NEIGHBORS FIRST FOR BYWATER, INC., JOHN ANDREWS, GEORGIA AINSWORTH, LANE LACOY, BART THERIOT, JOE BROWN AND KATHY BROWN
THE CITY OF NEW ORLEANS/THE NEW ORLEANS CITY COUNCIL
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-06148,
DIVISION "B" Honorable Regina H. Woods, Judge
M. Galante Salvador I. Bivalacqua Lauren M. Bergeron GALANTE
& BIVALACQUA, LLC FOR PLAINTIFF/APPELLANT
Cherrell S. Taplin SENIOR CHIEF DEPUTY CITY ATTORNEY Adam J.
Swensek, CHIEF DEPUTY CITY ATTORNEY Daniel T. Smith ASSISTANT
CITY ATTORNEY Tanya L. Irvin ASSISTANT CITY ATTORNEY Rebecca
H. Dietz CITY ATTORNEY FOR DEFENDANTS/APPELLEES
Cheatwood Matthew A. Woolf Meghan E. Carter BAKER DONELSON
BEARMAN CALDWELL & BERKOWITZ, PC Ike Spears SPEARS &
SPEARS FOR DEFENDANTS/APPELLEE, PELICAN ROYAL, LLC
composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina
Jenkins, Judge Paula A. Brown
A. Brown, Judge
matter arises out of Appellee's, the City of New Orleans,
through the New Orleans City Council ("the City
Council"), decision to grant a Conditional Use Permit to
Appellee, Pelican Royal, LLC ("Pelican Royal").
Appellants, Neighbors First for Bywater Inc., John Andrews,
Georgia Ainsworth, Lane Lacoy, Bart Theriot, Joe Brown, and
Kathy Brown (collectively, "Appellants"), argue
that the district court erred in denying its appeal of the
City Council's decision. For the reasons that follow, we
affirm the judgment.
AND PROCEDURAL BACKGROUND
January 4, 2016, Pelican Royal submitted an application to
the City Planning Commission ("the CPC") for a
Conditional Use Permit to build and operate a hotel/hostel
("the Project") for property located in the
historically designated Bywater District of New Orleans.
Before the hearing, the CPC Staff reviewed the application
and recommended its approval, subject to fourteen provisos to
address community concerns.
March 22, 2016, the CPC held a hearing, wherein parties were
able to voice their opinion in support of or in opposition to
the Project. David Wool worth-Pelican Royal's acoustics
and noise control consultant-told the CPC that he had been
recently retained to conduct a noise analysis. He explained
that it was the developer's intention to minimize noise;
however, he acknowledged that his report on the noise levels
was incomplete. Other supporters of the Project said the
Project would spur economic development, and bring amenities
to the community-such as a coffee shop and a laundromat.
contrast, the opponents to the Project argued that the
Project was out of scale and did not fit the character of the
neighborhood. Opponents raised concerns about the increased
noise that would be generated by visitors to the Project and
traffic congestion in the surrounding area. The opponents
also questioned whether the Project would encourage community
residents to convert their homes into short-term rentals.
hearing public comments, the CPC voted to deny the
application by a vote of seven to zero. The CPC provided the
following "Reasons for Recommendation, " outlining
their denial of the Project:
1. Despite the attempts from the applicant to address the
concerns of neighbors, the development proposal is out of
scale with the neighborhood.
2. The sound study done by the applicant's consultant is
not complete so the true noise impact cannot be accurately
3. There were some concerns raised by the Commissioners that
the hotel would contribute to the trend of displacement of
long-term residents in the area in favor of transient
after the denial by the CPC, Pelican Royal applied to the
City Council to have the decision of the CPC
reversed. The hearing was held on May 19, 2016.
people spoke in favor of the Project, including Pelican Royal
representatives. The representatives explained that the
Project's scale had been modified to address concerns
voiced by residents and the CPC in its recommendation for
denial. They specifically referenced the reduction of the
Project's size by several thousand square feet and the
implementation of a noise abatement plan. Their acoustics
consultant expert, Mr. Woolworth, provided an updated
sound/noise level report that addressed methods to reduce
noise levels. Supporters disputed that the Project would
result in displacement of residents. They noted that the
Project's proposed location was currently a vacant lot
and stressed the Project's objective is to bring
employment opportunities to the community and generate
revenue. Neighborhood supporters also emphasized that the
Project would attract more businesses, expand the tax base,
and create jobs.
opponents spoke against the Project and underscored that the
Project would negatively impact the community's quality
of life. They reiterated concerns previously voiced at the
CPC hearing, including excessive noise levels, the scale of
the Project, parking availability, and traffic congestion.
Residents expressed doubts that Pelican Royal could control
noise or crowd levels. They also complained that they had
just recently received Pelican Royal's updated noise
level report; consequently, they challenged the report's
validity and requested more time to review its conclusions.
City Council member offered their respective views on the
Project. Councilmember Ramsey-in whose district the proposed
Project is located-stated that she and her staff had met with
the developers and the residents on multiple occasions.
Councilmember Ramsey noted that the Bywater District is
historically a mixed use neighborhood with industrial and
commercial uses. She explained that:
The lots at issue and the conditional use are zoned
"HMC-2 commercial." The definition of
"HMC" states that it is intended to permit more
intense commercial uses especially on major traffic arteries.
Some of the design and use-design goals and use of the land
use plan of the Master Plan-are to have retail and other uses
at neighborhood edges on under-utilized industrial commercial
land, to establish gradual transitions between small scale
and larger scale developments, to promote infield development
on vacant lots in existing neighborhoods, to design mixed-use
neighborhood centers on large sites, such as under-utilized
or vacant retail or industrial parcels which integrate large
mixed-use sites into the surrounding street grid. This
project meets all of those goals in many ways. It's a
former industrial site that has been vacant for years. It has
a mix of uses: a restaurant, community space, laundromat,
coffee and juice bar; it will employ at least 50 people and
the applicant has worked very hard and has committed to work
with training programs and to hire locally.
Ramsey acknowledged some initial reservations about the
Project, which caused her to ask Pelican Royal to submit more
detailed plans. She also added provisos which were more
restrictive than the fourteen recommended in the CPC Staff
Report. She noted that Pelican Royal agreed to seventeen
provisos suggested by the City Council, some of which
included: a noise abatement plan approved by the Department
of Safety and Permits; architectural design plan approval by
the Historic District Landmarks Commission (HDLC); a complete
Stormwater Management Plan; revised landscaping plans;
installation of short-term bicycle parking spaces;
limitations on signage; a litter abatement plan approved by
the Department of Sanitation; limitations on amplified noise
in common areas; limitations on bar operating hours; and
limitations on capacity in outdoor areas.
Ramsey disputed that the Project included any outdoors
mega-bar and commented that the Project also included more
parking spaces than required. After careful study of the
Project, the goals of the Master Plan, and the addition of
her recommended provisos, Councilmember Ramsey concluded that
the Project's proposed use fit into the Bywater District
mixed-use neighborhood, and the goals of the Master Plan.
She, then, moved to approve Pelican Royal's request for
the Conditional Use Permit.
Williams lauded Pelican Royal for its efforts to respond to
community concerns. However, he said he was compelled to say
"no" to the Project. He cited the Project's
prime location and questioned whether its use, which catered
to tourists, made sense for Bywater residents.
Head noted the Project's proposed location was presently
on vacant land. She determined the Project's intended use
did not contradict the City's Master Plan and was allowed
by law; accordingly, she stated that she would vote for the
Gray also supported the Project. He stressed that business
people should be able to review the City of New Orleans'
("the City") regulations and have some
predictability about the City's decision-making process.
He also explained that the Project would create jobs and
increase the City's tax revenue.
Guidry, likewise, stated her support for the Project. She
believed the developers were "straight shooters."
She concluded the Project would help the neighborhood, the
provisos were thoughtful, and the overall proposal fit with
the Master Plan.
Cantrell acknowledged the community was divided over the
Project. She favored the Project, after weighing the
residential and commercial interests, considering the Master
Plan, and acknowledging that the Bywater area was zoned for
the use proposed by the Project.
Brossett also expressed support for the Project. He
highlighted the positive economic impact of the Project and
that property on vacant lot would be returned to commerce.
end of their discussion-and after hearing from opponents and
supporters of the Project-the City Council passed Motion
Number M-16-206 ("the Ordinance") to grant Pelican
Royal a Conditional Use Permit, by a vote of six to one.
Councilmember Jason Williams opposed the motion.
17, 2016, Appellants filed a "Petition For Declaratory
Judgment and Injunctive Relief And For Issuance Of Writ Of
Review And/Or Certiorari" (the "Petition") in
the Civil District for the Parish of Orleans to review the
City Council's decision. The Petition named the City,
through its City Council, as a defendant. In the Petition,
Appellants asserted the City Council's decisionmaking
process violated the City's Comprehensive Zoning
Ordinance ("the CZO"), the City's Master Plan,
and represented a clear abuse of discretion. Appellants'
prayer for relief included the following: 1) a declaratory
judgment finding the changes approved by the City Council
null and void; 2) alternatively, reversal of the City
Council's decision and a remand to the appropriate City
agencies to review in accordance with appropriate procedures;
3) issuance of an injunction to suspend the passing of any
ordinances regarding Pelican Royal's Conditional Use
Permit; 4) rendition of a declaratory judgment finding that
the City acted in violation of the Louisiana Constitution,
the laws of the State of Louisiana and the City of New
Orleans; and 5) issuance of a judgment declaring that the
City and its administrative agencies exceeded their authority
and acted arbitrarily and capriciously in granting the
Conditional Use Permit. In response to Appellants'
Petition, Pelican Royal filed a "Petition for
Intervention" to protect its rights and enforce its
district court ordered the City, Pelican Royal, and the
Appellants to provide briefs prior to the hearing. After
submission of the briefs, the district court heard oral
argument on October 14, 2016; and following the hearing, took
the matter under advisement following the hearing. On
November 22, 2016, the district court rendered its Judgment
and Incorporated Reasons for Judgment, which denied
Appellant's appeal. The judgment and its incorporated
reasons stated, in pertinent part:
For the reasons provided, and in accordance with the
statutory and jurisprudential authorities, it is HEREBY
ORDERED, ADJUDGED, AND DECREED that ...