The New Orleans City Planning Commission on Tuesday unanimously recommended that the City Council approve a zoning change that would allow for a renovation of one floor of the New Orleans jail in order to accommodate people incarcerated in the jail who have acute and subacute mental illness. The proposal is a potential alternative to building a new, 89-bed facility, known as Phase III, which the city has been ordered to complete by a federal judge over objections from Mayor LaToya Cantrell’s administration.

The city argues that the $51 million building is unnecessary and a waste of taxpayer money.

But whether or not the action by the commission will make any difference in what ultimately gets built or renovated is unclear.  The federal judge overseeing the jail’s eight-year-old federal consent decree has ordered the city to move forward with the construction of the Phase III facility, and deemed the retrofit option unfeasible. The city has appealed the order. 

The City Council now will have the opportunity to consider both proposals — Phase III and the retrofit option — since the Planning Commission passed along a proposed Phase III zoning change in October without a recommendation on approval. That proposal first appeared on the agenda earlier this month.

But council members have previously signaled that they do not support Phase III, and suggested that they will defer a vote on the zoning ordinance until the deadline for action has passed. At that point, it will be treated as a denial.

The hope is that the lack of action from the council — as opposed to an active vote to deny — will lower the risk of council members being held in contempt of court. 

“This council will not vote to approve Phase III, nor will we take a vote that might be interpreted as contempt,” Councilman Jay Banks said in a press release earlier this month. “While I will not vote my machine against Phase III, rest assured that my silence is a vote against Phase III. I will not be enlisted to rubber-stamp something that I fundamentally do not support.” 

Prior to the vote, the City Planning Commission staff recommended that commissioners vote to approve the retrofit, as staffers had with the Phase III facility last month, noting that their consideration of proposals is limited, and that they generally don’t consider broader policy implications of their recommendations. 

“The City Planning Commission’s role is narrowly focused on assessing a proposed renovation’s impact in terms of the type of activity they generate; when, where, and how this activity occurs; vehicular traffic and parking impacts; noise impacts; environmental impacts; and aesthetic impacts,” the retrofit staff report reads. “From a land use perspective, the renovation of the Phase II [existing jail] building for inmates with acute and sub-acute mental health conditions would not result in new impacts or an intensification of the current use.”

But unlike the Phase III application, which was passed along without recommendation after disagreements among commissioners over the scope of their role, the retrofit plan was approved with relatively little discussion.

There were dozens of public comments, however, primarily in favor of the retrofit option and in opposition to the Phase III facility. Many suggested that building a new facility would further criminalize mental illness, and that money saved from avoiding the construction of Phase III could be used to provide mental health services outside of the jail

The city has estimated that the construction of Phase III would cost $51 million, with FEMA covering around $37 million. The retrofit proposal, however, would only cost $9 million. The city has argued that it could be covered by FEMA funding as well. (In either case, as it currently stands, the construction would need to be completed by August 2023, or the city will lose out on any of the funding. The timeline the city is currently proposing for Phase III already surpasses that deadline.)

Will Snowden, director of the Vera Institute of Justice’s New Orleans office, presented on behalf of the retrofit proposal. He said that it was his understanding that if the city only used $9 million to do the retrofit, it could use the leftover FEMA funds for other public safety needs.  

“My understanding is that those FEMA dollars are specifically allocated to creating a facility that promotes public safety,” he said. “And I think that is open to interpretation. Although that might mean a jail, it also might mean a fire station, it might mean a police station, it might mean a community health center.”

Orleans Parish Sheriff Marlin Gusman supports the new building. And on Tuesday, Phil Stelly, a spokesperson for the Orleans Parish Sheriff’s Office, submitted a public comment, arguing that the infirmary that would be a part of Phase III — but not the retrofit — was necessary for coming into compliance with the consent agreement.

The monitors overseeing the jail’s consent decree have said that Phase III is one of the last remaining hurdles to providing constitutional mental health care for the incarcerated population in the jail. But advocates say that other issues — for instance, understaffing — are greater impediments to care than the buildings themselves.