FREE NEWCOMB BLVD.
II. FACTS
A. History and Location of Newcomb Boulevard
Since 1917, Newcomb Boulevard has been a dedicated public street providing one of the few connections between St. Charles Avenue to Freret Street near Tulane and Loyola Universities in New Orleans. After its closure in 2006, traffic that formerly might have used Newcomb was funneled to Broadway and St. Charles. City traffic engineers say the intersection of St. Charles and Broadway is one of the most congested intersections on St. Charles Avenue, and traffic often backs up in all four directions at the intersection.
B. Prior Attempts to Close Newcomb Blvd.
Residents of Newcomb Boulevard have repeatedly complained and tried to
close the street since at least 1990, but until the 2006 illegal permit was issued, had always been rebuffed. According to former City Traffic Engineer Elmer Darwin, before the closure,
Newcomb residents had investigated the possibility of purchasing the street bed, even going so far as to obtain a price quotation from the Department of Property Management, at which point the
inquiry ended.
C. The USI Study
In 2005, Newcomb residents complained of alleged speeding and “cut-through traffic,” which one Newcomb resident described as the use of the public street by “people . . . who
don’t live there and just use it as a trespass.” As a result, the City hired Urban Systems, Inc. (USI) as an expert consultant to study the issue and “present findings and make
recommendations.” The USI report characterizes the complaint as “traffic that is
using [Newcomb Boulevard] as cut-through to avoid congestion on St. Charles Avenue.” Finding that there was some speeding, but that the volume of cut-through traffic was “normal and not
excessive,” USI did not recommend closing the street, but suggested speed humps, and recommended that another study be conducted prior to even installing the speed humps. The 2005 USI study did
not consider the effect of a closure of Newcomb on other area streets.
D. The Permit
On January 31, 2006, on his last day as Director of Public Works, John Shires, who is not a traffic engineer, wrote a letter to NBA President LeClercq granting “approval to
proceed with the closure of the street at Freret.” The permit provided no
justification for the closure and did not state how the closure was to be effected. Nor did Shires require the residents to purchase the street in order to close it, despite the fact that, in
2003, he had required residents of Trianon Plaza to pay $ 93,000 before they would be permitted to close it.
E. Lack of a Basis for Permit
Elmer Darwin, the City's Chief Traffic Engineer from 1986 to 2008, said that a fence “would not be something that I would consider as an alternative to speeding,” and
that, while he did not recall everything that happened in connection with the closure of Newcomb, that he would have disagreed with it “unless there was some extremely difficult or high conflict
situation . . . high accident situation.” During his tenure as Chief Traffic Engineer, Darwin “never saw anything like that,” and could not think of any reason to recommend closure of Newcomb.
F. The Fence
In 2006, based on Shires’ permit, NBA, using private funds contributed by some of the residents of the street, erected a wrought iron fence at the Freret Street end of Newcomb
Boulevard, blocking all motor vehicle traffic from entering or leaving Newcomb at Freret thereby rendering it a cul-de-sac and effectively deleting the intersection from the street grid.
Pedestrian traffic can still use the sidewalks to move between Newcomb and Freret, but because the entire roadway is blocked by the fence, bicyclists must leave the street and use the side walk
in order to travel between the two streets.
G. The Suit
In 2007, suit was brought by two area residents and two neighborhood organizations (Maple Area Residents Inc., and Carrollton Riverbend Residents Association) challenging the
legality of the closure. On March 27, 2012, Judge Michael Bagneris held that the permit
was illegal and constituted an unconstitutional donation of public property to a private entity. The Fourth Circuit Court of Appeal affirmed. All appeals were exhausted on May 17, 2013 when the Louisiana Supreme Court
refused to hear the matter.
H. Newcomb files incomplete application to purchase
On July 15, 2013, approximately seven years after the fence was erected, NBA filed an application to purchase the street. However, that application was incomplete. One requirement of an application to purchase a public street is a current Traffic Impact Analysis (TIA), including a “description of existing traffic conditions and operations, which shall include current peak hour traffic volumes, current average daily traffic counts . . .”. Administrative Rules, Policies & Procedures, New Orleans Planning Commission, p 32 ff. NBA’s application attached the nine-year-old 2004 USI study, which did not include a TIA, noting that there was a “revision in progress.”
I. The Stay
After the Supreme Court refused to hear the matter and the lower courts' holding that the permit was illegal became definitive, the City admitted that it had a contractor prepared to remove the fence. However, rather than proceed to remove the illegal structure, the City asked the Court to stay implementation of the judgment, but took no steps to protect the public’s right to be compensated for the private use of public property by demanding that Newcomb post a bond for its continued use of the street. On October 18, 2013, Judge Bagneris issued a stay supposedly to allow NBA to pursue its application to purchase the street. Plaintiffs objected that it was inappropriate to stay the removal of an illegal and unconstitutional fence and to the failure of the court to order NBA to post a bond. Plaintiffs filed for supervisory writs with the Fourth Circuit. On December 30, 2013, the Fourth Circuit reversed the stay and ordered removal of the fence. At that time, NBA had still not completed its application.
J. The City fights to delay removal of the fence
Even after the stay was lifted and the Fourth Circuit ordered the fence removed, the City continued to support the continued closure and has demanded neither an agreement to pay rent nor a bond to be posted. On January 28, 2014, City Attorney Shronda Williams, in an attempt to re-litigate the stay that was reversed by the Fourth Circuit and to delay complance with the Fourth Circuit's order to remove the fence, sent a report prepared by City Traffic Engineer Allen Yrle, stating in her transmittal email that “there is a need to convert this street to a one-way street to address the safety concerns that have been identified.” However, Yrle’s report, does not, contrary to the City Attorney’s email, find any significant “safety concern” that would prevent the reopening of the street, nor does it state that there is a “need” to convert the street to a one-way or to keep it closed while the City considers whether to convert the street to a one-way. The report merely states that conversion to a one-way could reduce the “conflict” created when vehicles headed in opposite direction have to navigate around each other ("conflicts" that we successfully navigate every day), that hedges at 44 Newcomb Boulevard could be trimmed if they obscured the view of motorists, and that vehicles exiting a driveway at # 44 Newcomb – which driveway has been in place for at least forty years with no reported incidents – would have “limited exposure” to vehicles turning right onto Newcomb from Freret. None of these conditions were characterized by Traffic Engineer Yrle as a “safety concern,” which is the pejorative term used by the City Attorney in her attempt to spin the existence of normal traffic conditions into an excuse for the City’s intentional disobedience of the Fourth Circuit’s mandatory injunction.
K. Plaintiffs Ask District Court to Report Contempt to Fourth Circuit; NBA files missing Traffic Study
On February 21, 2014, Plaintiffs filed a motion asking the District Court to report to the Fourth Circuit that the City and NBA were in contempt of its December 30, 2013 order that all obstructions be removed. After it was threatened with contempt and over eight months after it filed its incomplete application, NBA finally filed the required traffic study on February 27, 2014. Though the District Court denied the motion asking it to report contempt to the Fourth Circuit, the Court invited Plaintiffs to file a motion for contempt with the District Court.
L. NBA's Application to Purchase Set for Hearing
On March 13, Plaintiffs were notified that NBA's Application for Purchase was to be set for hearing at the April 8, 2014 City Planning Commission Hearing, and that written comments were due by 5:00 PM on March 31, 2014.