THE BLOG
01/06/2014 12:20 pm ET Updated Mar 08, 2014

Demolition Without Due Process

In a state where eminent domain is considered close to un-American, that same state, Louisiana, is determined to demolish a unique New Orleans landmark even before the protesting private property owners have had their day in court.

Last week, contractors were poised to demolish the 1907 Dixie Brewery, one of the city's largest iconic landmarks, until the owners, Kendra and Joseph Bruno, obtained a temporary injunction until the case is heard in Civil District Court on Jan. 7th. The Brunos are challenging the taking of their property on constitutional grounds but if the building is gone before the case is decided, the result will be a mockery of the judicial system.

An elegant red brick structure with arched windows and a distinctive silver dome, Dixie Brewery is on Tulane Avenue adjacent to the 30-acre site of both the VA and LSU hospitals now under construction. The VA Hospital wants the brewery site for a research building, not as part of the hospital.

"We never believed they would take the brewery," says Kendra Bruno. "We were told not to worry and that under no circumstances would it be taken because they had all the land they need on the hospital site."

Kendra Bruno was born and raised in New Orleans and her Brooklyn-born husband came down to go to Tulane and stayed. "We're still in shock," she says.

The brewery site has the city's only deep-water well that taps into an aquifer more than 800 feet underground and is a valuable source for the brewing process. Dixie is the last privately owned regional brewery in the South. At one time, New Orleans had 13 local breweries, contributing in a big way to the local economy.

The well, in fact, is a "unique feature" which is obvious just on the fact that it is the only one in the city. But it is also a significant fact under the law which prohibits the taking of a property with a "unique feature."

Multiple issues and the transferring of properties between the city, state, LSU and the VA all combine to make this a complex case. However, the lawyers argue, the procedures followed and the reasons for them are in total contradiction of the law.

First, eminent domain proceedings can take years to settle before an expropriation of property is completed. But, the state has a quick-take authority that allows it to take a property immediately upon filing a lawsuit. The city does not have this authority, so the state expropriated the hospital site properties under the quick-take proceeding and turned the properties over to the city who, in turn, handed them over to either LSU or the VA. This, lawyers for the Brunos argue, was the first illegal step. In 2004, the Louisiana Attorney General had issued an opinion stating that it is illegal for the state to use the quick-take process on behalf of the city because it would undermine the law that prohibits the city from doing it for itself.

Second, the state can only take property for a legitimate government need, like a highway or airport. A hospital is neither.

Third, in 1976, the state legislature passed a law prohibiting the taking of property for economic development purposes. Economic development has been the city's primary argument for building the hospital complex.

Additional procedures and agreements, lawyers contend, make the entire process illegal. Some of the procedures, in addition they argue, are questionable, such as the allegedly illegal extension of a city moratorium on building permits for the Mid-City neighborhood property owners. The extension of the moratorium guaranteed further deterioration of flooded properties and a diminished value of the property for which the city would have to pay compensation.

None of these issues have been recognized as valid so far in civil district court. But, lawyers note, if they don't get the injunction against demolition in civil district court, they will appeal it to a state court. How this would play out if the building is already demolished is anybody's guess.

In addition, the VA had committed not to demolish the designated landmark, noting that if the landmark could not be adapted to suit their needs, they would take an alternative site. But demolish is what the VA is trying to do, while leaving the façade and iconic tower in place. In the field of historic preservation, that is called a 'facadectemy,' just demolition with a friendly face.

The Brunos have owned the Dixie Brewery since 1985. The state offered them a munificent $52,285 for the property, less than the $150,000 maximum that Road Home offered property owners for a ruined house. The wind and water of Hurricane Katrina caused considerable damage to the building, all covered by insurance, but vandalism and looting and delay caused further damage, causing a temporary cessation of the operation. Since then, Dixie has been brewed temporarily in Wisconsin.

The Dixie Brewery is the focus of one of the last battles over demotion of a working-class neighborhood with 618 residents and assorted small businesses to make way for the mega-scale replacement of both Charity and the Veterans Administration hospitals.

All the opponents objected to erasing a neighborhood to replace two hospitals that studies showed could be brought up to new state of the art facilities without causing the expensive and avoidable process of taking private property and spending excessive funds. Under threat of eminent domain, most property owners settled with the state, rather than have their asset tied up in court for years. Those settlements allowed homeowners to find another place to live, even if not as nice as what they were losing.

Sandra Stokes, who led the fight to save and upgrade Charity Hospital, asks "Why can't they put the research facility into old Charity? The mayor is looking for uses of that building and this would be perfect."

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