B.Occupying or Demolishing Buildings

B.Occupying or Demolishing Buildings

1.Standards for Limiting Occupancy

Large scale disasters, such as Hurricane Katrina, present formidable challenges to building departments. In November 2005, the New Orleans Department of Safety and Permits advised that inspectors had surveyed the exteriors of 114,127 buildings and placed red tags on 3,140 buildings, denoting them as unsafe to enter; this number increased to 5,534 by the end of December, 2005. By November, yellow tags had been put on 79,325 buildings, indicating only partial structural damage, and 31,662 of the buildings inspected had minimal or no damage.⁶² Similar inspections have been performed throughout the areas affected by Hurricanes Dennis, Katrina, Rita and Wilma during 2005. Widespread building damage is common in other types of disasters. Although on a much smaller scale, the 1989 Loma Prieta Earthquake in the San Francisco Bay Area resulted in over 8,500 units becoming uninhabitable, either yellow- or red-tagged.⁶³

When buildings that house essential public services, such as hospitals, police and fire stations and telecommunications facilities, have been damaged in a disaster, a closer look should be taken before the building is designated as unsafe to enter, and negotiations with building department officials may be required. The author is familiar with such negotiations concerning a high-rise building in Oakland, California that was damaged by the 1989 Loma Prieta Earthquake. The building was filled with vital local and long-distance telephone switching gear, essential for the continued provision of telephone service (which was not widely interrupted by the earthquake) to Northern California and other parts of the Western United States. Despite significant damage to the building (which eventually cost in excess of $100 million to repair), the switching equipment was not damaged and continued to function. Continued access to the building was vital to maintain the equipment. After negotiations, Oakland building officials agreed to put the building in the “yellow tag” category, permitting that continued access.

For buildings that are badly damaged, demolition or major renovation is often thought of as the appropriate response. Most states have statutory authority to abate nuisances, condemn buildings that present hazards, and demolish condemned buildings as needed to protect the public. Some statutes permit pre-condemnation entry into private property to assess the structure. The New Jersey statutes provide a good example.⁶⁴ Demolishing non-historic buildings damaged by a disaster would not seem to present many issues. Some jurisdictions may tie issuance of a demolition permit to approval of the project that will replace a demolished building, but in the author’s experience after a disaster local authorities want damaged buildings to be demolished, especially if they may pose a safety hazard. This reasoning has not always been accepted in New Orleans, however. New Orleans officials have suggested that thousands of houses might require demolition. The city planned to raze about 2,000 houses deemed to be threats to public safety, but met strong opposition. After an action was filed in U.S. District Court, the city agreed to a process for notifying property owners by mail, newspaper advertisements and website announcements before demolition of structures (including structures that had collapsed into the public streets).⁶⁵

2.Demolishing or Renovating Historic Buildings

Demolishing historic buildings, however badly damaged and however unsafe to the public, often presents difficult historic preservation issues. New Orleans offers an extreme example of these issues, because the city contains 20 historic districts with about 37,000 historic structures.⁶⁶ Some of the issues involved in altering or demolishing buildings in New Orleans are discussed below. Charleston, S. C. faced a similar problem on a lesser scale after Hurricane Hugo in 1989, when more than half of its 4,000 historic structures were damaged.⁶⁷ It has been suggested that four hundred structures either listed or eligible for listing on an historic place register were damaged by the 1989 Loma Prieta Earthquake in the San Francisco Bay Area, and as many as one hundred of them were demolished within the following month.⁶⁸

Most real estate attorneys are familiar with the problems of dealing with “historic” structures, whether listed on the National Register of Historic Places, a State register or a local register. The tax credits for restoring qualifying historic buildings certainly can assist a developer, but after a disaster the first question may be whether the structure can be renovated or demolished at all under the relevant codes and regulations. The decisions made by the complex system of boards and regulations protecting the historic character of New Orleans will provide interesting examples of the conflict between concerns about safety and economic development and concerns about historic preservation, as it recovers from Hurricane Katrina.

New Orleans. The City of New Orleans has tight controls over the demolition and renovation of historic structures. There are four primary boards responsible for historic preservation and for reviewing applications for renovation, expansion or development of structures within their respective jurisdictions. Although some Louisiana municipalities affected by Hurricane Katrina or Rita may have historic sections, historic preservation processes are not a significant rebuilding issue in Louisiana outside of the City of New Orleans. The first, oldest and most preeminent historic commission is the Vieux Carré Commission (“VCC”). The VCC derives its authority from the Louisiana Constitution,⁶⁹ and has jurisdiction over the area commonly known as the Vieux Carré (the French Quarter). The VCC board, appointed pursuant to the enabling legislation, consists of elected officials, citizens and design professionals. The VCC has far-reaching authority over changes to structures within the Vieux Carré, even down to the color of exterior paint. Although its buildings were damaged by wind, flying debris and trees, the French Quarter did not flood and was not as severely damaged by Hurricane Katrina as most other areas of the city. As described below, exceptions to its rules will likely not be an issue; nevertheless, soon after the Vieux Carré was opened to businesses and residents, the VCC staff posted conspicuous notices on buildings reminding owners of their obligations to comply with VCC rules in doing repair work.

The second board is the Historic District Landmarks Commission (“HDLC”). The HDLC has jurisdiction over areas of the City of New Orleans designated as historic districts, other than the Vieux Carré and the Central Business District (“CBD”). There is a process under its enabling ordinance for designation of historic districts within its jurisdiction. Buildings within any district subject to the HDLC are color-coded to indicate their historic significance (or lack thereof). Building owners are given more flexibility with less significant buildings. But for more significant buildings, there is a review and approval process for certain kinds of improvements, expansions and demolition. The CBD HDLC is a parallel board to the HDLC and governs the Central Business District. The HDLC and CBD HDLC derive their authority from city ordinances.⁷⁰ Their members are appointed, representing various districts of the City and organizations with an interest in the planning process. There are some buildings within the jurisdictions of the HDLC and the CBD HDLC that may require demolition as a result of the damage they sustained from Katrina.

Last, but perhaps most significant to these discussions, is the Housing Conservation District Review Committee (“HCDRC”), also a creature of ordinance.⁷¹ The HCDRC enabling ordinance prohibits demolition of any retail or commercial structure within the HCDRC's district without prior review and approval by the HCDRC (and there is an appeal process to the City Council). The HCDRC jurisdiction covers a substantial majority of the City of New Orleans that is not otherwise subject to the jurisdiction of the VCC, the HDLC or the CBD HDLC, including many areas that were badly flooded, such as Lakeview, Gentilly and the Ninth Ward. Motivated by a desire to preserve the unique housing stock in the City of New Orleans and to slow the replacement of historic and diverse residential stock with “McMansions,” the original ordinance was limited to residential structures. At the urging of various neighborhood organizations, the ordinance was amended to cover almost any kind of structure. Pre-Katrina, the HCDRC and its review process became a lightning rod for neighborhood disputes. Neighborhood organizations argued that the approval process preserved neighborhoods; businesses complained that the HCDRC inhibited progress and smacked of NIMBYism. As of these materials were being prepared, no significant demolition had begun. Residents are still ascertaining whether they can or cannot rebuild, and many are waiting for insurance evaluations and proceeds. Early on, New Orleans Mayor Ray Nagin floated the idea of dispensing with some of the HDLC, CBD HDLC and HCDRC approval processes to speed the demolition and rebuilding process. Draft proclamations were prepared. Because of its limited damage, its uniqueness and the constitutional charter, the VCC was not included in those proposals. The mayor’s suggestion was quickly criticized by various local and national preservation groups. No formal action had been taken as of the writing of these materials. The potential of conflicts between the powers of the HCDRC and the redevelopment body proposed for New Orleans by Mayor Nagin’s “Bring New Orleans Back Commission,” discussed below, are unresolved.

Other Examples. California and New Jersey provide examples of ways to protect buildings listed on registers of historic places. A structure in California that is listed in the National Register of Historic Places, the California Register of Historic Places or any local register and that is damaged by a natural disaster may not be demolished or altered, except to restore the structure, unless one of two criteria is met. If the damaged structure “presents an imminent threat to the public of bodily harm or of damage to adjacent property,” or if the State Office of Historic Preservations determines that the structure may be demolished or altered, then demolition or alteration of the structure may proceed. The determination of the State Office of Historic Preservation “shall be based upon the extent of damage to the structure, the cost of rehabilitating or reconstructing the structure, the structure's historical significance, and any other factor deemed to be relevant.”⁷² If the structure is not listed on the federal, state or local register but is considered an historic resource, then alteration or demolition may require review under the California Environmental Quality Act (“CEQA”)⁷³ if the local government requires any discretionary permit for the project. Such a project would be exempt from CEQA review, however, if the governor has acted under the state’s Emergency Services Act⁷⁴ to declare a state of emergency.⁷⁵ As a result, buildings that may have been eligible for listing on the federal, state or city register, but were not, and were damaged after the Loma Prieta earthquake, could be demolished if local approval was obtained. The author is aware that several such buildings were demolished.

New Jersey statutes provide some protection for historic resources against governmental action in emergencies. Before the state or a local agency may undertake a project that could result in a “physical effect” on a property listed in the New Jersey Register, the agency planning the project must file an application with the Department of Environmental Protection. If the Department determines that the project will encroach upon or damage the listed property, after review by the State’s Historic Sites Council, then the Department may approve or deny the application or approve it with conditions. If an emergency undertaking needs to be implemented by the State or a local government within thirty days of an emergency, the statute provides for an expedited procedure that requires response by the Department within seven days after its receipt of a completed application. The Department still has the authority to deny the application for the project.⁷⁶

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