exceptions when necessary, such as if a development will generate significant jobs and real estate taxes.
The master plan offers a long-term vision for future development in the city and contains a wide range of policy recommendations, mostly focused on land use.
The plan doesn’t include specifics like the exact height limitations and setback requirements for a particular tract of land. Those things are laid out in the new comprehensive zoning ordinance that was written after the master plan was adopted and that went into effect last month.
The master plan, instead, focuses on less precise aspects of land use.
“Part of the issue is that the master plan is intentionally not that specific,” Rivers said. “I think there are lots of expectations about what laws are supposed to do. Master plans are by definition not exact. They are supposed to be general guides for growth over a very long period of time.”
Because it is intentionally vague in some areas, commission and council members are allowed legal wiggle room in interpreting its meaning, Rivers said.
Borah, however, said the master plan, while it needs to be revised for clarity and consistency, should be followed.
How much wiggle room officials have ultimately may be decided by the courts, which generally are reluctant to second-guess legislative bodies’ decisions but could step in if judges feel there has been a clear violation of the charter’s language.
Officials do have a guide in making their decisions. The City Planning Commission staff checks all proposed projects for conformity with the master plan, usually listing whether or not a project complies as the first reason for an approval or denial.
But Rivers called the staff’s recommendations “very conservative.”
The staff decision is based on a consistency table included in the master plan that specifies the relationship between future land-use designations and zoning classifications. If a proposed project falls outside the zoning listed on the table, the staff automatically will recommend denial of the project because of its inconsistency with the master plan, Rivers said.
He said he tells planning commissioners that “if they feel there is language in the master plan outside the consistency table (to support approval), they are certainly able to articulate that and offer a different recommendation than what the staff says.”
Planning Commission and City Council members “absolutely have the ability to overrule staff,” Rivers said. “Their discretion is to interpret the law and make decisions based on what their understanding of that law is.”
The commission and council, Rivers said, can look deeper into the details of the plan and consider questions such as whether a specific project under consideration wouldn’t change density even if it alters a site’s zoning.
They also can disagree about what the specific language in the plan means or simply decide that they think a certain project is important enough to be worth skirting the plan’s rules.
“I think the idea of the ‘force of law’ component is to place parameters around decisions but not to restrict decisions so much so that discretion is taken completely away,” Rivers said.
Guidry — a lawyer, as is Rivers — disagrees.
“That’s exactly what we were trying to get away from when we were doing the master plan,” she said. “It shouldn’t be a matter of the person getting elected in that district getting to paint the city as they see it.”
Head said strict adherence to the master plan is necessary to ensure fair and consistent treatment of proposed developments as well as certainty for property owners about what can be built in their neighborhoods.
“There was the belief in the past that if you just hired a certain consultant, you could get something by the council,” Head said.
The plan was adopted after a long debate about how much authority it should have and the ultimate decision that it should carry the force of law, Head said. She said she is sometimes perplexed by council votes that are inconsistent with the document.
In the run-up to the 2008 vote that mandated creation of the master plan and gave it the force of law, there was extensive debate about the “force of law” provision in the proposed charter amendment. Opponents were suspicious of giving too much power to what was then an unwritten plan. But those supporting the master plan and the “force of law” provision included a host of neighborhood groups, civic organizations and the nonpartisan Bureau of Governmental Research.
“Memories are short. My colleagues in the past seem to have understood it pretty well,” Head said. “This (present) council seems to have a different appreciation. But when that discussion was concluded, the answer was, ‘Yes, it should (have the force of law).’ And now, somehow it’s ‘Groundhog Day.’ ”
As it stands, land-use decisions involving projects that the Planning Commission staff has determined are inconsistent with the master plan often split the council, which has been in office for nearly a year and a half in its current configuration.
Guidry and Head are the members most likely to vote against something the planning staff has said is inconsistent with the plan, though both have cast votes contrary to a staff recommendation.
Guidry and Head are also the longest-serving members of the council and were the only members on the panel when the master plan was adopted.
Ripe for litigation?
As the disagreement about the power of the master plan persists, there seems to be agreement that the topic is ripe for litigation.
“That’s probably what needs to happen,” Head said, “so that there’s a judicial determination that either the master plan is only a guide or it really is a document to be followed.”
In fact, one group already has filed a lawsuit against the City Planning Commission and City Council related to the master plan. Although it is not the central point of the action, the lawsuit filed by the Faubourg Marigny Improvement Association says the recently enacted comprehensive zoning ordinance violates the master plan because it “gives developers — as a matter of right — the ability to exceed existing height and density requirements, including in the Faubourg Marigny.”
Civil District Judge Kern Reese recently denied the association’s request for a temporary injunction barring the city from implementing the new zoning law. It is not clear what will happen next in that case.
Rivers said he advises City Planning Commission and City Council members to clearly articulate on the record why they believe their view is consistent with the master plan if the commission staff says it is not.
“If something is ever challenged, any judge will look at the record and see if the decision-maker was acting arbitrarily or capriciously,” Rivers said.
The master plan, by law, must be updated every five years. The City Planning Commission will begin the process of amending it later this year, with the expectation that a revised plan will be adopted in mid-2017, Rivers said.