Community, Not Bureaucracy, Should Determine the Rules For Outdoor Live Entertainment in New Orleans

We’re in the last few weeks of Autumn here in New Orleans. After the unrelenting heat of the summer and an unexpected cold snap in early November, temperatures have stabilized somewhere around 70 degrees—the perfect weather to sit outside in a courtyard and catch, say, the Willie Green Project at Bacchanal or the Big 6 Brass Band at the Mother-in-Law Lounge. The allure of watching live music under the stars on a balmy Friday evening is hard to ignore. Over the last decade or so, businesses have caught on—the number of outdoor venues (or venues with outdoor spaces) has been slowly increasing. Or, rather, had been increasing.

In August, it was revealed that the Department of Safety and Permits made a determination that the city’s Zoning Ordinance forbid any business in New Orleans from having outdoor live entertainment without first obtaining a special event permit each time they wanted to host a show. Permits are both expensive and limited to eight per business/location per year. (House parties and outside music in public spaces, like busking and second lines, are governed by a different set of rules and not affected by this determination.) Existing businesses are able to continue hosting outdoor music, but from the point the determination was made, no new businesses in New Orleans have been legally allowed to have outdoor live music without shelling out a few hundred dollars for each special event permit—which only lasts for three days and requires approval from the same Department of Safety and Permits. Under the current rules, if a business was going to apply for the maximum allowable amount of special event permits annually, they would have to pay a total of $3,000 to $4,000 per year and be able to host just 24 days of outdoor music. While that may be a feasible business model for a large event space or reception hall, it is far too expensive and restrictive for a neighborhood space that might host a brass band after a second line or a traditional jazz trio in their courtyard. The small businesses that are most likely to be patronized by and hire local New Orleanians are the ones that will be hit the hardest.

How did this clandestine restriction on outdoor music happen? The answer can be found in the unfortunate combination of labyrinthine zoning and unchecked bureaucracy. When the Zoning Ordinance was updated in 2015, the rules for live entertainment were re-written and included language that “Windows and doors shall be closed during live entertainment performances” (a simple rewording of an already existing requirement). Outdoor entertainment was acknowledged too, with the restriction that “Outdoor live entertainment areas located within 30 feet of a residential district shall be a conditional use.” A reasonable interpretation of this language would lead one to believe that if you have live music indoors, you have to close your doors and windows during the performance; and if you want to have outdoor live music and are within 30 feet of a residential area, you need additional approval. Unfortunately, this is not the approach the Department of Safety and Permits—who make all determinations about the text of the zoning ordinance—chose to take. Legally obligated to use the “most restrictive” interpretation, they decided that, because there are no doors and windows outside to close, businesses are prohibited from having live entertainment outside at all. This is, of course, nonsensical—you can’t close something that doesn’t exist—and leads down the path to further absurdity. Why not just build a free standing window in the middle of a courtyard and close it before the start of every performance? Wouldn’t that fulfill the requirement? Arbitrary, ill-conceived restrictions like these make it look like someone was searching for a loophole to shut down outdoor live music in New Orleans, undermining faith in the public process.

To further muddy the waters, it remains unclear who made this particular determination, or when. A public records request we filed shows that staff members of the City Planning Commission were, as of December 19, 2018, under the impression that the zoning ordinance allowed businesses to have outdoor live music under certain circumstances, as the document clearly intends. In an effort to follow proper procedure and double check, they emailed the Chief Zoning Administrator, who said she would “pass this around at our zoning meeting tomorrow and get back to you.” Later the next day she responded that “it has generally been [The Department of Safety and Permits] position that live entertainment is not permitted outside unless specifically allowed by a conditional use or through a special events permit” and that it might be a “good discussion point” for a future meeting. (Notably the Zoning Ordinance allows reception facilities to get a conditional use for outdoor live entertainment, but not bars, restaurants, or live performance venues—places where locals might want to go). It seems City Council members were also not aware of Safety and Permits’ position, as Councilwoman Palmer introduced her own proposed restrictions to outdoor live entertainment for certain neighborhoods—which were only discovered to be redundant after several months of public debate and consternation.  Because no one seems to know when this determination was made, it is also unclear how many businesses may have been affected. In January, our public records request shows at least one case where the Director of Safety and Permits tells a business owner “they cannot approve a [permit] that would expect music to be played outdoors.” By November of 2019, the City Planning Commission seems to have fully adopted the position of Safety and Permits as well, and is now telling prospective businesses “Outdoor live entertainment is not allowed. The plans submitted to the City Planning Commission shall not include outdoor live entertainment, stage, or other performance areas.” Not only are outdoor performances prohibited at new businesses, so too are outdoor stages and “performance areas.” That’s sending a pretty clear message.

While the concern over the future of outdoor music venues in New Orleans is legitimate (even businesses still allowed to host outdoor performances now face new challenges—they are unable to move locations, and if they close for more than six months they will lose the ability to have outdoor music entirely, and it remains unclear which businesses are currently considered to have the proper permits and approval), the biggest issue is about process. It is fundamentally unacceptable that the decision to prevent businesses from having outdoor live entertainment was made outside of the public eye, hasn’t been officially recorded, and is seemingly passed down by word of mouth from one staff member and department to another. This is a public policy that directly affects the viability of multiple small businesses and the cultural landscape of the city. Why is there no written record? By making this unilateral, unannounced, and publically unavailable policy decision, the Department of Safety and Permits has robbed the community of the ability to make the determination of the appropriateness of outdoor music for their own neighborhoods—for both proponents and opponents. There are legitimate pros and cons surrounding outdoor venues, but also lots of common ground to be found. Communities deserve the ability to figure it out themselves in a public process.

While it is possible to challenge the Department of Safety and Permits’ determination, the process is costly, time consuming, and could well end up in civil court—without a guarantee of success. That remains an option, but there is another way that could yield a better result.  At least one City Councilmember’s office has expressed interest in requesting a formal study to create recommended guidelines for outdoor live entertainment in New Orleans. While the process would take a minimum of several months, it would also offer a number of opportunities for public input, and ultimately create a regulatory system that would allow businesses to have outdoor music, but also create reasonable regulations that would give neighbors peace of mind, allow businesses to profit, and protect traditional cultural activities. We encourage the City Council and City Planning Commission to move forward with this study and we encourage all residents to participate and give feedback. New Orleans has a famously public and participatory culture; our cultural policies should be crafted in the same way.

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