Demolished – A Further New Orleans Tale

Jan 2, 2008 by

(Syndicated from email – Loki)

Dear New Orleanians,

 
Demolition is not a
plan. But the city of New Orleans wants to convince everyone, including
its own bureaucrats, of the opposite.
 
Over
the past few months, as I’ve studied the workings of demolitions in New
Orleans, I’ve gotten more and more dispirited. There’s no leadership,
no direction, just mixed up mountains of paper and growing numbers of
confused, scared citizens getting victimized by their own city
government. Homeowners discover their nearly restored house is targeted
for demolition, and are forced through all nine circles of hell to
prove to their own city that the city is wrong. And some only discover
this after the home is bulldozed by the city. It’s horrible.
 
I
and a few talented individuals have taken upon ourselves to do what the
government should be doing: forcing the city to abide by its own laws
regarding demolition. This has turned into a herculean struggle, as the
degree of intransigence and incompetence in city government has
gradually come to light. Against rather long odds, though, there has
been progress.
 
About three weeks ago, I put out a rather voluminous email about demolitions. I detailed how New Orleans
Safety & Permits department was likely avoiding public review of
over 1200 demolitions through various sneaky means. Much has happened
since then, so let me bring you up to speed. There has been progress in
the administrative, legislative, and judicial arenas.
 
Administrative – The city never read the law
 
As
I mentioned in my earlier email, in late November the city inked a deal
with DRC Emergency Services, LLC for oversight of federally funded
demolitions. Demolition permits started getting issued to DRC on
December 5th. At first, all the permits were for properties in areas
which did not have any historic protections.
 
However,
on Tuesday, December 11th, Safety & Permits started issuing
permits in the historic areas. In my previous email, I had suspected
there was a pile of demolitions in the historic areas ready to go,
likely with damage estimates raised above 70%. I was proved right, as
24 demolition permits were issued to DRC on the 11th for properties
which should have required historic review, but didn’t because their
estimates were raised above 70%. The folks that I’ve been working with
on this issue noticed immediately, and threw up red flags in emails to
Safety & Permits personnel. This led to a nearly immediate change.
 
In
previous days, we had discovered a city ordinance which had been on the
books since May 3, 2006. It is section 26-10, and says that any
properties with storm damage estimates above 70% and which were within
National Register Districts (outside of local historic districts) were
supposed to be reviewed by the Historic Districts Landmarks Commission
(HDLC). HDLC is a far better run body than the other historic review
panel – the Housing Conservation District Review Committee (HCDRC).
 
HDLC
is interested in historic preservation, it has its own staff, and in
general has a more mature outlook on things. On the other hand, HCDRC
is made up of mostly mid-level city bureaucrats and is chaired by a
representative from the same body issuing demolition permits – Safety
& Permits. HCDRC’s role is to review demolitions of historic
properties outside the city’s local historic districts, while HDLC
reviews the stuff inside the local historic districts.
 
What
we found was that those 70% properties inside National Register
Districts had never been sent to HDLC, as the law called for. Three
such properties were included in the 24 that got demo permits on
December 11th.
 
A
stink was raised, and no permits were issued to DRC for five days.
Everyone in Safety & Permits and HDLC and DRC and in other sections
of city government had lots of meetings.
As of today, all
National Register District property demolitions with estimates above
70% are now being reviewed by HDLC, as required by the law.
 
Unfortunately,
at least 130 properties had already slid through Safety & Permits
without the statutory review since May, 2006. You may be wondering how
such a thing could happen? Didn’t Safety & Permits read the law?
The answer is “no.”
 
We have emails from
Safety & Permits admitting to such. You’ll find them below. These
emails became part of a lawsuit against the city (more about that
later), so they are now public documents.
 
The
emails were between Meg Lousteau, a fellow historic preservationist,
and Ed Horan, the Safety & Permits official charged with reviewing
demolitions for further historic review
From: Meg Lousteau
Sent: Tue 12/11/2007 8:24 PM
To: Edward J. Horan
Subject: demolition question
 
Hi Ed – I want to apologize again for unwittingly involving you in today’s mess.  I have never and would never question your integrity or
work ethic, or deliberately put you in a bad situation.  I
hope you understand that my concern, and the concern of many others, is
based on the confusing and varied demolition procedures, and the
difficulty we’ve had in getting information from the department.  From now on, I will contact you first with any questions I have regarding demolitions.
 
On that note, I do have a question that I hope you can help answer.  Below
is the municipal code that states that buildings in National Register
districts that have damage assessments at or above 70% are supposed to
be reviewed by HDLC.  To my knowledge (which is, admittedly, incomplete), no such buildings have gone before HDLC.  Am I misreading the ordinance, or has another
ordinance superseded it?  Or maybe it’s in conflict with another law? 
 
Thanks in advance for your help.
 
-Meg
 
Sec. 26-10. Demolitions within national register district.
 
Any
structure that is located within a national register district and which
has been determined by the department of safety and permits to be
substantially damaged by Hurricanes Katrina or Rita, and where the
damage is defined as 70 percent or more of the replacement value prior
to the hurricane damage as determined by inspection by the department
of safety and permits, and which structure is constructed below base
flood elevation according to the flood elevation maps issued by the Federal Emergency Management Agency
and in effect as of August 29, 2005, must be reviewed by the staff of
the historic district landmarks commission prior to issuance of a
permit for demolition.
 
(M.C.S., Ord. No. 22226, § 1, 5-3-06 )
In response,
on December 13, 2007 , Mr. Horan sent the following email to Ms. Lousteau:
On Dec 13, 2007 8:22 AM , Edward J. Horan < [email protected]> wrote:
 
Meg,
 
Yesterday
was the first time I have ever read Section 26-10 of the City Code. I
have read, re-read, quoted, cut and pasted, and mentally tattooed onto
my brain Section 26-6 of the City Code . I was certain that 26-6 (which
contradicts 26-10) was the Section governing the Housing Conservation
District. I have already alerted both Mr Centineo and Mr Perkins of my
ignorance of 26-10 and can assure you and them that all future
demolition applications will follow the procedure outlined therein.
This morning I will inform the permit analysts of the misunderstanding and of new process as required by law.
 
Edward Horan
Zoning Administrator
City of New Orleans
Department of Safety and Permits
In
response, Ms. Lousteau asked on December 13, 2007 as to whether Safety
& Permits would be reviewing their error, and having the permits in
question now reviewed by HDLC. Specifically, she was asking about a
permit application for 1231 S. Rampart St. , issued on December 12,
2007 .
From: Meg Lousteau
Sent: Thursday, December 13, 2007 11:41 AM
To: Edward J. Horan
Cc: Mike Centineo; Elliot Perkins
Subject: Re: demolition question
 
Hi Ed – thank you so much!  I can’t wait to forward this information to my fellow concerned citizens.  It’s a huge relief to know that so many demolitions will now get some kind of review.  We deeply appreciate your help with this.
 
We
noticed that at least one property seems to have slipped through the
cracks – the building at 1231 S. Rampart Street , which is in the Central City National Register
District, was issued a demolition permit yesterday.  I could be wrong, but shouldn’t this be going to HDLC?
 
[screenshot of permit application for 1231 S. Rampart St. from velocityhall.com]
 
That brings up another, very important question:  what steps will Safety and Permits take to rescind the erroneously issued permits that should have been reviewed by HDLC?  I think that all eleven I mentioned on Tuesday would now need to be reviewed, as
well as many more.  I can try to get a list of them, if that would help.
 
Many thanks,
Meg
Mr. Horan responded on December 14, 2007 :
From: Edward J. Horan
Date: Dec 14, 2007 12:39 PM
Subject: RE: demolition question
To: Meg Lousteau
Cc: Mike Centineo, Elliot Perkins
 
The
permit for 1231 S Rampart has not yet been issued, as you can see in
the information below the status is n/a and the fees have not been paid.
 
We will not retroactively apply this Section.  All future applications will be evaluated with Section 26.10.
 
Edward Horan
Zoning Administrator
Dept. of Safety & Permits
Cityof New Orleans
1300 Perdido St. Rm 7E05
New Orleans , LA 70112
So
now we know why some (but certainly not all) demolition permits were
not getting proper review. It was because Safety & Permits had not
read the applicable law since it was passed on May 3, 2006. In
addition, they will not correct their error, even though they admit to
it in print.
 
Legislative – Some things need to be changed
 
As
I mentioned, about 130 properties were affected (when I say “affected,”
I mean that a review was not performed – I do not mean that a
demolition could have been prevented) by Safety & Permits not
performing their duties as prescribed in law. However, those were only
a small slice of the over 1200 properties which did not receive any
historic review at all before demolition for the last two years. That
includes the batch of demo permits issued to DRC on December 11th (as
well as a few on December 12th, before the pause completely took hold).
Those properties, under the current law, are exempt from review, even
if the city was raising the damage estimates simply to avoid review.
 
The idea of public review of demolitions of historic properties in a town such as New Orleans
is excellent, especially considering the giant volume of demolitions
now underway. The city’s housing stock is precious, and any removal of
part of it should be thought through carefully and in public. Not only
is it wise to conserve historic housing, but it is also smart to have
an extra layer of review to prevent mistakes (which have definitely
been made).
 
Unfortunately,
the process has been subverted by loopholes in the law which should be
closed. One loophole – the 70% exemption from review – appears to have
no real basis other than accelerating a process that should, by its
nature, be deliberate. It should be repealed. It serves only the
interests of bureaucrats eager to impress their bosses.
 
Another
loophole – regarding properties to be demolished under the the Imminent
Health Threat law – also exempts such properties from historic review.
I can’t think of a reason this would be necessary, especially when one
considers the seemingly random and scattershot application of the
Imminent Health Threat law by the city. We are still trying to gather
all the various imminent health threat lists that have been published
over the last year. Thus far, we have collected at least five different
lists with dates from March until December 29th, with some properties
appearing on one list, dropping off the following list, and then
reappearing on a third list.
 
To
describe the Imminent Health Threat process as “haphazard” would be
generous. Thus, having a public check on a bureacracy known to make
mistakes is a good thing, and should not be subverted.
 
A
little clarification is necessary – Imminent Health Threat properties
are NOT properties about to fall down. Those properties are known as
Imminent Danger of Collapse. If they are truly about to fall down, I
have no problem skipping the historic review step. Imminent Health
Threat properties seem to be whatever Safety & Permits judges them
to be, whether they are an actual threat or not.
 
Unfortunately,
the law as it stands now allows all of this tomfoolery by the city
administration. Currently, the city is under no obligation to present
any but a small slice of demolitions for public review, due to the
loopholes in the law. To get those loopholes closed will take
legislative action on the part of the City Council. That particular
part of the story is being worked on actively, and will hopefully bear
fruit in January.
 
Judicial – Appeals process to be enstated
 
Just
before the public housing demolition debate captured the city’s
complete attention, another demolition dispute was wending its way
through the courts. A Federal suit had been filed against the city in
August claiming that private homeowners’ due process rights had been
violated by virtue of the city not having a clear administrative
process for review of demolitions. However, until I started slicing and
dicing the numbers, no one was sure of the extent of the problem. When
I found that over 1200 properties had bypassed HCDRC, and over 300 of
them had their estimates increased past 70%, that got the attention of
the lawsuit participants.
 
The
lawyers for the plaintiffs in the suit contacted me and asked if I
would write an affadavit describing my analysis of the city’s
demolition permits. I did so, and it was filed on December 18 in
advance of a planned evidentiary hearing in the case.
 
The Times-Picayune got a hold of it and wrote up an article the next day. You can find that article here:
 
City Inflating Damage, Lawsuit Says
Times-Picayune, 12/19/07
 
Many
officials – including possibly the mayor – were scheduled to testify at
the hearing. But the city apparently didn’t see the point in fighting
the suit, and agreed to enstate an appeals process for those people who
felt their properties were unfairly targeted for demolition. The paper
covered this as well:
 
Owners Can Appeal Demolition Orders
Times-Picayune, 12/20/07
 
I’m
sure this escaped a lot of peoples’ attention, because that was the
same day as the City Council vote on the public housing demolitions.
 
Frankly,
the very fact that such a process must be enstated is horrifying. Why
should someone have to worry about their house being demolished out
from underneath them if they have no reason to worry?
 
While
this result is nice, it does not address the core problems at hand with
the city’s demolition “process,” which is actually a mishmosh of poorly
managed and poorly documented multiple processes riddled with loopholes.
 
Recommendations
 
1) The 70% exemption from historic review needs to be eliminated.
 
This
exemption serves no purpose but to accelerate a process which should be
deliberate. The acceleration is likely to satisfy Federal funding
deadlines, which is not good public policy when one is talking about
the irrevocable act of demolishing a building.
 
2)
All properties to be demolished in the Housing Conservation District
must be reviewed by the Housing Conservation District Review Committee,
no matter what the reason for their demolition.
 
The
city has been exploiting loopholes in the law to ram through
demolitions without review. This must stop. What is so wrong with
simply reviewing demolitions publicly?
 
3)
The city should apply for an extension of the funding cutoff for
demolitions past the current February 29, 2008 date. That is when FEMA
expects the demolitions of approximately 1800 buildings to be completed
through the DRC contract. From what I understand, the city has begun
this process.
 
There
are hundreds of HCDRC-eligible and HDLC-eligible properties in that
list, and it will be impossible to adequately review them in time. The
HCDRC only meets every two weeks, which means there’s only 4 or 5
meetings before the funding gets cut off.
 
4) Adequate review means adequate review
 
What
I mean by this is timely publication of HCDRC agendas so that
neighborhood organizations, concerned neighbors, and (yes) surprised
homeowners can get to HCDRC meetings to speak their piece about a
demolition. Also those agendas should be compiled in accordance with
the laws of the city
 
We
know that is definitely not happening now. On December 26, 2007, the
city published a list of 114 “extra” properties which are being added
to the HCDRC meeting on December 31, 2007 (a previous agenda with
around a dozen properties was issued the previous week). This list is
culled from a bigger master list of properties being given to DRC for
demolition. This is the first in a growing wave of hundreds of
HCDRC-eligible demolitions on the DRC contract.
 
The
particulars of this list of 114 “extras” are interesting. All 114
properties have damage estimates below 70%, but many of the properties
are classified as Imminent Health Threats. This gives us a window into
the city’s thinking – they are strongly enforcing the 70% loophole, but
the Imminent Health Threat loophole is not as important anymore.
However, this appears to be a bureaucratic choice on the city’s part.
Their thinking could change at any time – unless the law is changed to
close the loopholes.
 
But
of course, even the batch of 114 extra properties is incomplete. We
have the list that the extra agenda items were culled from. There are
properties on that list that probably should appear on the 12-31-07
HCDRC agenda, but do not. On that list, there are:
 
– 21 HCDRC-eligible properties with NO damage estimate (so it is impossible to tell if they are above or below 70%)

18 properties with current estimates below 70%. This would appear to
match the rationale for the assembly of the HCDRC agenda, so it is
unclear why these properties are not included.
 
While
actually getting notice (however incomplete it may be) ahead of meeting
is a step forward, there is no way people can possibly respond in time
to obscure notice in the classified section of the newspaper if their
property is on this list. Three business days between Christmas
and New Years Day is nuts, but it’s just one more indication of the
hurry-up attitude of a city where demolition has become a proxy for
rebuilding. HCDRC and Safety & Permits must do a better job on
notifications.
 
Conclusion
Some people might wonder why I’m so interested in this. My interest is simple: I want to see government work correctly.
 
A
government that flouts its own laws is useless to the people it
supposedly serves. Over the past few weeks, I and my fellow historic
preservationists have struggled mightily to get the city to simply
follow its own legal procedures. The overarching goal of historic
preservation has become secondary to simply following the rules. It
should not be this hard.
 
My heart breaks to see what is happening. But at least there is a little sunshine.

 
Matt

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