April 01, 2016 Best of ABA Sections

A Tale of Two Cities’ Preservation Laws

Garreth A. DeVoe

This article highlights the age-old struggle of weighing a city’s need for preserving its unique physical identity against its desire for economic development by comparing Vieux Carre in New Orleans, Louisiana, and the historic district of Charleston, South Carolina.

New Orleans’s Vieux Carre. The French Quarter of New Orleans, or the Vieux Carre, has been considered the heart of the city’s expansive tourist industry for decades. The protection of the Vieux Carre’s “distinctive charm, character, and economic vitality” is embedded in the Louisiana Constitution.

The first legal instance of historic preservation was Section 22 of Article XIV of the Louisiana Constitution of 1921, which authorized the mayor of New Orleans to appoint any city commission with full authority other than the typical functions of the municipal government. Almost two decades later, the Louisiana legislature added Section 22A, which specifically authorized the creation of the Vieux Carre Commission (VCC). This amendment was enacted specifically to preserve “buildings in the Vieux Carre section of the City of New Orleans as, in the opinion of said Commission, shall be deemed to have architectural and historical value . . . for the benefit of the people of the City of New Orleans and the State of Louisiana.” Within these boundaries, the amendment delegated to the VCC the authority to review all construction addition or alteration permit applications “as they relate to the appearance, color, texture of materials and architectural design of the exterior” of the building, “any portion of which is to front on any public street.” Specifically, the city enacted an ordinance that largely mirrored Section 22A, except that the ordinance granted the VCC the additional power to review exterior alteration plans, “including the front, sides, rear and roof of said building.”

In City of New Orleans v. Impastato, 3 So.2d 559 (La. 1941), the first case challenging the constitutionality of this amendment, the Louisiana Supreme Court declared that Section 22A delegated to the city the authority to make all construction plans for all exterior surfaces within the Vieux Carre comport with a historic preservation objective. The ordinance passed by the city council enabling the VCC to review permits to alter the exterior of the rear and sides of Vieux Carre structures was declared constitutional despite the fact that the alterations did not front public streets.

In the second case, City of New Orleans v. Pergament, 5 So.2d 129, 131 (La. 1941), the supreme court rejected the owner’s argument that the law was intended solely to preserve the appearance of historic buildings rather than including modern structures. The court held that the law applies to the entire Vieux Carre neighborhood rather than solely to the oldest buildings in order “to preserve the antiquity of the whole French [Quarter].”

In the 1976 case of City of New Orleans v. Dukes, 427 U.S. 297 (1976), the U.S. Supreme Court reviewed the constitutionality of a solely economic promotion provision of the Vieux Carre historic preservation ordinance. The Court found that prohibiting pushcart vendors furthered the city’s stated goal of preserving the appearance of the French Quarter as these vendors may disturb tourists and curtail tourism, which is a large part of the New Orleans economy.

Charleston’s historic district. Similar to New Orleans’s French Quarter, Charleston has a historic residential area containing walled gardens, artistic gateways, and stately houses. Many of the structures predate the American Revolution, and the city may be called the cradle of history of South Carolina.

The Zoning Ordinance of Charleston was first adopted in 1931. Article XI of the ordinance provides “for the appointment of a Board of Adjustment, and such Board has the power, in appropriate cases and subject to appropriate conditions and safeguards, to vary or make special exceptions to the terms of the Zoning Ordinance, in harmony with its general purpose and intent.”

In 1982 the City of Charleston began to control height allowances in the King Street neighborhood by proposing that Marion Square be surrounded by buildings no more than four to six stories. In 1999 Charleston’s Downtown Plan was passed with its overall purpose being the preservation of downtown Charleston as a historic district. In discussing the blocks immediately surrounding Marion Square, the Downtown Plan states that special attention must “be paid to preserving the prominence of the church steeples and the old Citadel building,” which is adjacent to the rear of 404 King Street.

The better set of preservation laws. Louisiana courts have shown an increased willingness to preserve the historic architecture and pedestrian scale of the Vieux Carre of New Orleans, while South Carolina courts have been less willing to preserve those aspects of the Old and Historic District of Charleston. This is likely a result of intuitively opposite policies used to encourage economic development. In historic preservation and land use cases, Louisiana courts repeatedly state that the uniqueness of the French Quarter as a whole contributes to the district’s status as an economic engine. On the other hand, South Carolina courts have emphasized the particular facts surrounding certain projects in land use cases to generally find in favor of, rather than restrain, development. Contrasting the majority’s reasoning in Historic Charleston Foundation v. City of Charleston, 734 S.E.2d 306 (S.C. 2012), with the minority’s reasoning and the reasoning of Vieux Carre Property Owners and Associates, Inc. v. City of New Orleans, 167 So.2d 367 (La. 1964), reveals two distinct underlying economic policies.

The issue in both Historic Charleston Foundation and Vieux Carre Property Owners was whether a city ordinance exempting at least one lot from zoning restrictions should be allowed to stand. After the plaintiffs in Vieux Carre Property Owners alleged that the zoning exemptions would decrease the character of the neighborhood (and thereby lead to a decrease in rents), the Louisiana Supreme Court overturned the ordinance. Significantly, the court found that the purpose of the VCC was to preserve “the architectural and the historic value of the buildings situated in the Vieux Carre” and to “preserve the antiquity of the whole French and Spanish quarter” because “‘[t]he preservation of the Vieux Carre as it was originally is a benefit to the inhabitants of New Orleans generally, not only for the sentimental value of this show place but for its commercial value as well, because it attracts tourists and conventions to the city.’”

This reasoning is sharply distinguishable from that of the South Carolina Supreme Court in Historic Charleston Foundation. There, the court held that an ordinance granting a zoning exemption of a lot that was previously a zoning anomaly in the area did not constitute spot zoning and appeared to be dismissive of facts that did not support this position. The court further held that, even if the ordinance constituted spot zoning, the “particular circumstances of the case” prevented the court from overturning the ordinance. Presumably, the particular circumstances alluded to the fact that the exempted property would likely be turned into a nine-story hotel.

The difference between the two courts’ reasoning is likely a result of different underlying economic policies. While the South Carolina Supreme Court majority attempts a piecemeal approach by carving out new exceptions for prospective Old and Historic District of Charleston businesses that it believes will not be a detriment to the neighborhood, the Louisiana Supreme Court holds to the bright line rule that spot zoning per se is a detriment to the historic neighborhood. Although both policies support economic development, Louisiana’s strategy has the additional benefit of better maintaining the original historic architecture and a more pedestrian-friendly environment.

ABA Section of Real Property, Trust & Estate Law

This article is an abridged and edited version of one that originally appeared on page page 113 of Real Property, Trust and Estate Law Journal, Spring 2015 (50:1).

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Garreth A. DeVoe

Garreth A. DeVoe is a 2016 JD/MBA candidate at Tulane University Law School and, beginning in May 2016, a term judicial law clerk for the Honorable Caroline E. Baker of the 295th District Court of Texas.