195 So. 3d 606
La. Ct. App.2016Background
- The City of New Orleans undertook a multi-year rewrite of its Comprehensive Zoning Ordinance (CZO); the City Planning Commission produced several drafts (2011, 2013, 2014) that included a Riverfront Overlay District and limited "gateway" areas with design-based bonuses (height/FAR/density).
- Mayor Landrieu proposed amendments aggregated as MJL-6, which the City Council adopted May 14, 2015; MJL-6 expanded the gateway area to be coterminous with the entire overlay and made specified design features automatically entitle projects to height and density bonuses (up to +25 ft, +1.5 FAR, remove minimum lot area/unit).
- Faubourg Marigny Improvement Association, joined by resident-intervenor, sued to declare the MJL-6 portions of Section 18.13 invalid for failure to refer the amendment to the City Planning Commission, and sought a temporary restraining order and preliminary injunction preventing the City from issuing permits or otherwise acting under Section 18.13.
- The district court, while critical of the City Council’s process, denied the preliminary injunction; the plaintiffs appealed that denial. The appellate court reviews denial of a preliminary injunction for abuse of discretion.
- The appellate court affirmed the denial solely because plaintiffs failed to show irreparable harm necessary for a preliminary injunction (and were not entitled to the Jurisich exception dispensing with that requirement), and remanded the declaratory/permanent injunction claims for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs were entitled to a preliminary injunction barring City action under Section 18.13 | Improvement Assn.: City must be enjoined from issuing permits under MJL-6 because MJL-6 was not referred to the Planning Commission and is therefore invalid; injunctive relief necessary to prevent irreparable harm | City: Denial appropriate — plaintiffs cannot show irreparable injury; MJL-6’s changes are germane to the CZO process and need not be re-referred (Section 3-112(3) germane argument) | Denied: Plaintiffs failed to show irreparable harm; prelim. injunction properly refused (no abuse of discretion) |
| Whether the Jurisich exception (no irreparable-harm showing required) applies | Improvement Assn.: MJL-6 violates a prohibitory law (procedural referral requirement), so irreparable-injury showing is unnecessary under Jurisich | City: The requested relief sought to restrain permits (conduct) not to enjoin the enactment itself; Jurisich inapplicable | Held: Jurisich inapplicable because plaintiffs sought to restrain future City action under the ordinance (not to prevent the ordinance’s adoption or to enjoin a clear statutory violation as framed), so they must prove irreparable harm |
| Whether plaintiffs proved irreparable harm | Improvement Assn.: New high-density development will cause parking, traffic, noise, loss of sunlight/privacy, infrastructure overload — irreparable community harm | City: Allegations speculative; no developer has expressed intent; money damages or later declaratory relief may be adequate | Held: Plaintiffs’ evidence was speculative and hypothetical (single witness testimony about potential neighboring development); failed prima facie showing of imminent irreparable harm |
| Whether City Council could enact MJL-6 without formally referring that specific amendment to the Planning Commission | Improvement Assn.: State law, municipal code, and CZO require referral of zoning amendments to the Planning Commission before Council acts; failure to do so renders the amendment void | City: Municipal Code §3-112(3) allows amendments during consideration if germane to original purpose (argues MJL-6 is germane to CZO overhaul) | Court: Did not decide definitively on the merits due to ambiguous record; explained that specific zoning statutes/ordinances requiring referral (state law, City Charter, CZO) control over general amendment/germaneness rule; remanded for further factual development and resolution on declaratory/permanent relief |
Key Cases Cited
- Jurisich v. Jenkins, 749 So.2d 597 (La. 1999) (exception dispensing with irreparable-harm requirement when enjoining unlawful conduct in violation of a prohibitory law)
- General Motors Acceptance Corp. v. Daniels, 377 So.2d 346 (La. 1979) (prima facie standards for preliminary injunction: irreparable harm plus likelihood of success)
- Smith v. West Virginia Oil & Gas Co., 373 So.2d 488 (La. 1979) (preliminary injunction procedural principles; merits ultimately decided after full trial)
- City of New Orleans v. Elms, 566 So.2d 626 (La. 1990) (zoning as legislative police-power function and its purposes)
- Palermo Land Co., Inc. v. Planning Com’n of Calcasieu Parish, 561 So.2d 482 (La. 1990) (burden on party attacking zoning ordinance and requirement of strict compliance with procedural rules)
- Four States Realty, Inc. v. City of Baton Rouge, 309 So.2d 659 (La. 1975) (presumption of validity for ordinances adopted under police power)