In June, the New Orleans City Council passed a motion directing the City Planning Commission to consider new restrictions on outdoor dining and live entertainment in various parts of Faubourg Marigny, Bywater and Tremé. That prospect has been controversial itself, but the process has unearthed a citywide issue: Are New Orleans bars and restaurants allowed to host outdoor live entertainment on a regular basis?

According to a recent interpretation of the city’s zoning laws by the Department of Safety and Permits, the answer — for everywhere in the city but the French Quarter — is no. A provision in the Comprehensive Zoning Ordinance requires businesses to close their doors and windows during all live performances.

”Windows and doors shall be closed during live entertainment performances and compliance with the City of New Orleans Noise Ordinance is required.”—New Orleans Comprehensive Zoning Ordinance, Section 20.3.JJ.5

“There are no doors and windows to close outdoors,” the Music and Culture Coalition of New Orleans noted in a Facebook post earlier this month. So in most cases, that means no live entertainment, at least as far as the Department of Safety and Permits is concerned. The Music and Culture Coalition, which advocates for the city’s musicians and artists, called the department’s interpretation of the law “arbitrary and flawed.”

“I get the sense that no one knew this was the ruling,” Ethan Ellestad, the executive director of the Music and Culture Coalition of New Orleans, told The Lens. “It looks like City Council didn’t know about it, City Planning didn’t know about it. … I’ve never seen it discussed publicly. I was totally blown away when I heard about this. And I would suggest that there are few people that follow this stuff as much as I do.”

In effect, the department’s move makes the council proposal on restricting live music unnecessary, the City Planning Commission staff found in a staff report addressing the June motion.

The new interpretation was made within the “last two months or so,” said City Planner Stephen Kroll at a City Planning Commission meeting on Monday during which the report was discussed. He added that prior to the new interpretation, “the regulations were being applied as if [outdoor entertainment] was allowed.”

The interpretation means that in order to have outdoor live entertainment, a business would need to get a temporary special event permit, which you can only get eight times a year for a duration of three days each.

Existing businesses with outdoor entertainment would be able to continue with outdoor entertainment by applying for non-conforming status, which allows businesses to continue using their property in restricted ways if they were doing so before the restrictions were put in place.

Businesses, however, can lose their non-conforming use status if they stop operation for six months or if they lose their lease and have to move. Ellestad believes that over time — as existing businesses move, close, or shut down temporarily — there will be an overall reduction in outdoor shows.

“They’re saying, ‘Don’t worry, existing businesses will be fine,’ ” he said. “But if you look at the long term, outdoor live music won’t be fine because it will slowly go away.”

‘We don’t have a specific copy’

The Comprehensive Zoning Ordinance, adopted four years ago, appears to contemplate and authorize outdoor entertainment as a secondary business use, the City Planning Commission staff report said.

The doors and windows requirement “was intended to apply only to interior performances” but did not specify that in writing, the report said. “The Safety & Permits Department has interpreted the closed windows and doors standard as effectively prohibiting outdoor live entertainment.”

”Outdoor live entertainment areas located within thirty (30) feet of a residential district shall be a conditional use.”—New Orleans Comprehensive Zoning Ordinance, Section 20.3.JJ.2

The department’s interpretation renders pointless other language in the CZO that references outdoor entertainment. One section says businesses located within 30 feet of a residentially zoned district cannot host outdoor entertainment as a property right. Instead they have to apply for special permission through what’s called a conditional use permit. But if there’s a blanket ban, as Safety and Permits insists, such a permit would not be available to them.

A sentence directly following the language about closed doors and windows — which calls for businesses in Vieux Carre districts to apply for a conditional use permit in order to host outdoor shows — might appear, to many readers, intended to make it more difficult to hold outdoor shows in the French Quarter than in other parts of the city.

Department of Safety and Permits Director Zachary Smith told The Lens that it’s the other way around. According to his reading, that’s the only part of the city where businesses can host regular outdoor entertainment.

“I would argue that it’s the opposite,” he said. “Rather than reading it that it’s prohibited in the French Quarter and therefore permitted everywhere else, the way that the text reads it’s the opposite. That it’s prohibited everywhere except the French Quarter through a conditional use process.”

”In the Vieux Carré Districts, music of any kind is prohibited outside the building, unless authorized through the conditional use process.”—New Orleans Comprehensive Zoning Ordinance, Section 20.3.JJ.5

Smith added that his office is bound by a section of the CZO requiring that the director of the department choose the most restrictive option whenever there is “implied or apparent conflict” in the law.

“Whether we agree with it or do not agree with it, what is the purpose of having windows and doors that are closed if you can play live music outside?” he said. “To me it’s a very rational, realistic response.”

It’s not clear if the department’s recent determination is available in writing.

The interpretation does not appear on a list of Safety and Permits interpretations listed on the city’s website. Smith said that interpretations can be less formal, including emails and even verbal communications. When The Lens asked him to point to where and when this interpretation was introduced, he could not.

“We believe we’ve made a decision. Whether it’s verbal or in writing, it’s something we don’t have a specific copy of it,” he said.

City Planning Commission Director Robert Rivers did not respond to questions from The Lens, including how his staff was made aware of the new interpretation.

Smith said department staff members would search for it and send it to The Lens. It was not provided prior to the publication of this story. The department did not respond to follow up inquiries.

Ellestad also asked for the interpretation, but got no response, he said.

“Part of the reason they haven’t emailed me back is because that starts the clock for the appeal process,” Ellestad told The Lens.

Residents can appeal decisions by the Department of Safety and Permits with the Board of Zoning Adjustments, but it must be filed within 45 days of when the decision was rendered.

“My understanding is that there’s been a request for a formal interpretation that would then be subject to an appeal,” Rivers said at Monday’s meeting.

Central City BBQ

“I had first heard about this decision in a previous docket when I heard about Central City Barbeque,” Ellestad said.

Central City BBQ, in the 1200 block of South Rampart Street, often hosts live music in a large gravel courtyard it has in the back. According to the restaurant’s zoning consultant, Nicole Webre, the owners had been using special event permits and were seeking to get something more permanent.

“We’ve been going through this for over two years now,” she told The Lens.

She said that during former Mayor Mitch Landrieu’s tenure, the business was told to change their zoning to Mixed-Use 2, or MU-2, which is how much of the property surrounding the restaurant is zoned. Live entertainment, at least indoors, is allowed in MU-2 districts without a conditional use permit.

But with this new interpretation, live entertainment doesn’t mean outdoor entertainment. Webre came to the City Planning Commission earlier this year to request an amendment to the CZO that would create a new permitting category for outdoor live entertainment for the MU-2 district.

”We’ve been going through this for over two years now.”—Nicole Webre, zoning consultant for Central City BBQ

According to Webre, city officials from Safety and Permits had a hand in crafting the request.

“I did not come up with this language on my own,” she said. “They said, ‘will y’all be good team players and file a text amendment, and we’ll tell you exactly what needs to be stated to create a designation for outdoor live entertainment.”

“Our discussion was that a text amendment would put to rest any ambiguity in the CZO as to live outdoor entertainment since specific regulations are not provided in the code,” Webre wrote in a follow-up email.

On July 23, the City Planning Commission considered the staff report prepared for Webre’s request. It recommended denial for a few reasons, including that if passed it would only allow outdoor entertainment as a secondary use in MU-2 districts, leaving it prohibited in the rest of the city.

“In general, this text amendment report is insufficient to assess the full impacts of outdoor live entertainment,” the report said. “This is a much broader issue that should be evaluated at a city-wide level in terms of appropriateness and health and noise impacts.”

Ellestad agreed.

“I guess the upside is that it exposed this city-wide problem,” he said. “But now it needs to be a city-wide process. It can’t be about these three neighborhoods and these specific parcels because it no longer is.”

The City Planning Commission could not reach a consensus on Webre’s request, so the issue went back to the council with no recommendation.

Palmer’s motion

Outdoor shows were back on the City Planning Commission’s agenda last Monday. This time, it came up as the City Planning Commission was considering the motion from Councilwoman Kristen Palmer to create new restrictions on outdoor dining and live entertainment in HMC-1, HMC-2, and HM-MU districts.

All three are commercial or mixed-use districts in Faubourg Marigny, Tremè and Bywater neighborhoods. They include stretches of St. Claude Avenue, N. Claiborne Avenue, and Elysian Fields Avenue. They also include scattered locations within those neighborhoods.

“I’m filing this motion after ongoing discussions with the neighborhood groups in my district,” Palmer said at the June 6 City Council meeting, where the council voted to pass the proposal along to the City Planning Commission to produce a study and hold hearings. “Their residential quality is threatened when neighboring businesses set up outdoor restaurants and live entertainment mere feet from a family’s back or side yard.”

Palmer’s chief of staff, Andrew Sullivan, said she wasn’t aware of the new interpretation at the time.

“We haven’t been fully briefed on the interpretation by Safety and Permits yet, so we can’t yet offer an opinion on it,” he wrote in an email.

First, the motion aimed to restrict outdoor dining in any rear, side or front yard that abuts a residential district. This would apply to most buildings in these districts, since 801 of the 1,153 of the parcels in those districts — 69 percent — are adjacent to residentially zoned properties, according to the City Planning Commission staff.

The staff report said those measures would be more restrictive than the rest of the city and urged a less prohibitive policy. They recommended mandating a 15 foot buffer zone for backyards, a three foot buffer zone for side yards and no restrictions on front yards.

Second, the motion sought a ban on live outdoor entertainment as a secondary use. The City Planning Commission Staff suggested adding language to the CZO that would specifically ban outdoor entertainment in those three districts.

”Whatever we’re doing now is a mess. So we gotta do something”—Ethan Ellestad, Music and Culture Coalition of New Orleans

“That restriction already exists under the law the way that’s been interpreted,” Rivers said at Monday’s meeting. “What we are suggesting is that if that’s the way that’s going to be interpreted, then let’s clarify that.”

He mentioned that there was a request in the Central City BBQ docket to create new standards and regulations for outdoor live entertainment.

“We are supportive of that type of that type of consideration, not necessarily the specifics of that application, but supportive of the concept of having outdoor live entertainment defined a separate type of use and regulated accordingly,” Rivers said. “The benefit of that is that realistically, indoor entertainment and outdoor entertainment … the impacts of those two things are dramatically different.”

Sullivan said that Palmer is interested in that conversation too, but that a measure with a citywide impact would need input by all council members.

Like Webre’s proposal last month, The City Planning Commission couldn’t reach a consensus on Palmer’s measure, and sent the issue back to the City Council without a formal recommendation. The report will be sent to the council on August 22, after which the council has 60 days to act on it. Sullivan said that they might move on the new dining restrictions, while leaving the outdoor entertainment issue for a different day.

“Whatever we’re doing now is a mess,” Ellestad said. “So we gotta do something.”