As a hallmark of the New Orleans landscape, the Mississippi River and land along its banks have increasingly come under the focus of developers interested in building mixed-use spaces that will bolster the river’s connection to the city’s residents and drive economic growth. Such projects, for example, include the redevelopment of the World Trade Center at the foot of Canal Street and the adjacent Riverwalk Shopping Center.
Another project recently covered in the news is a proposal to construct a large mixed-use development on the tract of land lying between the Convention Center and the former energy plant at Market Street. Named the Trade District by the group of developers, plans for the area include a hotel, condominiums, townhouses, retail outlets, restaurants and even art installations, with the potential incorporation of adjacent riverfront properties.
The jurisdiction of the Port of New Orleans has an effect on these types of riverfront real estate development projects. Issues related to public and private development of the riparian land, or the land along the river’s banks, are guided by Louisiana Civil Code Article 456. This article provides that while a river bank or levee can be subject to private ownership, the public needs to be able to access the river for a navigable right of way and other traditional shoreline activities such as fishing or loading and unloading marine vessels. Thus, the law imposes a servitude of use in favor of the public over privately held riparian property.
This subject was the topic of a recent presentation given by Lugenbuhl attorney and shareholder Rose McCabe LeBreton during the American Association of Port Authorities’ 2015 Port Administration and Legal Issues Seminar in New Orleans.
While there are a number of issues that can affect riverfront real estate development projects in New Orleans, Ms. LeBreton’s talk focused on a few specific issues that highlight limitations of riparian landowners’ ability to exercise their rights.
1. The Maritime Servitude
This term refers to public rights over private riverfront property. The Civil Code stipulates that public use is limited to “purposes that are ‘incidental’ to the navigable character of the stream and its enjoyment as an avenue of commerce.” While narrow, the real impact of Maritime Servitude is evidenced in the powers granted by the State of Louisiana in its Constitution and statutory scheme to certain political subdivisions acting on the public’s behalf.
The Port of New Orleans is the key political subdivision with jurisdiction over the riverbanks in Orleans and Jefferson Parishes. Governed by a Board of Commissioners, the Port has the authority to regulate maritime commerce and approve any use of riverbank areas within its jurisdiction. While much of the riverfront land in New Orleans is privately owned, most of it is improved with wharves that fall under the Port’s jurisdiction. In those instances, the rights of the riparian owner are subordinate to the rights of the public, and not an issue for maritime development by the Port.
The rights of the riparian owner become important only when the Port has determined that the land is not currently needed for maritime commerce, navigation or another maritime purpose benefiting the public. If the Port agrees to develop or lease portions of a riparian owner’s land for a non-maritime purpose, the consent of the riparian owner to the development in lieu of a maritime use must be obtained.
2. The Riparian Owner’s Rights
To develop a site for non-maritime use, the Port must determine that the site is not currently needed for maritime purposes by the public, and the riparian owner must provide its consent to the change in the use (L.S.A. R.S 9:1102.2). Once the determination is made, a riparian owner has the right to build structures on its land for private use and/or has control over what is constructed on the land through its consent. Since consent of the riparian owner is required for non-maritime development of riverfront land, identifying the riparian owner is a key part of the process and an aspect that can be problematic considering research may need to trace transactions more than a century old. Ultimately, the restrictive nature of the Maritime Servitude can greatly encumber a riparian landowner from exercising its rights.
A bright spot is that the landowner may control the air rights for development. According to Article 490 of the Civil Code, ownership of a tract of land carries with it ownership of everything above and below it unless the owner is restricted by law or the rights of others. This concept, known as the right of accession, affords vertical ownership of a piece of land including what is above and below the perimeter of the tract. The Hilton Hotel and the Riverwalk are such examples, as they are built in the airspace above working wharves, with it having been determined that the airspace above the wharves is not needed for maritime commerce.
3. The Competing Claims of Governmental Authorities
Various local and federal governmental authorities have asserted competing claims to riverfront land under a number of statutes, regulations, and ordinances that ultimately encumber a riparian owner’s use of its land. These regulatory agencies or political subdivisions exercise specific and limited jurisdictions over Port property, which means any real estate development effort within the Port must accommodate the rules of those authorities as well. A few examples are the Orleans Levee Board, the U.S. Coast Guard, the Department of Homeland Security, and the New Orleans Public Belt Railroad.
At Lugenbuhl, Ms. LeBreton leads the firm’s real estate practice, which focuses on all aspects of real estate development. To learn more about real estate issues in port development, contact Ms. LeBreton at 504-568-1990. More information about her extensive commercial real estate experience and background is available on her profile page.
The content of this article is not intended to serve as an exhaustive review of the laws, statutes or issues related to engineering malpractice claims and is not intended to provide legal advice. The opinions expressed through this article may not reflect the opinions of the firm, individual attorneys or clients.