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Homes in the Pontchartrain Parkneighborhood were flooded to theireaves following Katrina when thelevies of bordering canals werebreached. Now about two-thirds ofthe homes are unoccupied.was Amendment 5. It provided that an acceptable“public purpose” for expropriationis the “removal of a threat to public health orsafety caused by the existing use or disuse ofthe property.” However, the amendment alsostates “property shall not be taken or damagedby the state or its political subdivisionsfor the predominate use by any private personor entity or for the transfer of ownershipto any private person or entity.”This provision seemed to challengeNORA’s strategy of taking blighted privateproperty and transferring it to another privateentity, such as Habitat for Humanity, andwas in stark contrast to the verdict handeddown in Kelo v. City of New London. In theKelo decision, Associate Justice John PaulStevens, writing for the majority, said NewLondon could pursue private developmentunder the Fifth Amendment, which allowsgovernments to take private property if theland is for public use.“Promoting economic development is atraditional and long accepted governmentalfunction, and there is no principled way ofdistinguishing it from the other public purposesthe Court has recognized,” Stevenswrote, adding that local officials are better positionedthan federal judges to decide what’sbest for the community. Moreover, both themajority opinion and the dissent in Kelo fullyembraced the use of eminent domain — andthe transfer of expropriated property to thirdparties — when the taking eliminates some“harmful property use.”Amendment 6 arguably undermines theability of governments to transfer expropriatedproperty to a third party. The combinedforce of the two amendments seems to be amandate that seized property must be heldfor 30 years by the seizing authority beforeit can be transferred to a third party, and thatseized property must be first offered for saleat fair market value to the owner, or the owner’sheirs, from which it was seized. Thesecould negate the city’s incentive to expropriateblighted properties and seem to gut itsstrategy of using expropriation to eliminatethreats to public health and safety.However, Marshall said NORA doesn’tbelieve the 2006 constitutional amendmentsprevent it from using its statutory power toexpropriate properties as a means to eliminatethreats to “public health and safety.”“The primary purpose of NORA’s expropriationof blighted property is not to transferthe property to a third-party,” said Marshal.“It is to accomplish removal of a proventhreat to public health or safety.”To force examination of the constitutionalityof the amendments, NORA quietlysought an appropriate suit to make its case.The suit found the agency first.KATHY ANDERSON/THE TIMES-PICAYUNEBURGESS V. NORAIn 1997, the City of New Orleans demolishedan abandoned building on two lots owned byJoseph Burgess. At the time of demolition,Burgess owed years of back taxes and finesfor health and code violations. Burgess —believed to be deceased — is survived byheirs who could inherit any profits from thesale of the lots.In 2007, Burgess, represented by a courtappointedcurator, sued NORA on the groundsthat Amendment 6 prevents the agency fromtransferring the property to Habitat for Humanityand makes it mandatory for NORA tooffer to sell the property back to Burgess.“Since 1994, NORA has expropriatedthousands of blighted properties and hasnever been accused of abusing its statutoryexpropriation authority,” Marshall said.“This lawsuit represented a direct challengeto NORA’s critical power to return thousandsof dilapidated and blighted properties tocommerce by taking property and conveyingthe land to private persons and entities whoagree to remediate the properties’ blightedconditions.”In May 2008, the case went before JudgeMadeline Landrieu in civil district court. Inher decision she wrote it would be “nonsensical”to offer expropriated property back tothe person responsible for the blight.“The court finds that the amendmentspassed in 2006 do not preclude the city fromexpropriating properties that are blighted inthe context in which the city has historicallyacted, so the exception to the constitutionalityis overruled,” concluded Judge Landrieu.Marshall joined a team of legal experts representingNORA in this landmark case thatincluded Chris Gobert, one of Louisiana’stop expropriation attorneys, Frank Alexander,former dean and professor at EmoryUniversity School of Law and John Costonis,professor and former chancellor of LouisianaState University. The Burgess case isnow on appeal to Louisiana’s intermediateappellate court. A brief on behalf of Burgesswas filed in October, and NORA filed a responsesoon after.ROUGH WATERS AHEAD?Today, NORA’s quest to turn the tide onurban decay continues despite voter rejectionof an amendment on the Nov. 4 ballotthat would have clarified the meaning of thetroublesome Amendment 6. The law remainsthat expropriated properties must be held for30 years before being sold to a third party.Now, all eyes are fixed on the appellatecourt. If the Burgess family prevails in theappellate and Louisiana Supreme courts,the result will be a significant setback forNew Orleans’ efforts to use eminent domainto resuscitate dozens of neighborhoodscrippled by neglected and abandoned properties.But, the determination of the peopleof New Orleans to rebuild despite these politicalwoes is a testament to their resolve.“Spending evenings and weekend days withthe residents in their homes, church halls,schools and community centers has beentransformative for me,” Marshall said. “Thepeople who have returned to New Orleansfollowing the storm are the most informedand resilient citizens I’ve ever encountered.”Marshall is certain they will find a wayto weather the storm. ■FALL 2008 33