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Advocate staff photo by JOHN McCUSKER -- French Quarter riverfront and skyline.

A state appellate court has denied a Faubourg Marigny neighborhood group’s attempt to immediately stop the city from approving buildings up to 80 feet tall in Marigny and other riverfront neighborhoods, meaning a project of that size could move forward as the legal case plays out.

But while the 4th Circuit Court of Appeal upheld Orleans Parish Civil District Court Judge Kern Reese’s denial of a preliminary injunction, the three-judge panel chided the city for failing to let residents weigh in more thoroughly on the new policy, just as Reese did last year.

The Faubourg Marigny Improvement Association sued the city, the City Council and the City Planning Commission in May 2015 over a provision in the city’s new comprehensive zoning ordinance that allows such tall buildings. The lawsuit said the provision, 
dubbed the “riverfront overlay district,” would cause “severe changes” to the Marigny neighborhood and asked that it be nullified because it did not go through a hearing process before the Planning Commission.

The provision was one of the more contentious changes to city zoning laws approved last year by the City Council after years of discussion, a final seven hours of debate and three dozen last-minute amendments.

The provision allows structures in the overlay district to qualify for a 25-foot “height bonus” — bringing their maximum allowable height to 80 feet — if the building’s design features elements such as open space or public plazas. Structures may also qualify for the bonus if the developer agrees to pay at least half the cost — but not less than $250,000 — of a new bridge over the floodwall, a railroad crossing or another improvement that “significantly increases” public access to the riverfront.

The overlay district includes the Marigny, Bywater, Holy Cross and Algiers Point neighborhoods.

Some Bywater, Marigny and French Quarter residents loudly opposed the last-minute amendment, which was backed by Mayor Mitch Landrieu.

Planning Commission Director Robert Rivers, however, said council members can amend an ordinance at any point during their consideration of it.

Reese refused in August to grant the injunction, citing rules that forbid him from interfering in another branch of government unless that branch’s decision is “totally arbitrary or capricious.” But he also criticized the city for not giving residents a greater opportunity to express their views on the last-minute changes.

The panel of appellate judges — James McKay III, Edwin Lombard and Paul Bonin — said they found nothing wrong with Reese’s decision, although they also were of the opinion that the city should have given the public more say.

While Marigny residents argue that the council can’t adopt zoning measures that haven’t gone before the Planning Commission — “a position with which we agree,” the appeals court ruling states — the three judges said the residents could not provide proof that taller developments would adversely affect their quality of life, as they alleged.

The panel also said it was unclear if the Planning Commission had ever considered the last-minute changes.

A new date for the district court to consider the residents’ request for a permanent injunction has not been set.

Follow Jessica Williams on Twitter, @jwilliamsNOLA​