'Air-rights' fees could span city - not just historic neighborhoods

Homeowners lash out at 'air rights' laws

NEW ORLEANS, LA (WVUE) - The city's policy on so-called "air-rights" has boggled the minds of many in the French Quarter, but the issue stretches beyond the historic neighborhood, and actually affects every homeowner within city limits.

According to the city, it's legally obligated to receive fair market value for the use of public property, and it argues that includes air-space above city sidewalks.

The city said any balcony, gallery, awning, eave, step, or stoop that extends out onto or over public property is considered an encroachment, and property owners must pay a fee for the use of the space.

The city said the issue stems from the Louisiana Constitution, which prevents municipalities from loaning, pledging or donating public property.

In Bayou St. John, some homeowners just can't believe the city is going that far.

"The thing is, this is the city property and this is their line," homeowner Sherry Campo said as she pointed out a step that was partially on a city sidewalk. "This would be the property owner's line. So they're saying because this one step is on the city property, which has been here for maybe, I would say at least 50 years or more, now they're gonna try to tell you, you have to pay a fee for that little piece of air space? I don't think so. Absolutely, that's the most ridiculous thing I've heard."

Sarah Stogner, a homeowner in Bayou St. John and an attorney who deals with zoning issues, thinks the city is overreaching when it comes to air rights.

"In the case where you've got a building, this one probably, that's been here for over 100 years. It's always been this way, and there isn't the right of the city to come in and say - one, you can't change it, it's a historical building. You're not allowed to change it without permission, they're not going to let you change the look of the façade - and two, not only can you not change it, but we're gonna make you pay us to have the right to this, which you may not necessarily want," Stogner said.

Stogner doesn't think the city is legally obligated to collect money, especially on long-time existing overhangs, balconies or stoops, but she doesn't think anything will change until the issue goes before a judge.

"If it was challenged in court, it probably would not hold up. I admire the administration for trying to be creative in our budget crisis, but I don't think our law supports this current interpretation that they're espousing right now," Stogner said.

Stogner points out that Louisiana Civil Code article 459 addresses a similar issue and states: "A building that merely encroaches on a public way without preventing its use, and which cannot be removed without causing substantial damage to its owner, shall be permitted to remain. If it is demolished from any cause, the owner shall be bound to restore to the public the part of the way upon which the building stood."

The city said it will only charge air-use fees if a homeowner is seeking a city service, like a building permit or inspection.

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