My Response to the Times-Picayune's Editorial in Favor of Destroying Lower Mid-City

Here's my point-by-point response to the Times-Picayune editorial board's piece today praising a ruling in favor of building hospitals in Lower Mid-City:

Rebuilding of streets, police stations and other public spaces is finally in full gear almost five years after Hurricane Katrina and the levee breaches. But one of the most vital construction projects for the city's recovery has remained on hold.

That's odd.  If getting the VA and Charity hospitals back on line was a vital construction project, you think the people in charge, to start, would have rebuilt in the existing Charity Hospital building - something that was feasible structurally, would have cost less money than the Lower Mid-City option, and would have been completed more rapidly.

It's also interesting that the paper's desire for rebuilding and renewal didn't extend to those who live in or lived in Lower Mid-City.  A City Council moratorium barred residents and owners inside the footprint from even effecting simple repairs to their properties for months.

It may at last get back on track, though. A federal judge's ruling last week rejecting preservationists' arguments against two proposed hospitals in Mid-City is a significant victory for New Orleans and the rest of the metro area.

So, a significant victory includes destroyed a swath of homes built of first growth cypress with distinctive, endemic New Orleans architectural characteristics that are easily movable?  Victory is forcing people out of their homes after they returned following Katrina and restarted their lives?  Victory is further reducing the city's already shaky tax base?  Victory is employing state expropriation (eminent domain) against private property owners when alternative sites are available?  Victory is thrusting a peninsula of development appropriate to the CBD north of South Galvez Street into what is a National Register Historic District and what is clearly neighborhood?

The decision, by U.S. District Judge Eldon Fallon, removes an obstacle to construction of a new 200-bed Veterans Affairs hospital and a nearby 424-bed state teaching hospital near downtown New Orleans.

If LSU can even pay for its portion, as the folks at Save Charity Hospital have pointed out repeatedly.  And Judge Fallon forgot to mention just how much of the roughly 70 acres of land will be used for surface level parking lots wholly inappropriate to New Orleans.  Getting the hospitals back on line is an admirable and worthy goal.  But the good that will come from the endeavors is not the only factor worth weighing in the balance when arriving at a way forward.  Throughout the process, the absurdly inflexible insistence on the Lower Mid-City site has been baffling.

The long-planned hospitals are urgently needed to treat veterans, as well as the sick and the indigent, and to train new doctors and health care professionals. Just as important, the facilities are expected to anchor a biomedical district that could attract thousands of jobs and become a vital economic engine for our region.

The key word there is "could."  Destroying all of the projects in New Orleans and replacing them with lesser quality buildings could improve New Orleans.  Or, as we now see, they may never be replaced because times change and funding realities can worsen.  If you want to see the devastating effects of "could" in a situation similar to the one in Lower Mid-City, see how New London, Connecticut looks after it used eminent domain to eliminate homeowners like Susette Kelo for development by Pfizer...that never materialized.

Preservationist groups have said that instead of building a new teaching hospital, the state should rehabilitate the old Charity Hospital building. The ruling this week came on a lawsuit filed by one of those groups, the National Trust for Historic Preservation, which argued that the fast-tracked planning process for the new hospitals violated the National Environmental Protection Act. That law requires a complete vetting of construction projects financed with federal money but gives agencies some leeway on how they set up the planning process.

Building in Lower Mid-City also leaves the existing Charity and the VA campuses in the CBD vacant...even more vacancies in an already drafty downtown.

Judge Fallon concluded that months of planning meetings and the documents produced in that process satisfied the federal requirements. He noted that the government satisfied requirements to consider various sites early in the process and that it evaluated the project's environmental impact. Significantly, the judge noted that "had the agencies been required to wait for all relevant information, the (preliminary environmental assessment) would not have begun until recently, thus further delaying the return of medical services to the New Orleans area."

The federal requirements, the laws in place related to historic preservation-based objections to development, have no teeth.  They are blatantly, by design, toothless when it comes to stopping projects, especially those initiated by unelected federal agencies.  There is process, yes, but meaningless process.  Fallon's concern reveals the Catch-22 that often serves to defeat attempts at preservation: the judges note that construction couldn't get underway if all parties waited for the outcome of the full, unsegmented studies.  But then, once construction has progressed far enough, it would be inconvenient to stop the project.  Effectively, the judge chooses development, normatively, as his preferred outcome.

Considering that more than four years have passed since Katrina hit and the floodwalls failed, additional delays would have been a harsh blow to our region.

And again, if the delay in providing services was such a hassle...why didn't the powers that be go with the old Charity renovation option, as State Treasurer Kennedy suggested?

The necessity of these hospitals does not negate their disruptive impact on residents who live in the area where they will be built. That's especially painful for property owners who rebuilt after Katrina and are now having to relocate. But the broader public interest in developing a new medical district clearly justifies the construction of the hospitals. As they acquire property for the project, government officials need to make sure residents are treated fairly and are adequately compensated. In his ruling, Judge Fallon said the government made adequate plans to mitigate effects on residents, businesses and historic structures -- and that's important.

The broader public interest?  Public interest, perhaps.  But since expropriation (eminent domain) is in play, the U.S. Constitution is in play, specifically the 5th Amendment: "nor shall private property be taken for public use, without just compensation."  Public use got stretched to public purpose, and then the Kelo case weakened the protection even more, by essentially permitting a government entity to engage in a taking for the benefit of a private entity.

While the state and federal entities pushing the hospital plans appear to be public entities, the Constitutional provision on takings highlights just how fundamentally takings can harm individuals - it shows why expropriation should not be used if there are alternatives available (and if it's unclear that the fiscal picture will even permit the proposed project to be built).  Government shouldn't use a bunker buster bomb if negotiation will do the trick, so to speak - even if a few holdouts raise the price, let them.  Or build in a smaller footprint to begin with!  Build vertically instead of horizontally.

"These" hospitals?  No, just hospitals.  The proposed hospitals in these particular locations are not the crucial aspect, it's just hospitals of some sort - veterans and indigents would get care just as well if the hospitals were located elsewhere.

I also question whether the compensation to be provided to those whose property is seized (like the owners of the Pan-Am building that was already seized via expropriation even as price negotiations were underway) will even be just.

And finally, adequate plans to mitigate harsh effects on residents, businesses, and historic properties?  I'm sorry, that's rather ridiculous, especially when it comes to historic properties.  The mitigation measures that Fallon outlines are laughable: taking digital photos of the properties to be demolished and providing a pittance of cash to move homes (only eight homeowners even considered it due to the conditions and there was barely enough allotted to move 20 homes out of over 100 historic structures in the VA footprint alone).  Destroying over hundreds of properties eligible for listing on the National Register, many of them quintessentially New Orleanian is a travesty that the city will likely look back on with sorrow some day when it realizes the joint hospitals project was in part yet another pie in the sky panacea.  Lower Mid-City is a motley jumble of architectural styles and densities - the kind of thing residential developers try to recreate in new urbanism developments.  It exudes the one-of-a-kind feel that makes a person know he or she is in New Orleans, not somewhere else.

The Veterans Administration, which committed to building a new hospital in New Orleans shortly after the storm, welcomed the court's ruling. Many New Orleanians are thankful for the federal government's resolve in that project.

Yes, the VA.  What if the VA builds at its site...only to have LSU fail to procure sufficient funding for its site, which is closer to the CBD, the essential part of the plan that would make the VA hospital part of a peninsula of inappropriateness out into Mid-City instead of an island.  What if only an island comes of this?  It's great that the VA plans to continue to call New Orleans home.  But the lure of economic lucre - and jobs for private companies, a key reason that many government leaders support the plan (not really a public purpose for takings analysis, it seems) - should, again, not be the only consideration.  And there has been little consideration throughout this process for keeping a valuable, if intangible, part of New Orleans intact - a part of its imperfect, unique, indomitable soul.

The state also has been working toward the new teaching hospital, and that effort has overcome several obstacles recently. An impasse between Louisiana State University and Tulane University over governance of the new facility was resolved in August. In January, a federal arbitration panel awarded $474 million for storm-related damage to Charity Hospital. The money will go toward construction of the new hospital and will greatly reduce what Louisiana will need to borrow to complete the estimated $1.2 billion project.

One more time...if this whole push was truly about getting a hospital re-opened to get care to indigents and veterans, why not use the arbitration award the moment it came down to refurbish the existing Charity Hospital?  The Ahab-like obsession with staking out an incongruent white whale in Lower Mid-City smothered all other efforts at compromise.

Now Judge Fallon's ruling puts New Orleans "one step closer to re-establishing a system of first-class health care for all its citizens," as Mayor Ray Nagin said.

C. Ray Nagin, font of all wisdom.  Quoting him, a public official with "worse than Bush" poll numbers, apparently lends an extra note of credence and gravity to the op-ed.

That's a major -- and long-awaited -- development.

It is a long-awaited development.  One that could have come sooner had thoughtful minds prevailed.  One that can still happen without destroying Lower Mid-City and using the weight of government to force people from their homes.