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Legal Arguments Against the Zoning Request for
Short Street High-Rise

1. The staff recommendation contained in the City Planning Commission Report is a "de facto" denial. The fact that several sections of the City of New Orleans' Master Plan, Land Use Plan and other policy planning tools are in direct contradiction to this proposal demonstrates that this is NOT in accordance with these standards and should clearly be denied. The City Planning Commission should consider the staff report a denial and recommend a denial to the City Council.

2. Regarding the alternate "project" which the staff has suggested in the staff report: We oppose this "project" on the basic issue that this new project is not "on the table" for consideration. This alternate plan was not part of the application process. Standing to request a change in zoning is vested with the owner of the property. Furthermore, if the property owner or any other group (with appropriate legal authority) would like to present an alternate proposal in a legal and formal application, the process must start over with a new application with all substantive and procedural due process issues considered.

3. "Contract zoning" is illegal. Zoning (or the request to change zoning) is not a bargain between two parties. The City Planning Commission nor the City Council cannot bargain over the "health, safety and welfare" of our community. Consideration of alternate projects, including negotiations with staff, neighbors, appointed officials or elected officials, is the framework of a contract. A bi-lateral approach to the planning process (demonstrated by the "back and forth" exchange of proposals evident in this case) is specifically prohibited and is illegal.

4. The proposed change in the zoning on Short Street consists of multiple and significant changes to the zoning laws of the community. It asks to change the zoning map and the application of a new zoning classification. The standard for either part of this request is the "change or mistake" rule. Briefly, the rule states that one must find a significant change in the circumstances of the neighborhood or a mistake or flaw in the original zoning to legally justify a modification. A zoning classification change from RD2 to RM3 is not justified under the "change or mistake" rule. No change in the neighborhood has occurred in almost 100 years and clearly there was no mistake in the original RD2 zoning.

5. Finally, the serious legal issue of "spot zoning" must be considered as applied to this zoning change request. The rule of spot zoning of "treating one property differently from the surrounding properties" is demonstrated in this case. The fundamental issues in a spot zone situation are "equal protection" and "fair treatment." In planning terms the standard is "consistency with the plan and the character of the neighborhood." This proposed zoning change for seven lots on a very small triangular parcel of land, resulting from the right of way for Leake Avenue, violates all of these standards. This parcel is not a whole block and does not meet the minimal size criteria required for exemption from the so-called "spot zone" standard. If fact it is less than a third of the original block, created when the levee was built several decades ago. This request for a change in zoning is clearly a "spot zone" and thus must be summarily denied.

Stephen D. Villavaso, AICP, J.D.
Land Use/Zoning Law Expert
Villavaso & Associates, LLC
February 1, 2004

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