Council members Kristin Palmer and Jay Banks in City Council chamber (Michael Isaac Stein/The Lens)

The New Orleans City Council instructed the City Planning Commission on Thursday to study the city’s current laws and “existing ambiguities” on outdoor live music and entertainment, and to suggest necessary amendments to local law. 

The motion, passed unanimously, comes months after city officials announced that live outdoor entertainment was no longer allowed at any business in the city without a special permit. The change came although no new laws or regulations were passed.

The confusion began last year, when the Department of Safety and Permits quietly changed its interpretation of a provision in the Comprehensive Zoning Ordinance that requires businesses to close their doors and windows during live performances. Before, the rule only applied to indoor performances, but under the new interpretation, it applies to outdoor ones too. 

“There are no doors and windows to close outdoors,” the Music and Culture Coalition of New Orleans noted in a Facebook post last year. 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.”

“[There are] questions and gaps we now know are in the code,” Councilwoman Kristin Palmer said at Thursday’s council meeting. “That includes protections for outdoor music we thought were in place but are actually not.”

The City Planning Commission staff is now required to hold a public hearing on the question within the next 60 days and has nine months to complete the study. The motion specifically instructs the staff to study how similar issues have been handled in San Francisco, Nashville, Seattle and Austin. 

Palmer stressed that the council was only asking for a study with recommendations, and that any changes to the Comprehensive Zoning Ordinance would have to come back to the City Council first.

“This is a land use study regarding outdoor live entertainment only, at established businesses such as bars, restaurants and live entertainment venues,” she said. “This is not meant to address second line parades or home crawfish boils.”

Palmer said that the study was vital considering rapid changes happening in New Orleans.

“I believe we are at an inflection point in this city,” she said. “We have seen an increased influx of different development pressures, population shifts, some by choice and others not.”

Councilman Jay Banks held a similar sentiment.

“The magic of New Orleans is its culture,” he said. “This study will give us the information necessary to balance the needs of the new developments and new residents and all of the other stuff that’s happening, but not losing sight of what makes New Orleans New Orleans.”

‘Effectively prohibiting outdoor live entertainment’

The Department of Safety of Permits didn’t make an announcement when it changed its interpretation of the closed windows and doors requirement. And it’s not even clear when exactly the change was made.

At an August meeting, City Planner Stephen Kroll said that the new interpretation was made in the “last two months or so,” and added that prior to the change, “the regulations were being applied as if [outdoor entertainment] was allowed.”

The interpretation does not appear on a list of Safety and Permits interpretations listed on the city’s website. The department’s director, Zachary Smith, told The Lens last year 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 in August.

The interpretations were revealed in City Planning Commission staff reports on two other zoning issues. One of those was a controversial motion from the City Council directing the City Planning Commission to consider new restrictions on outdoor dining and live entertainment in various parts of Faubourg Marigny, Bywater and Tremé.

In its report, the commission staff found that new restrictions on outdoor entertainment in those neighborhoods wasn’t necessary since the Department and Safety and Permits interpretation essentially created those restrictions city-wide. It also cast some doubt on the interpretation, saying that the doors and windows requirement “was intended to apply only to interior performances” but did not specify that in writing. 

“The Safety & Permits Department has interpreted the closed windows and doors standard as effectively prohibiting outdoor live entertainment,” the report says. 

Under the interpretation, a business would need to get a temporary special event permit, which are only available eight times a year for a duration of three days each. Existing businesses with outdoor entertainment would be able to apply for non-conforming status, which allows businesses to continue to use their properties in restricted ways if they were doing so before the restrictions were put in place.

But a non-conforming status can evaporate if a business ceases operations for six months or has to move. Ellestad told The Lens last year that he believes over time there will be an overall reduction in outdoor shows as existing businesses move, close, or shut down temporarily.

“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.”

Council delays vote on contract with Family Center of Hope

Also at Thursday’s meeting, the council was expected to vote on a contract between the city and the nonprofit Family Center of Hope to operate an “evening reporting center” that would offer an alternative to detention for minors awaiting trial in Juvenile Court. As The Lens previously reported, Family Center of Hope received nearly $2.7 million in public funds between 2002 to 2010 to build a community center that was never actually opened.

At a council meeting in December, council members raised questions and concerns about how the program would operate, ultimately deciding to defer voting on the $900,000 per year contract. On Monday, the council again chose to punt on the issue. Claire Byun, a spokesperson for Councilman Joe Giarrusso, said that many of the questions brought up in the December meeting still remained unanswered. 

Michael Isaac Stein

Michael Isaac Stein covers New Orleans' cultural economy and local government for The Lens. Before joining the staff, he freelanced for The Lens as well as The Intercept, CityLab, The New Republic, and...