By guest author: Brett Perry (my husband)
Let me begin by saying, that I am all for a reasonable and sensible development of the pre-stressed concrete site, so long as the development adheres to federal, State and local laws/regulations. However, the previously submitted plan for the proposed Port Marigny development met none of these criteria. Here we are, another year later, with the proposed development for Port Marigny in the news again. This time, rumors are circulating about the City agreeing to a settlement in the on-going lawsuit. What a travesty this would be but hopefully, this is merely a rumor. As I see it, the 5′ contour discrepancy with the Proposed PM plan, alone, completely invalidates the lawsuit by demonstrating that the City Council rejected the proposal in accordance with the City’s land use regulation (CLURO) and their decision clearly was NOT arbitrary and capricious. Please review the following facts closely:
Section 8.5 of the CLURO, concerning Traditional Neighborhood Development (TND), was written specifically with the former Pre-stressed site as the model. The connection between the CLURO Section 8.5 and the pre-stressed concrete site (Port Marigny) was consistently reinforced by the City Planner, the applicant and the P&Z Commission throughout the proceedings. The history of Section 8.5 of the CLURO is as follows:
City of Mandeville Comprehensive Plan, adopted January 23, 2007. The Comprehensive Plan is essentially the master plan for Mandeville and Goal 12 of the plan was written to specifically address the pre-stressed concrete site as follows: Pre-stressed Concrete Area; Goal 12: “To facilitate the development of a vibrant, walkable, mixed use, waterfront development that provides strong fiscal benefits for the city.”
Ordinance 09-14, June 25, 2009 was passed in 2009 to amend (update) Mandeville’s CLURO based on the 2007 Comprehensive plan update and it serves to define the type of development described in Goal 12 of the comprehensive plan as a Traditional Neighborhood Development. Specifically, Ordinance 09-14 states: “Whereas, Policy 12.8 of the Comprehensive Plan calls for the City to encourage Traditional Neighborhood Development on the Pre-stressed Concrete Site.”
Ordinance 09-14, Annex A: “Section 1: Traditional Neighborhood Development” completes the link between the goal 12 written for the pre-stressed site and Section 8.5 of the CLURO, it states: “The text in Section 8.5 et seq. to establish standards for the creation of a Traditional Neighborhood Development (TND) through the City’s existing planned development review process.”
Now, what does section 8.5 of the CLURO say about developing TND’s (aka, the pre-stressed concrete site, aka Port Marigny)? Continue on:
City of Mandeville Comprehensive Land Use Regulations Ordinance (CLURO)
Section 8.5.2. Traditional Neighborhood Development Design Standards
8.5.2.1. Required Elements
While design flexibility is encouraged within a TND, the following design elements are mandatory:
Land Use Diversity.The development mix required in this section is based on developable acreage of the site, which excludes land that is below the five (5) ft. contour, wetlands and floodways. The development shall include a mix of residential and non-residential uses,……
Note it states “…the following design elements are MANDATORY” and under the number 1 design element it states: “The development mix required in this section is based on developable acreage of the site, which excludes land that is below the five (5) ft. contour…”.
The CLURO defines Development on page 21 as follows:
59. Development. Any man-made change to improved or unimproved land including but not limited to the use of land or buildings, modification or construction of buildings or other structures or the mining, dredging, filling, grading, paving, excavation of or performance of drilling operations on the land.
Note it prohibits “…..construction of buildings or other structures or the mining, dredging, filling, grading….”
Now finally, connect the dots: Comprehensive Plan (Pre-stressed Concrete Area) = Traditional Neighborhood Development (TND) = Section 8.5′ of the CLURO = no construction or fill below 5′ contour. There is no provision for a waiver or variance and clearly, the restriction can NOT be circumvented by filling or grading the land.
The diagrams in this post, prepared by Dr. David Depew, illustrate the areas within the pre-stressed concrete site that fall below 5’ elevation (areas encircled by the green lines), with side by side comparison to the proposed Port Marigny development. As one can see, a large portion of Parcel A and large tracts of the eastern side (right side of the development) are below 5’ elevation and therefore CAN NOT be included in the proposed development.
What a FABULOUS recap!! It actually focuses on FACTS (gasp, what a concept)! The city adopted the CLURO and must live by its own rules (another gasp-what-a-concept).
Thanks for taking the time to write such a succinct “spot on” recap.
Keep it up to ‘gitter dun’ ….
Charles Goodwin
Great article. Brief, to the point and, how refreshing, the actual FACTS!
Ditto Debbie’s comments….especially FACTS! CONGRATULATIONS BRETT on your 1st article.
Any thoughts on the Champagne email claiming that the the low spots on the site were simply depressions left by the removal of concrete footings at the former Prestressed Concrete site and were not a case of filling in a natural flood plain to create new land?
Is the contour issue a red herring?
If you look at the contour map you will see natural drainage patterns towards the man made canals; this is predominantly where you find the low areas and the large area they wanted to fill to create the “pentagon” has nothing to do with the removal of concrete piles. These are all naturally occurring low spots. if you look at maps that proceed using the area for causeway construction, you will see the area was largely a marsh/swamp. Claiming the low spots were created by concrete pile removal is the red herring. Regardless, the CLURO does not distinguish between man-made and naturally occurring low (<5') land; it simply says that land below 5' will not be considered in the development plan
The terrain that would have existed if there never was concrete plant should be considered. The CLURO needs to be interpreted rationally not opportunistically by BOTH sides. If we dig up a stump – we are not then committed to keeping a hole there for ever more.
ALSO – It says the density determination is made on land excluding “land that is below the five (5) ft. contour, wetlands AND floodways.” This could be interpreted to mean the land in question MUST be 1) five foot contour 2) wetlands and 3) a floodways to cause the exclusion. All three criterion must be met. Random depressions below five foot mark can be addressed otherwise.