A REPORT ON PLANNING IN NEW
ORLEANS
Daniel R. Mandelker
Stamper Professor of Law
Washington University in St. Louis
This
report reviews the progress of planning and zoning in New Orleans and makes recommendations
for reforming that process. The city has completed a land use plan as part of
its effort to complete a master plan, and has also completed a draft of a new
zoning ordinance. Unfortunately, neither document meets the city's needs for
guidance in the development and preservation of the city. Although the land use
plan can possibly provide a basis for more responsive land use planning, the
draft comprehensive zoning ordinance (CZO) is inadequate and should be shelved
until a more effective zoning ordinance can be prepared.
Neither
does the city have an adequate legal basis for the planning process. The city
charter requires the planning commission to adopt a master plan, but does not
require the city council to adopt the plan and does not require zoning and
other land use decisions to be consistent with the master plan. The city should
adopt both of these requirements.
Historic
neighborhoods.
The City of New Orleans is a national treasure. Half of the city is designated
as an historic district under the National Historic Preservation Act. The city
created 13 local historic districts, and five applications are pending from
neighborhoods that have proposed historic district designations. This chain of
historic neighborhoods defines the city’s signature quality. Each neighborhood
is a mixed, fine-grained assemblage of land uses, each with its distinctive
historic style and character.
Despite this legacy, the
historic neighborhoods in New Orleans are fragile. They are threatened by development
typical of car-driven, low-density suburban areas that can damage the historic
development patterns typical of New Orleans. Large-scale retail development,
usually associated with extensive and unattractive off-street parking, is
especially threatening. It can permanently damage the character of historic
areas if allowed within them, destroy their architectural, historic, and
residential appeal – as well as their unique role as cultural tourist destinations.
The
lessons are obvious. Because the historic neighborhoods of New Orleans are
unified by their architectural and design integrity, a planning program for the
city must make this historic character its first principle of design. Planning
policies and zoning programs that are not based on this principle will degrade
the city’s historic legacy.
Redevelopment
sites and areas. There is another side to New Orleans. Areas of the
city are in need of redevelopment, especially areas of blighted and abandoned
housing. The city has about 6 to 8,000 abandoned housing structures. Some
development in these areas will occur as infill on individual lots, but new
development projects will also occur on a larger scale, often with mixed uses
that can provide an attractive addition to the urban environment. Development
at this scale cannot be handled through traditional zoning methods. It requires
a distinctive planning and zoning program that avoids piecemeal decision-making
and considers the development and design potential of new development projects
as a total entity.
What
planning does. The master – or comprehensive – plan has been an
accepted element in the design of American cities for 80 years, but the role of
master planning in the preservation and development of cities is not fully understood
even now. The master plan is not zoning. Its purpose is to provide a long-range
vision for a city that can guide its preservation and development. The American
Planning Association (APA) has just published new statutory models for
comprehensive planning and land use regulation that provide detailed
requirements for a comprehensive plan. These statutory proposals include
extensive commentary that explains why comprehensive planning is necessary:
Local planning provides the city council, city
agencies, and residents in the community an outline of the community’s major
development problems and opportunities. The process of plan preparation, with
its workshops, meetings and public hearings provides for communication between
a city’s residents and its officials that can present a vision of the community
and how that vision can be achieved.... The plan is a blueprint of values that
evolves over time. [Adapted from APA, Growing Smart Legislative Guidebook, 7-7,
7-8 (2001).]
A
comprehensive plan is not a zoning ordinance. A zoning ordinance contains
legally binding land use restrictions that apply to each lot ownership within
the city. A comprehensive plan provides the policies the zoning ordinance
carries out. The zoning ordinance relies on the policies in the comprehensive
plan in making decisions about the use of land throughout the city. The zoning
ordinance is not a plan; it is a regulatory tool to implement the plan.
A
number of principles determine the function and content of a comprehensive plan
and give it meaning. It must be general in the sense that it provides
comprehensive policies for land use and development rather than specific land
use designations for individual properties. It must also make the critical and
important policy decisions for the future use and development of land and for
the preservation of existing neighborhoods. A focus on citywide policies rather
than limited sites or areas is essential.
The policies of the comprehensive plan are
set out in a number of planning elements. These elements vary, but a key
element in any plan is the land use element, which provides the policies for
land use within a city. Other elements that are almost always included in a
comprehensive plan are a transportation element, that provides policies for the
city’s transportation system; a community facilities element, that provides
policies for the city’s public facilities, such as parks; and a housing
element, that provides policies for housing. A plan must include and integrate
all of these elements in order to provide a comprehensive planning policy. The
land use element cannot stand alone. It is only part of a comprehensive plan.
For this reason, many state statutes, the APA model legislation, and the Baton
Rouge city charter all provide that a comprehensive plan must be an integrated
policy document.
The
role of the zoning ordinance as subordinate to the policies of the
comprehensive plan means that the city must adopt all of the elements of a plan
before it adopts the zoning ordinance. The zoning ordinance cannot come first
because the adoption of the comprehensive plan is necessary to provide a basis
for the legally binding land use regulations the zoning ordinance contains.
A
mandatory planning requirement is essential to make the planning process work.
The City of New Orleans charter requires the planning commission to prepare a
comprehensive plan, but it does not require the city council to adopt the plan.
Without adoption by the city council, the plan cannot provide a basis for the
land use regulations in the zoning ordinance.
Consistency
required. The city must also require that the zoning ordinance, any
amend ments to the zoning ordinance, and any change in land use under the zoning
ordnance must be consistent with the comprehensive plan. If changes in zoning
can occur that are not consistent with the comprehensive plan, there will be no
certainty in the use and development of land throughout the city. Land use
changes will occur piecemeal, on an ad hoc basis. They can destroy the historic
legacy of New Orleans because development can occur, unguided by a plan, that
is incompatible with its historic character. Suburban-style retail development
that interrupts historic street facades is one example.
Uncertainty
is also a major obstacle to the development of mixed-use projects on a large
scale that are essential to the city’s continued economic health. A developer
will not commit substantial funds and energy to a major development project
unless he knows the city will protect the integrity of his development. He
needs the certainty that the city will not allow adjacent or nearby land uses
that are incompatible with his development and that will damage its integrity
and economic success.
Planning practice has developed the
consistency requirement to provide the necessary link between the comprehensive
plan and the zoning process, and to provide the certainty that the plan will be
followed. Put simply, this requirement means that the zoning ordinance, and any
change in land use made under the zoning ordinance, must be consistent with the
comprehensive plan and the planning policies it contains. Any rezoning or other
land use decision that is inconsistent with the comprehensive plan is not
valid.
The
city of New Orleans charter specifies the contents of the comprehensive plan.
The charter requires a long term Master Plan for the physical development of
the City, which shall consist of a statement of development goals, objectives,
and policies and which shall show the general location, extend, and character
[of named public and private facilities]. [Charter, § 5-402(1).]
Land
use plan deficient. The 1999
land use plan, completed as the land use element of the city’s master plan, is
essentially a generalized description of future land uses in the city on a
detailed scale, illustrated in color. This type of plan may possibly comply
with the direction in the charter for the preparation of a master plan, but it
is not appropriate for a city like New Orleans. It fails because it does not
include comprehensive planning policies on a city scale that indicate where
future development and redevelopment can occur. It also fails because it does
not consider the distinctive quality of the city’s historic neighborhoods. It
deconstructs the city by designating land use on a localized, block by block,
basis without considering the preservation and development needs of New Orleans
neighborhoods.
Land
use policy plan proposed. New
Orleans should adopt a radically different kind of land use plan with policies
that can identify development opportunities and preservation needs throughout
the city. Its historic neighborhoods and districts provide a natural framework
for the “development goals, objectives, and policies” required by the charter,
and this neighborhood approach can identify preservation areas and the policies
that protect them. The plan should also identify areas where redevelopment and
new development can occur, and should also include planning policies that will
encourage that development to happen.
A
land use policy plan of this type will not deconstruct the city, but instead
will include preservation and development policies on a citywide scale that can
provide needed direction for the zoning and land development process. An
excellent example of this kind of policy planning that has been in place for
some time is the planning program in Montgomery County, Maryland, an urbanized
county adjacent to Washington, D.C. It has a comprehensive policy plan that
is explicitly linked to a regional plan
for the Washington metropolitan area that was adopted 35 years ago.
New Orleans should implement its
policy plan through the adoption of plans for individual neighborhoods and for
areas of the city where there is a potential for new development. There is
precedent for this kind of planning in a study completed by the Urban Land
Institute for downtown New Orleans in 1998.
Urban design planning. Subarea plans, and particularly plans that focus on the city’s many historic districts, should be a feature of the land use element of the Master Plan. Neighborhood and area plans should have an explicit urban design element. Urban design planning does much more than establish allowable land use. It provides a generalized design framework that identifies building mass and mix, architectural facade and character, open space elements, and pedestrian and traffic circulation. For example, a plan for an historic neighborhood can identify the historic character of its building architecture, its street plan and traffic demands, and its open space features. The plan can combine these design components to specify the development that is appropriate for the neighborhood. Design plans can have a three-dimensional element with drawings of buildings, street facades and streetscapes that illustrate design elements beyond what a flat, two-dimensional map can provide.
Urban
design plans for downtown areas, which originated in San Francisco in the
1980s, are an example of this kind of urban design planning. Tacoma,
Washington, has recently adopted a downtown plan of this type, and Nashville,
Tennessee, has recently carried out a successful planning project for an area
of the city needing development which is now being implemented. More detailed
project planning consistent with the neighborhood design plan will occur as
development projects are presented to the city for approval. Planning, in
itself, will not bring new development to the city, but it is an important
catalyst for organizing the public and private partnerships that are so
essential if development is to occur.
Neighborhood
and Subarea Plans
Another
major problem is to provide a legal foundation in the city’s planning program
for urban design planning in neighborhoods and areas ripe for development.
Neighborhood planning with the participation of neighborhood organizations and
residents is the way to achieve this goal. Some cities with active neighborhood
planning programs, such as Portland, require the city council to adopt
neighborhood plans as part of the city’s comprehensive plan, after the planning
commission reviews them and recommends their adoption.
Consistency
with master plan. Neighborhood
plans must be consistent with the city’s master plan. However, if the city
provides for effective neighborhood participation in its planning process, the
city’s master plan will contain planning policies for neighborhoods that are
consistent with neighborhood preferences. In this participatory process,
neighborhood organizations should have the legal authority to comment on
proposals for neighborhood land use policies in the master plan, and the
planning commission will have to provide an adequate explanation if it rejects
a neighborhood organization’s comments. A proposal for establishing a
neighborhood participation program of this type is described in more detail
below.
Urban
design planning for neighborhoods and new development opportunities need not
occur everywhere in the city, all at once. Much of the city consists of stable
residential neighborhoods, where the existing residential character provides a
basis for a planning policy. The comprehensive plan needs to identify those
areas of the city where more responsive subarea design planning is required,
and then set priorities for determining when design planning for these areas
should occur.
The
detail, format, and content of neighborhood and subarea plans can vary. Often
these plans can be schematic. Detailed design planning may not be necessary,
although greater detail will usually be necessary for plans expected to guide
new development projects. The balance between textual regulations and design
guidance will depend on the development problems presented, and the consensus on what kind of guidance is necessary to
preserve established areas and provide a basis for new development. Creative
planning at this scale is a very real challenge. It is time-consuming, it is
expensive, and it requires real commitment from the city. But it is necessary
if the legacy that defines New Orleans is to be preserved.
Implementation
of Master Plan
An essential element in
these reforms is action at the city level that will make the comprehensive plan
mandatory and binding, and that will require zoning and land use decisions to
be consistent with the comprehensive plan. An amendment to the city charter is
one way to accomplish these reforms; state legislation is another
possibility. A city ordinance is
another alternative in New Orleans, and is a preferable first step. The State of Louisiana’s constitutional home
rule powers are potentially broad enough to authorize an ordinance that
mandates the adoption of a comprehensive plan by the city council, defines the
elements of that plan, and requires zoning and land use decisions to be
consistent with the plan. An ordinance that adopts these reforms in the
planning and zoning process must be carefully drafted so that all participants
will know and understand the rules under which planning and zoning in the city
are organized and carried out.
What
zoning does. Zoning, as noted earlier, is
simply a city ordinance that implements the comprehensive plan. Unfortunately,
the model legislation developed in the 1920's contemplated a zoning ordinance
based on the rigid pattern of gridiron lots and blocks that typifies Manhattan
Island in New York. This model legislation requires the adoption of zoning
districts in which only compatible land uses are allowed, and then provides
rules to keep incompatible uses out of these districts. This type of zoning is
static in concept, does not provide for change, and does not have an historic
preservation element. It reflects the development patterns typical of the time,
in which development occurred in small fragments, one lot at a time.
Problems
with New Orleans zoning. Many
states and cities, including Louisiana and New Orleans, adopted this zoning
model without realizing it was inappropriate for their land use problems. New Orleans
has continued this mistake in its comprehensive zoning ordinance revision. The
ordinance further deconstructs the planning policies in the land use plan by
adopting generalized rules it then rigidly applies to the historically distinct
neighborhoods that make up much of the city. For example, it includes
standardized neighborhood mixed-use districts that it then applies to a variety
of neighborhoods with very different land use patterns. It is not possible to
apply generalized land use standards to a city that consists of a collection of
historically distinct neighborhoods, each with a special character.
Zoning
matrix. A zoning matrix that is
the heart of the proposed zoning ordinance complicates these problems. It decomposes
land use in the city into an extensive list of specified land uses and then
assigns these uses to designated zoning districts contained in the zoning
ordinance. By atomizing land use in this way, it precludes any opportunity for
considering the integrity of historic neighborhoods in the zoning process, and
for dealing with new mixed-use and other development projects on a
comprehensive scale.
Role
of historic districts. Neither
does the proposed zoning ordinance address the role of national and local
historic districts that are present in much of the city and that overlay the
zoning regulations. Local historic districts have their own set of regulations,
and the federal National Historic Preservation Act requires the review of any
federal “undertakings” that has an “adverse effect” on historic districts
designated under the federal act.
These
national and local historic districts require a fundamental change in the way
the zoning ordinance is constructed. Local historic districts, for example, serve
a very different purpose than the conventional zoning district. Their purpose
is to preserve the character of a district’s historic buildings through the
design review of proposed changes in the character of these buildings. Historic
districts do not regulate land use. Nor do they modify the zoning designations
that apply to the district, so that zoning district regulations and historic
district regulations often conflict. The historic district design review
process is not integrated with the zoning regulations that apply within these
districts. Neighborhood plans with a design element that conform to the
umbrella Master Plan can help provide the necessary framework under which the
zoning regulations and historic district regulations can be integrated.
Discretion
in zoning. A final critical
problem with the proposed comprehensive zoning ordinance is its failure to
provide opportunities for the use of discretion in decision making on land use
proposals. As noted earlier, the decision on how and in what manner to exercise
discretion is a critical decision in the development of a zoning ordinance. For
example, the revised zoning ordinance rejects the planned unit development
method of land use regulation as a suburban zoning technique that does not apply
to New Orleans. This decision is wrong. Discretion is not evil.
Traditional
zoning ordinances do not deal effectively with the exercise of discretion
because the 1922 model zoning act on which zoning ordinances were based
contemplated a zoning system in which land uses were assigned to individual
lots as a matter of right. The expectation was that the zoning ordinance and
map would tell the landowner precisely what she could do with her property. The
only opportunity for the use of discretion in the model act was through the
zoning variance, which was intended as an experiment, and the conditional use
procedure. Because a static zoning
system of this kind is too rigid, many cities abuse it by overusing the
variance and conditional use options. However, the potential for abuse in the
existing zoning system is not a reason for rejecting discretionary zoning
techniques that are properly conceived.
Draft
CZO should be shelved. For the
reasons that have been indicated, the proposed zoning ordinance does not meet
the city’s needs and should be shelved until the city can develop an adequate
alternative. In particular, the proposed matrix system of assigning zoning
requirements must be discarded. The city also needs to consider the role of
discretion in the zoning ordinance, the advisability of applying generalized
land use standards to the variety of neighborhoods in the city, and the need to
integrate its historic district reviews with its zoning regulations.
A
master plan that includes urban design plans for neighborhoods and major new
developments requires discretionary procedures in the administration of the
zoning ordinance. There must be discretionary procedures for translating the
design objectives of these plans into land use regulations for development in
areas covered by these plans. For example, a neighborhood design plan, a
feature of the city’s land use element of its
master plan, may provide for infill development if it is carefully done,
but the design policies for that development must be applied on a case-by-case
basis through the zoning ordinance. Major development projects are another
example. Design plans may also provide guidance for these projects, but there
must also be a way to review these projects in the zoning process to determine
whether they comply with the policies of the design plan. To provide for this
kind of individualized review, the zoning ordinance must authorize
discretionary techniques that can make urban design planning a reality.
Historic
neighborhoods as zoning districts. One
way in which to accomplish these changes is to abandon the idea of arbitrarily
applying standardized land use districts and regulations across the city in
historic areas with very different characteristics. A better alternative is to
designate each of the historic neighborhoods in the city as an independent
zoning district, each with its own set of land use regulations specially
tailored to its character and needs. In this way, the zoning ordinance can
implement the comprehensive plan to reinforce rather than degrade the historic
character of New Orleans. More generalized standards can be developed for
residential areas that are not historically designated, but that have an
integral character that requires protection.
Design
plans as substitute for zoning ordinance.
As design plans are adopted for historic and other
neighborhoods, the zoning ordinance should be organized so that the council can
adopt these plans as a substitute for detailed textual regulation in the zoning
ordinance. These plans would then serve as a basis for reviewing new
development proposals and land use changes within the area covered by the plan.
They would take the place of existing zoning regulations, which would no longer
apply.
Additional
design detail may be needed in area plans if they are to serve as the basis for
regulating land use, and they may also need textual regulations that implement
the design ideas and that are specially tailored to meet the land use needs of
the area. As a substitute for the zoning ordinance, subarea plans can provide
the sensitive textual and design guidance that can guide new development while
maintaining the integrity of the neighborhoods in which it occurs. The special
districts that have been in place in New York City for some time are an example
of this kind of zoning technique.
Planned
unit development review. Planned
unit development review is another well- known zoning technique the city should
adopt to review and approve major development projects to decide whether they
comply with design policies and textual regulations contained in area design
plans. The proposed zoning ordinance states that the planned unit development
procedure is appropriate only for suburban areas, but this statement is wrong.
The
planned unit development procedure recommended here should provide an
opportunity for the approval of project
plans with appropriate standards for major developments in areas where the
city’s master plan and subarea design plans indicate that they are appropriate.
Planned unit development procedures have a long and established history, and
there are many regulatory models that can be adapted to New Orleans. As a
minimum, this procedure should require participation by the planning commission
and by neighborhood organizations in the area in which a development project
will be built. It will require approval of the project plan by the city council
if the project requires major changes in land use and density designations. Once the project plan is approved it should
function as a substitute for the zoning ordinance as the basis for controlling
development within the project area.
Nonconforming
uses. The nonconforming use problem must also receive special atten
tion in the zoning ordinance and in subarea design plans. Where nonconforming
uses are detrimental to the neighborhoods in which they are located, the
ordinance should provide an effective means for their elimination. This can be
done through the adoption of the following techniques:
1. A requirement that the
city must complete an inventory of existing nonconforming uses and create a
register on which each nonconforming use must register. The city can then issue
a certificate for each nonconforming use that specifies its extent and character.
There is a proposal for registration in the city’s recently completed draft
zoning ordinance, but it does not require an inventory and does not provide for
a nonconforming use certificate.
2. The city should create an
adjudicative process in which a permit is required for any change in an
existing nonconforming use, such as an expansion or repair of a nonconforming
use. The certificate issued for a nonconforming use should be the basis on
which any change in a nonconforming use is considered, and the ordinance should
provide clear standards for nonconforming use changes, such as a requirement
limiting the expansion of a nonconforming use to a designated percentage of its
existing size or area.
3. A method for
amortization, which is supported by Louisiana law, should be included in the
new zoning ordinance. The proposed ordinance does not contain an amortization
provision.
4. The prescription law
provides that if an initially lawful use or structure is modified or altered so
that it violates the current zoning restrictions, the city must act within five
years of the date of the violation or, if it is a use violation, within five
years of notice of the violation. Louisiana Stat. § 9:5625. If the city fails
to prosecute the violation within this time period, the use is legalized as a
nonconforming use. This law creates a difficult enforcement problem for the
city and should be repealed.
Amortization
is a zoning technique that allows a nonconforming use to continue for a
specified period of time. The nonconforming use must be eliminated, without
compensation, after this time period has expired. A vast majority of state
courts have upheld the amortization technique, and the Louisiana Supreme Court
was the first to do so in cases decided in the 1929. Model land use legislation
proposed by the American Planning Association contains a number of alternatives
for implementing an amortization program, and New Orleans can adopt one of
these alternatives by ordinance.
An
important priority in the improvement of the planning and zoning system is to
provide an expanded role for citizens, the neighborhoods, and community and
business groups in the planning and zoning process. As a minimum, all citizens
and community groups should have an opportunity to participate fully in the
planning process, and to participate as parties in zoning proceedings and to
appeal zoning decisions to the courts if they disagree with them.
In
addition, the city should recognize that planning begins at the neighborhood
level. Neighborhood concerns inform the
planning process, and the neighborhoods should be given a legally recognized
and formal role in the process, whether they are characterized as residential,
commercial, or industrial areas of the city.
Formal
structure for neighborhood organizations. To carry out this
objective, New Orleans should create a formal structure of neighborhood
organizations designated by the city to participate in the planning and zoning
process and authorized to comment on proposed plans, plan amendments, and
zoning changes. To implement this program, the city should adopt an ordinance
that specifies a procedure for designating neighborhoods and for recognizing
neighborhood organizations, and providing for their participation in the
planning and zoning process. An
outline of this procedure, as proposed for a state statute, is contained in
Sections 7-108 through 7-110 in the Model Statutes for Planning and the
Management of Change published by the American Planning Association. The
extensive home rule authority delegated to the City of New Orleans should allow
the city to adopt this procedure by ordinance, with modifications it considers
necessary to reflect local needs and preferences.
Delineating neighborhood boundaries. The APA model planning and zoning
legislation, in Section 7-108(5), contains a list of ten criteria a city must
apply when designating neighborhoods and determining their area. These criteria
include factors such as patterns of development, physical character and
resident attitudes that the city council should be required to consider. In
addition, the ordinance should recognize that existing neighborhoods,
especially locally designated historic neighborhoods, contain recognized
boundaries for neighborhood participation. The ordinance should include a
presumption that these neighborhoods should be the neighborhoods designated by
the city for organizing neighborhood organizations. The burden should be on the
council to show a reason to designate alternate neighborhood boundaries when
neighborhoods that have recognized historic or other boundaries object.
The city ordinance authorizing neighborhood organizations
should contain procedures that govern their establishment and representation in
these organizations, such as appointment to office and the organization of the
neighborhood board. Federal and state voting rights cases must also be
consulted to ensure that the neighborhood legal structure that is authorized
meets constitutional voting requirements.
Authority of neighborhood organizations. There are a range of options for giving recognized
neighborhood organizations the legal authority to participate in the planning
and zoning process. They should clearly be given an advisory role in the
adoption and amendment of the city master plan and area plans, and in the
review of proposals for zoning and other land use changes, including the right
to participate in hearings. A more
difficult question is whether neighborhood organizations should be legally
empowered to play a role in the adoption of the city’s master plan and in the
decision making process on land use proposals. What is clear, however, is that
neighborhood organizations and interested citizens should be allowed to elect
their own representatives to participate in the planning process.
New Orleans should follow the lead of other cities and go
further. Neighborhood organizations in some cities are empowered to comment on
planning, zoning and other land use proposals that are before the city council
and city administrative bodies that effect their immediate area. For example, the Washington, D.C. Advisory
Neighborhood Commissions have this statutory authority. City agencies are not
required to adopt recommendations contained in these comments, but they must
give them “great weight.” The courts there have held that the statute requires
a city agency to elaborate its response to Neighborhood Commission comments
with “precision,” and “come to grips” with their point of view.
New Orleans should adopt a similar comment-and-response
system by ordinance. Other cities, such as Los Angeles, are beginning to
implement similar neighborhood organization programs that give neighborhood organizations
a role in the planning and zoning process, and their experience should also be
consulted.
A formal procedure must also be provided for the
participation of business and community groups. Recommendations for doing this
are contained in recommendations for the planning and zoning process that
follow.
The planning process should be an open one that involves the entire community by providing for participation by residents through their neighborhoods and by community groups. This kind of process, with full participation by neighborhood and community groups, can provide the consensus on policy that the plan requires, and an expectation that the city will follow and apply the policies included in the plan.
This process should also provide an opportunity for
neighborhood organizations designated by the city to comment formally on
proposals for the comprehensive plan. Comments by neighborhood organizations on
plan proposals will require an adequate written response from the planning
commission if the commission decides to reject or modify a proposal favored by
a neighborhood organization.
Prevention of
arbitrary plan amendments. Plans require revision, and the planning process
should also provide for the review of the comprehensive plan at periodic
intervals. However, there is also the danger that the plan will be amended in
an arbitrary manner because the council can always amend the plan to authorize
a zoning change that is inconsistent with the comprehensive plan. An arbitrary
plan amendment of this kind can make the consistency requirement meaningless
and undermine the plan and the planning process.
The planning process proposed in this report for the
adoption of the comprehensive plan should prevent this kind of arbitrary
amendment to the comprehensive plan. Because of the community involvement in
fabricating the plan, it should create an expectation on the part of
neighborhood and community groups that the plan will be followed and that
zoning changes will be consistent with the plan. That expectation can help
discipline the plan amendment process so that arbitrary changes do not occur.
The plan can also
be protected by creating a disciplined annual procedure for the plan amendment
process. Plans also require periodic review, and New Orleans should adopt the requirement
adopted in Baton Rouge that provides for a periodic five-year review of the
plan. The APA model legislation also recommends a five-year periodic review.
This is a comprehensive review of the master plan in which major changes in
policy are considered. Major five-year reviews of the plan should use the same
process of citywide participation that is used in the initial adoption of the
plan.
Annual review of the master plan may also be needed
between the periodic five-year reviews. More frequent reviews are not necessary
in a fully-developed city like New Orleans. Annual reviews of the plan can
provide for minor adjustments in planning policies when these adjustments are
necessary. These reviews will require a disciplined procedure in which
citizens, neighborhood organizations and community groups participate fully,
and amendments to the master plan should require a vote of five council members.
Baton Rouge annual review procedure. Baton Rouge has developed an
excellent procedure for annual reviews of the master plan in which the annual
review process is not automatic, and that city’s regulatory process should be
consulted. The following annual review process is adapted from the Baton Rouge
procedure. The annual review may or may not produce amendments to the plan. As
in Baton Rouge, the planning commission can initiate an annual review only if
the commission believes it is necessary. The annual review process in New
Orleans should include the following steps:
1. A decision by the
planning commission to begin an annual review following an open public hearing
at which the need for an annual review is considered.. The ordinance should
specifically state the reasons for an annual review, and the planning
commission must find that one or more of these reasons exists. Citizens,
neighborhood organizations and community groups must be allowed to participate
in the public hearing. A decision by the planning commission to begin an annual
review must provide an adequate written response to comments by legally
designated neighborhood organizations if they believe that an annual review is
unnecessary.
2. The submission of plan
amendments to the planning commission followed by a public hearing with the
full participation of citizens, neighborhood organizations and community
groups. Legally designated neighborhood organizations may comment on proposed
amendments to the comprehensive plan, and the planning commission must provide
an adequate written response to these comments.
3. A public hearing by the planning commission on all proposed amendments with full participation by citizens, neighborhood organizations and community groups.
4. Submission of plan amendments
approved by the planning commission to the mayor to be forwarded to the city
council within 60 days of their approval.
5. The conduct of at least
two hearings by the city council, held at least one month apart, with full
participation by citizens, neighborhood organizations and community groups.
6. A decision by the council
on the plan amendments within 60 days of the final public hearing. A council
decision approving a plan amendment should require a vote of five council
members.
7. Reconsideration by the
planning commission of any plan amendments rejected by the council, including
an open public hearing and written responses to comments by legally designated
neighborhood organizations.
8. Submission of plan
amendments approved by the planning commission to the mayor to be forwarded to
the city council within 60 days of their approval.
9. The conduct of at least
two hearings by the city council on plan amendments approved by the planning commission,
held at least one month apart, with full participation by citizens,
neighborhood organizations and community groups.
10. A decision by the
council on the plan amendments within 60 days of the final public hearing. A
council decision approving a plan amendment should require a vote of five
council members.
This kind of disciplined
planning process will protect the comprehensive plan from arbitrary amendments
that can undermine its policies.
Zoning Amendments as Quasi-Judicial Procedure
New Orleans also needs to reform its zoning process in order to
implement the proposals in this report. Procedures for the approval of zoning
amendments, variances and conditional uses should be similar to the procedures
outlined for the annual review of the master plan, with the exception that
applications for these zoning approvals will usually be made by a private
entity rather than the city, though city initiation of zoning amendments is an
option. Neighborhood
organizations and community groups should have the same right to participate in
this process. Because a zoning amendment, variance, and conditional use must be
consistent with the comprehensive plan, the city need only require one public
hearing and a majority vote by the city council.
The city should
also establish a different kind of zoning procedure for rezonings and other
zoning changes. Zoning procedures, in
New Orleans and elsewhere, have been unsatisfactory because the old model
legislation on which state statutes are based did not provide an adequate
process for making planning and zoning decisions. The American Planning
Association gave me the responsibility of drafting a model statutory procedure
for the judicial and administrative review of land use decisions in the zoning
and other land use approval process as part of their model legislation project.
Chapter 10 of the APA model legislation provides a fair
procedure for zoning decisions that are quasi-judicial in nature. A zoning
decision is quasi-judicial if it requires the application of existing policies
and standards to a request for a zoning change for a particular property or
properties. Decisions on variances and conditional uses are quasi-judicial
because they are based on pre-existing standards contained in the zoning
ordinance. A rezoning that changes the zoning designation for a parcel of land
is quasi-judicial under the planning and zoning system proposed here because it
requires an application of policies contained in the master plan to the
rezoning application to ensure that the rezoning will be consistent with the
master plan.
Quasi-judicial procedures require a court-like hearing
and require the decision-making-body to make findings of fact and give reasons
for its decision. It may seem unnecessary to require procedures of this kind in
the zoning process, but they are necessary to ensure that all parties to the
proceedings are treated fairly, to give neighborhood and other community groups
an adequate opportunity to participate in the hearings, and to provide an open
record of zoning decisions by zoning agencies and the city council.
APA legislation model. Chapter 10 of the APA legislative
model contains detailed recommendations for quasi-judicial zoning procedures.
Although drafted for legislative adoption, many of these procedures can be
implemented by ordinance at the local level, or by amendment to the City
Charter. They include the following elements:
1. A requirement that a
complete application for any proposed zoning change, such as a rezoning,
variance or conditional use must be submitted to the appropriate city agency,
with the agency to have an opportunity to determine whether the application is
adequate.
2. A public hearing on all
applications with notice to interested parties stating the basis on which the
application will be heard. Staff reports on all the applications must be made
available at least 30 days before the hearing. Interested citizens, legally
designated neighborhood organizations and other interested groups should be
allowed to participate in the hearing as parties. Quasi-judicial procedures,
including the right of cross-examination by all parties, are used at the
hearing.
3. A decision on the
application by the responsible city agency that includes written findings of
fact and that states the reasons why the decision was made.
Conclusions
New Orleans is a priceless legacy; its survival requires
care and protection. Mandatory planning, and a requirement that all land use
decisions must be consistent with the comprehensive plan, are necessary to manage
development within the city and to protect its historic neighborhoods. Planning
for New Orleans must also take a visionary approach based on urban design
principles. This kind of planning can provide responsive neighborhood and
development plans that reflect a sense of place, and that will furnish a
blueprint for neighborhood preservation and new development projects.
The planning process must be completed through the
preparation of all the necessary planning elements, and the land use plan must
be revised to include the policy planning and neighborhood approach that this
report recommends. The draft zoning ordinance should be shelved until the city
can develop a different kind of zoning ordinance that implements the planning
and zoning program recommended in this report.
The planning and zoning program recommended in this report should be enacted into law by a city ordinance that mandates the adoption of a comprehensive plan by the city council and requires all zoning and land use decisions to be consistent with the comprehensive plan. The city charter can eventually be amended to authorize these requirements. The neighborhood organization program and planning and zoning procedures recommended in this report should ensure that the policies of the plan are implemented, and that the zoning ordinance is fairly administered.
Experience in other cities has
taught me that you must adopt the legislation that mandates the creation of the
master plan, establishes the principal of regulatory consistency, and legally
structures the neighborhoods into the planning process before you begin to
develop a plan for the community. Over
and over again it has been shown that the public as well at private sector will
ignore the plan unless they are legally required to follow it. To retain the services of planners, to write
planning reports, and to involve citizens in a planning process before the
legal authority has been established for that process is to waste taxpayers
money and to cause citizen disillusionment.