Posted by: Patricia Salkin | October 7, 2016

LA Appeals Court Dismisses Preliminary Injunction Action Challenging Changes to Comprehensive Zoning Ordinance

Notwithstanding years of public listening sessions sponsored by the New Orleans City Planning Commission and public hearings before the Commission, which resulted in a recommendation for a specified complete overhaul of the City’s Comprehensive Zoning Ordinance, the City Council at the urging of Mayor Mitchell Landrieu substantively modified the Commission’s recommendation as it affected the distinctive Faubourg Marigny neighborhood. The neighborhood association and two of the residents of Faubourg Marigny joined in a suit to declare the adoption of the Mayor’s amendment, designated as MJL–6, invalid and to permanently enjoin its implementation. During the pendency of their suit, the plaintiffs and intervenor sought the issuance of a preliminary injunction to restrain the City “from issuing any permit or variance, or authorizing in any way any activity, under the terms of the new Section 18.13 of the City of New Orleans’ new Comprehensive Zoning Ordinance (“CZO”). Following a hearing on the request for the preliminary injunction, the district judge expressed dismay at the City Council’s tactics but concluded that he was bound to defer to its judgment in this matter. He therefore denied the request for the issuance of a preliminary injunction.

On appeal, the Improvement Association argued that both state and local law mandate that the City refer MJL–6 to the City Planning Commission, the City failed to adhere to this clear requirement, and the City’s failure to comport with the referral requirements rendered that portion of the CZO derived from MJL–6 null and void. It further contended that it did not need to prove irreparable harm at trial because the City’s passage of that portion of the new CZO as amended by MJL–6 violated a prohibitory law. The Improvement Association alternatively contended that even if the foregoing exception was inapplicable, it met its burden of proving irreparable harm through the allegations in its petition and the testimony of Ms. Suarez. The court noted that the requisite showing of irreparable injury is dispensed with “when the conduct sought to be restrained is unconstitutional or unlawful, i.e., when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law and/or a violation of a constitutional right.” While the Improvement Association made a compelling argument that the City’s enactment of Section 18.13 violated several procedural restrictions on the enactment of zoning regulations, the Improvement Association fatally did not assert that the statute as applied by the City violated any prohibitory law.

The court next found that Improvement Association’s evidence was, at best, speculative and hypothetical on the issue of irreparable harm. Specifically, Ms. Suarez’s testimony touching on irreparable harm was entirely predicated upon the happening of a series of uncertain, future events; such as a developer who elects to develop within the gateway area next door to Ms. Suarez in accordance with Section 18.13’s specified design standards. The court held that the Improvement Association, therefore, did not meet its burden of making a prima facie case that either it, or its members, would suffer irreparable loss in the absence of a preliminary injunction prohibiting the City from issuing permits in connection with Section 18.13.

Accordingly, the court concluded that the Improvement Association was not entitled to the issuance of a preliminary injunction as requested by it because it could not show either that it would suffer irreparable harm or that it had dispensed with the requirement of establishing irreparable harm.

Faubourg Marigny Imp. Ass’n, Inc. v. City of New Orleans, 195 So. 3d 606 (La. App. 2016)

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