How many ways can a city violate its own laws?

Jan 31, 2008 by

The latest in the ongoing letters of Matt McBride, syndicated from the email.

Dear New Orleanians,

How many ways can a city violate its own laws? A small committee inside New Orleans’ city government appears to be trying to answer that question.

First some fundamentals. The Housing Conservation District Review Committee (HCDRC) is the body charged with reviewing demolition applications in historic neighborhoods outside the city’s local historic districts. That geographic area – called the Housing Conservation District – is roughly south of I-610 on the east bank and also includes a small area near Algiers Point on the west bank.

The agenda for the HCDRC’s bi-weekly meetings is compiled by the city’s Safety & Permits department, which accepts demolition permit applications. Safety & Permits also chairs the committee, which is made up of mostly mid-level city bureaucrats and has no staff. The Committee meets in the offices of Safety & Permits. In effect, the committee is a wing of Safety & Permits, and has historically done that agency’s will, which is tilted toward approval of demolition permits.

One can find the laws governing HCDRC’s operation online at municode.com (http://www.municode.com/Resources/gateway.asp?pid=10040&sid=18). They are in sections 26-3 through 26-10. Those laws are not particularly long or complicated; they take up less than four pages. Yet the committee and Safety & Permits have somehow managed to display a stunning degree of ignorance of those rules (twice in the last two months it has been citizens informing city employees of the applicable laws), except where it was more advantageous to exploit them. In fact, it is difficult to find a law relating to HCDRC not ignored or exploited by Safety & Permits or the Committee over the past two years.

1) Review “all” properties

Let’s start with the most basic rule: all properties within the Conservation District are to be reviewed by the Committee. There are a few notable exceptions (more about them later), but generally “all” means “all.” Instead, as I have written before, over 900 HCDRC-eligible properties were just not included on HCDRC agendas since the storm. In the vast majority of cases, they were simply excluded for no other reason than to avoid review.

This pattern started with the third demolition application after Katrina and it continues to this day. Since I and other citizens first put the Committee and Safety & Permits on notice that we were aware of this avoidance in late November, 2007, over a dozen more properties have avoided review and have gotten demolition permits through this method.

2) The 70% loophole

One of the exceptions to review of all HCDRC-eligible properties was passed in April of 2006. It exempted properties with flood damage estimates greater than 70% from HCDRC consideration for demolition. Safety & Permits, the gatekeeper for both demolition applications and damage estimates, appears to have driven a truckload of demolitions through this loophole. Over 350 properties had their estimates revised above 70%, and then received demolition permits without HCDRC review.

But for a few scattered exceptions, nearly every property that had its estimate raised in this fashion was HCDRC-eligible. That is, this was not a citywide phenomenon of hundreds of property owners with derelict houses coming into City Hall independently of each other, looking to demolish. Instead, the pattern was confined almost entirely to the Housing Conservation District. I believe this was Safety & Permits operating under pressure from the Federal government to make maximum use of available demolition funds within tight time constraints, and finding any excuse to spend those funds, lest they appear foolish in front of Washington.

This problem, like the non-review of eligible properties, also continues. Since late November, over two dozen properties have avoided review by virtue of damage assessments getting increased above 70%.

3) But, some 70% properties should still get reviewed…

There was a codicil to that 70% exception passed in May of 2006. It stated that properties to be demolished within National Register Districts (which overlap the Housing Conservation District) were to be reviewed by the staff of the city’s Historic District Landmarks Commission (HDLC) if their estimate was greater than 70%. This particular provision is called “section 26-10” in the city code.

As I wrote earlier, the staff at Safety & Permits admitted – in print – that they never read that provision of the law. On December 13, 2007, Ed Horan, a Safety & Permits staffer responsible for review of demolition permit applications, wrote in an email to one of my colleagues, Meg Lousteau:

“Meg,

“Yesterday was the first time I have ever read Section 26-10 of the City Code…I have already alerted both Mr Centineo [head of Safety & Permits] and Mr Perkins [head of the HDLC] 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.”

At least 130 demolitions were affected by this admitted ignorance (they were never passed along to HDLC for review) – a blatant due process violation which remains unaddressed.

4) Inadequate notice

The notice provisions of the HCDRC laws call for publication of the Committee’s agenda in the newspaper. There are no provisions for adding properties to the agenda after publication. Yet there have been many instances of properties getting added on the day of the meeting.

At the November 26, 2007 HCDRC meeting, members of the City Attorney’s staff insisted on adding 19 properties to the agenda at the end of the meeting (after most members of the public had left), with no notice whatsoever. The Committee, instead of viewing this as against procedure and regulation, proceeded to vote on acceptance of the demolition applications, allowing 14 to proceed. In fact, they approved demolition of a property they had denied just two months earlier. That was also illegal. The city code says that properties cannot be demolished for one year after denial by the HCDRC (pending a City Council appeal, which did not happen in this case).

This was not the first time un-noticed properties had been added to the HCDRC agenda and then voted upon. It happened on July 9, 2007, when 23 properties came before the committee without public notice. All were brought by the city, not individuals. All but three were either approved or withdrawn because they had already been demolished. Those other three were deferred for future consideration, but were never considered again. Yet all three still received active demolition permits later in the summer (oddly on August 28 and 29, right before FEMA was due to stop paying for the Corps of Engineers to demolish houses).

I have found at least four other meetings just in 2007 where this happened.

5) No redevelopment plans submitted

One would think the city would have a vested interest in avoiding the jack-o-lantern effect of empty lots pockmarking historic neighborhoods. Instead, they actively encourage it.

One of the criteria for the HCDRC to evaluate demolitions is “the proposed plan for redevelopment.” Another is the “proposed length of time the subject site is anticipated to remain undeveloped.” Yet property demolitions are routinely approved without either of these pieces of information.

The November 12, 2007 meeting is a typical example. 13 properties were on the agenda that day. A 14th was added at the meeting, without prior notice. 9 of those structures had no redevelopment plans. All but one of those nine had their demolitions approved, and the ninth wasn’t approved because the wrong address had been placed on the agenda (also a common occurrence).

Nearly the same thing happened at the October 8, 2007 meeting: 6 properties were on the agenda, none with redevelopment plans. All but one were approved, with the sixth application withdrawn by the applicant.

Here’s one more example: on July 23, 2007, there were 32 properties on the HCDRC agenda. Not one had a redevelopment plan. Many (including over a dozen in the neighborhood of Xavier University) were planned to become vacant lots. Not a single property was denied a demolition permit that day.

The default position for the HCDRC is to approve demolitions, no matter whether they meet the criteria for evaluation or not.

6) Violation of the “30 day” rule

Another rule in the city code stipulates that the HCDRC must accept or deny a demolition application within 30 days of its submittal to Safety & Permits. If a decision is not reached within 30 days, the application is denied. The applicant may then appeal the decision to the City Council for a final ruling. This rule has been in existence since 2000.

Over the years, however, the HCDRC has seen fit to grant deferrals for properties. Sometimes, properties are deferred for months at a time. In some cases, this is done to allow neighborhoods and developers time to meet and discuss plans for a site. In other cases, owners don’t show up, or the committee sent notice to the wrong address, or some other reason. No matter the reason, deferrals to a time greater than 30 days after permit acceptance are not legal under the current law.

Some properties have been deferred for over 100 days, spanning half a dozen HCDRC meetings. Such delays are not unusual. Since Katrina, the HCDRC has reached decisions on over 190 properties after 30 days had passed after their applications were submitted. Over 170 of those were approvals. Under the 30 day rule, all should have been denied, with appeals going to the City Council.

Until January 28, 2008, the 30 day rule had never been enforced. At the HCDRC meeting that day, it was pointed out to the Committee (by citizens in the audience) that continual deferrals of properties, sometimes for months at a time, are illegal.

At first, members of the Committee – even when confronted with the actual printed verbiage from the city code – denied its applicability. It took assent from a representative of the City Attorney’s office (the City Attorney has been attending HCDRC meetings recently, as the circus nature of the proceedings has been publicized in the newspaper) to persuade the bureaucrats on the Committee that they were indeed violating the law.

When they finally saw the light, the Committee members immediately denied permits for all properties which violated the 30 day rule, some of which did so because the committee had granted deferrals. Or at least, they tried to do so. There were at least two properties which violated the 30 day rule, but which still got their demolitions approved.

Conclusion: Total reform is needed.

At its most fundamental level, the HCDRC should be following the criteria laid out in city law for demolitions. It should also be following the laws on proper notice, expediency of decision, and review of all properties. Instead, none of these things are happening.

The city has shown itself as a repeat offender in violation of its own laws. The best solution at this point is complete reform of HCDRC. Fortunately, there is pending legislation before the New Orleans city council to do just that. In addition, a recently signed consent decree provides punishment if the city does not shape up. Things are moving forward to bring accountability and sanity to a process that so far has been opaque and insane.

Matt

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