The Department of Safety and Permits' interpretation of New Orleans zoning laws argues it's illegal for businesses like Central City BBQ to host outdoor entertainment

New interpretation prohibits New Orleans businesses from hosting outdoor entertainment

In June, exacerbated by complaints concerning the perceived encroachment of private businesses into residential areas, the New Orleans City Council directed the City Planning Commission to consider restrictions on outdoor dining and live entertainment. The recommended restrictions mainly concerned parts of Faubourg Marigny, Bywater and Tremé, but while the Department of Safety and Permits reviewed the city’s Comprehensive Zoning Ordinance (CZO), a much larger issue came to the attention of the City Council–it seems New Orleans businesses, in general, are prohibited from hosting outdoor live music and entertainment on a regular basis.

As reported by The Lens, this prohibitive interpretation of the CZO is based on a clause in article 20, section 3, which states, “Windows and doors shall be closed during live entertainment performances and compliance with the City of New Orleans Noise Ordinance is required.” In accordance with common architectural standards–that is, there are no partitions like windows or doors to close when outside–the Department of Safety and Permits has deemed outdoor live entertainment illegal.

Many are unhappy with the new interpretation, including Ethan Ellestad, the executive director of the Music and Culture Coalition of New Orleans, an advocacy group that focuses on the rights of the city’s musicians and artists. The group has called the interpretation “arbitrary and flawed.” 

Although there are a few caveats to the new interpretation–for example, businesses are allowed to host outdoor entertainment with access to a temporary special event permit (accessible eight times a year for three days), and existing businesses with outdoor entertainment are grandfathered in when granted non-conforming status–the Council’s original proposal has become largely superfluous. While exceptions to the interpretation are welcomed, Ellestad believes these exceptions are only meant to propagate the appearance of judicious and fair treatment towards these entertainment venues.

In reality, if a non-conforming use status business was to stop operating for a six-month span or move to another location, then that business loses its non-conforming use status–the privilege which allows businesses to operate in a manner contrary to the new interpretation, if it already did so before the new interpretation was enacted. “They’re saying, ‘Don’t worry, existing businesses will be fine,’” Ellestad said. “But if you look at the long term, outdoor live music won’t be fine because it will slowly go away.”

According to the Department of Safety and Permits Director, Zachary Smith, the new CZO interpretation only allows businesses in Vieux Carre districts to host live outdoor entertainment upon reception of a conditional use permit. Smith has said his office is bound to its interpretation by a section of the CZO which requires the department to choose the most restrictive interpretation when there is an apparent contradiction in the law. 

Among others, Ellestad has asked the department to issue a formal publication of the interpretation, whether that issuance be through a verbal or written document, but the department has yet to grant a formal interpretation. Once a formal interpretation is granted, residents have a 45-day-span to appeal the decision through the Board of Zoning Adjustments. “Part of the reason they haven’t emailed me back is because that starts the clock for the appeal process,” Ellestad said.

A text amendment to the CZO–proposed earlier this year by the zoning consultant for Central City BBQ (1200 Block of South Rampart St.), Nicole Webre–reached the city council with no recommendation from the City Planning Commission, because a consensus could not be reached about Webre’s request, which proposed a new permitting category for outdoor live entertainment for MU-2 districts. 

Similarly, a consensus could not be reached regarding Councilwoman Kristen Palmer’s proposal that defined indoor and outdoor live entertainment as separate. If outdoor live entertainment is legally separate from indoor entertainment, it follows that the regulations on the two types of entertainment will differ as well, and a clause concerning windows and doors would no longer apply. The council receives the report on August 22 with an allotment of 60 days to act. It’s probable the outdoor entertainment issue will be deferred to a later date.