Judge refuses to toss hospital land suit

A district court judge Friday declined the city of New Orleans' request to toss out a lawsuit alleging that Mayor Ray Nagin exceeded his authority when he signed a deal to provide land for a planned federal hospital in lower Mid-City.

The decision from Judge Ethel Julien does nothing for now to stop the state facilities office, which is working on the city's behalf, to continue land acquisition for a 200-bed U.S. Department of Veterans Affairs hospital. But Julien's conclusion, which came after an hour-plus hearing on the city's effort to quash the matter, still amounts to an initial victory for the four plaintiffs, Wallace Thurman, Sheila Joseph, Veda Manual and Brad Ott.

The plaintiffs say they are not opposed to a new Veterans Affairs hospital to replace the downtown facility that was damaged by Hurricane Katrina. But they cast the planning process as a fait accompli that has bypassed necessary input from taxpayers, particularly the residents in the proposed footprint bound by Tulane Avenue, South Rocheblave Street, Canal Street and South Galvez.

Lawyers for the suing group now have the option of asking Julien to rule on their request to void Nagin's November 2007 memorandum of understanding with the federal agency or they could proceed with discovery. That process could yield new information about dealings and conversations among local, state and federal officials throughout the planning for both the VA facility and the proposed adjacent state medical complex to replace Charity Hospital.

The linchpin of the lawsuit is the assertion that Nagin exceeded his authority in the agreement by obligating the city to secure land, close streets and issue permits for the project -- decisions that, under the City Charter, require involvement from the City Council and City Planning Commission, with public hearings held before binding votes. The charter also requires council approval for any cooperative endeavor agreement that obligates the city for more than a year.

Representing the city, attorney William Aaron delivered to Julien a three-legged argument: that the plaintiffs, including two who live in the hospital footprint, have no legal right to sue; that they have no cause of action; and, the other two issues aside, that the lawsuit is premature because actions like street closings and zoning changes have not taken place.

In making the third, and perhaps most complicated portion of his presentation, Aaron told Julien that Nagin did not usurp any other entity's authority because he never intended for the necessary future decisions on streets, zoning and permits to occur without the public hearings required under the charter.

Thomas Milliner, the plaintiffs attorney, focused during and after the hearing on the fact that the agreement states the city "shall" turn over a construction-ready 34-acre lot to the VA. He said that still practically means the City Council and Planning Commission could not stand in the way of the deal without violating the document.

But any legal nuances aside, the plaintiffs and their supporters said Aaron's comments constituted a big-picture victory because it effectively sets up a promise for public hearings that critics of the plans have clamored for. The group also keyed on Julien's comments that Nagin did not substitute his executive authority for the legislative branch's role.

On the one hand, that could suggest Julien is not inclined to vacate the agreement. But it also suggests that she could be primed to grant injunctions should the city at any point not follow the required planning steps that Aaron said Nagin has always intended to take.

As for standing, Julien laughed at one point in the hearing and said Aaron effectively argued "that no one would have standing" to sue the government for anything. She said owning property, paying taxes and using the affected streets is standing enough.

. . . . . . .

Bill Barrow can be reached at bbarrow@timespicayune.com or 504.826.3452.