In mid-July, the Zony Mash Beer Project — a brewery that started regularly hosting live music during the coronavirus pandemic — announced it was cancelling the remainder of its July music schedule, citing “ongoing issues with the City of New Orleans for our outdoor live music events.”
The day after the announcement, The Broadside — an outdoor event venue on North Broad Street established last fall next to The Broad Theater — received an email from the city’s Department of Safety and Permits saying that it was also running afoul of the permit that allowed it to host outdoor shows.
“The day after Zony got their letter from the city, the next day we got ours that basically said you’re out of compliance,” Broadside owner Brian Knighten told The Lens.
The Broadside voluntarily closed down less than a week later, Knighten said, so he could do some planned renovations before an anticipated reopening in September.
“I said, ‘Ok look, you don’t shut us down, we’ll voluntarily close because we had planned to anyway, and our plan is to open Sept. 2.’ We have gigs on Sept. 2 ready to go. We have almost a full calendar.”
But it isn’t entirely clear whether Knighten will have the permits necessary to reopen at that point, due to the uncertain future of temporary pandemic rules that have allowed outdoor music to thrive over the last year. Those rules allow businesses to apply for an unlimited number of special event permits for concerts, which are normally capped at a maximum 24 days per year.
The city couldn’t provide The Lens with a timeline for when the temporary rules will end. But emails from May obtained by The Lens indicate that city officials were considering letting the rules “go out of the window,” although it appears they backed off those plans with the emergence of the delta variant of the virus.
In October, Knighten took advantage of the new rules to open The Broadside as The Broad Theater struggled through the pandemic and related business restrictions. But The Broadside’s most recent special event permit application has been pending with the city’s Department of Safety and Permits for months. Without it, the venue won’t be able to host live events.
Knighten said he was optimistic he’ll be able to work with the city to solve the problem before September, but he said the issue has created some uncertainty about what comes next for his business.
“What I would like to do at Broadside is to build a permanent facility — build a real bar, a real bathroom, a garden and keep the live music element as part of that,” he said. “But now all that’s on hold because I don’t want to put any more money into this if they’re not going to give me the permit.”
In the long-term, the legality of the business is even less certain, due to a ban on regular outdoor live entertainment everywhere in the city except in the French Quarter that went into effect in 2019. The new restrictions weren’t the result of a new law. Rather, they went into place when the Department of Safety and Permits quietly decided to change its interpretation of the city’s zoning laws.
The policy change came as a surprise to many in 2019, including some City Council members, who soon ordered the City Planning Commission to study the issue and make policy recommendations. Those recommendations were finalized and approved by the commission in January, and set up a framework that would likely allow The Broadside and other outdoor venues to operate in the long term.
“If nothing is done right now we’re left with regulations that don’t work,” CPC Executive Director Robert Rivers said at the January commission meeting. “[This study] was initiated under the premise that the current regulations governing outdoor live entertainment aren’t working. They aren’t working for musicians, they’re not working for neighbors, they’re not working for venue owners, they’re not understandable, they’re not clear.”
But before the recommendations can become law, they need approval from the City Council. And six months later, the council still hasn’t taken a vote.
The Music and Culture Coalition of New Orleans, or MaCCNO, has been ringing the alarm bells on the council’s inaction before the Zony Mash announcement came out.
“For now, the future for outdoor live music and entertainment in New Orleans is murky—and complicated,” read a column by the organization that was published in the July issue of Antigravity. “For now, we are stuck with the status quo; and unless some action is taken, when COVID-19 guidelines are fully rescinded most businesses will find it either illegal or cost prohibitive to host outdoor live music and entertainment once again.”
The city’s Chief Zoning Official Ashley Becnel confirmed that without council action, outdoor venues like The Broadside will have to stop operating once Mayor LaToya Cantrell’s coronavirus emergency declaration comes to a close.
“That’s always been where our concern has been,” MaCCNO executive director Ethan Ellestad told The Lens. “When these [temporary rules] sunset, and it looks like there are plans to sunset them, then what’s next?”
No City Council action
According to Councilman Jay Banks, one of the authors of the resolution that initiated the CPC study, the council hasn’t moved forward with the recommendations at the request of the Cantrell administration. According to Banks, the administration wants to tackle a separate law first, before moving forward with zoning changes.
“The administration asked us to stand down so that we could have a comprehensive overhaul of the noise ordinance to work in concert with this outdoor live entertainment piece,” Banks told The Lens. The Mayor’s Office did not respond to questions from The Lens about Banks’ comments.
New Orleans’ noise ordinance — which is not part of the city’s zoning laws — places limits on where and when loud or amplified noise is allowed. It was created decades ago, and has been a consistent thorn in the side of the city, residents and businesses. According to the CPC report, the law is so flawed the city has simply stopped enforcing it for now. For businesses like The Broadside, it is instead using the permitting process, enabled by the Safety and Permits zoning interpretation, to halt outdoor concerts.
“The existing noise/sound ordinance was drafted and adopted in the 1960s and was deliberately difficult to enforce,” said the January CPC staff report on live outdoor entertainment.
The report agreed that the city needed a better noise ordinance to effectively regulate outdoor live entertainment in the long term. But it also noted that making changes to that very controversial, high profile and complicated law would take time. And it suggested a phased approach that would allow live outdoor entertainment to continue with more certainty as the city worked on the noise ordinance.
“Live music is part of the fabric of New Orleans, so I’m gonna do all I can do to perpetuate it,” Banks said. “Now if we need to come in and fix something temporarily to make sure we can still do something, then I’m certainly in support of it.”
But despite Banks’ theoretical support, the council hasn’t moved forward with a temporary fix either.
‘It’s something we don’t have a specific copy of’
The issue is bigger than just two venues, and can be traced back to the 2019 reinterpretation of the city’s Comprehensive Zoning Ordinance by the Department of Safety and Permits.
The CZO requires businesses to close their windows and doors when they’re hosting live performances. The Department of Safety and Permits ruled in 2019 that since there are no windows and doors outside, they cannot be closed, and therefore all outdoor music violates the closed windows and doors policy.
That interpretation doesn’t appear to be consistent with the original intent of the law, City Planning Commission staff wrote in a 2019 report.
“When the new Comprehensive Zoning Ordinance was adopted in 2015, outdoor live entertainment was contemplated and seemingly authorized,” the report said. “However, a requirement for closed doors and windows, which was intended to apply only to interior performances, was not written to apply only to interior spaces. Since that time, the Safety & Permits Department has interpreted the closed windows and doors standard as effectively prohibiting outdoor live entertainment.”
The commission noted that the new interpretation also makes obsolete other sections of the CZO intended to govern outdoor live entertainment.
On top of that, the city has been unable to point to exactly when or how that interpretation changed. It doesn’t appear on a list of Department of Safety and Permits legal interpretations maintained on the city’s website. And in 2019, the then-director of the department, Zachary Smith, told The Lens that he couldn’t point to exactly where the interpretation came from.
“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,” Smith said.
Cantrell spokeswoman LaTonya Norton told The Lens in a recent email that the interpretations on the city’s website represent the more “formal interpretations.”
“We also issue many informal interpretations and decisions through zoning verifications, email responses, and in meetings. We have not done a formal zoning interpretation on this subject.”
Despite the informality of the interpretation and city planners’ opinion that it goes against the intent of city zoning law, that’s how the CZO has been interpreted ever since with respect to outdoor live music. That means now, the only way to host live outdoor entertainment outside the French Quarter is with a special event permit. Under normal rules, businesses can get a maximum of eight special event permits a year, each of which are valid for three days, for a total of just 24 days a year.
Businesses that have long hosted outdoor live music could be grandfathered in and avoid the new ban. But according to an internal email from April obtained by The Lens, Becnel is only aware of one such business — Bacchanal Wine in the Bywater.
During the coronavirus pandemic, Mayor LaToya Cantrell suspended the limitations on the number of special event permits per year in order to encourage outdoor activities to combat the spread of the virus. Those temporary rules have allowed businesses like The Broadside to make live outdoor entertainment a core part of their business.
“In general it seems to be going fairly well,” Ellestad said. “As an organization, we give the city credit for it. It was needed. It was a response to creating a space for musicians to perform in a safer space.”
Under the temporary rules, businesses can apply for a special event permit that’s valid for an initial 10-day period and which can be extended for up to six months after that.
The Broadside had an initial six-month permit starting in July 2020. In January, Knighten applied for a renewal and additional six-month permit. According to the city’s online permit database, the application is still pending. Knighten said he never got word one way or another on the application after he submitted it. And he said that he was recently told by a Safety and Permits employee that they had no record of the permit.
Even if the application had gone through quickly, the event permit would have expired by the time Knighten wants to reopen in September. He’s planning on reapplying for a new six-month permit next week. He also has a hearing with the City Planning Commission on Aug. 10 to discuss a zoning change that would allow the property to be designated an “outdoor amusement facility.”
But even if the change is approved, the current Safety and Permits interpretation would still prevent Broadside from hosting live events in the absence of a special event permit.
It’s unclear how long the temporary special event permit rules will stay in place. In May, emails between Becnel and Health Department Director Dr. Jennifer Avegno indicated that the city was preparing to wind the program down.
“Another conversation we need to have soon-ish is altering the guidelines’ current waiver of the limits on special events per year,” Becnel wrote. “These long-term outdoor live entertainment events are beginning to cause some controversy and I’m curious what you think as to the ongoing necessity.”
“Those can probably largely go out of the window,” Avegno responded.
In a recent interview, Becnel told The Lens that with the rise of the delta variant of the coronavirus and rising infection rates, that future of rules is a bit murky.
“There’s nothing concrete,” she said. “When things were looking a little bit better on the COVID front, we were looking at all parts of the guidelines to see how long they should be in effect. I haven’t heard anything lately on that and I would defer to Dr. Avegno and her team on when she thought making changes to the guidelines was appropriate.”
Norton told The Lens that there wasn’t currently an estimate on when the rules would end.
The CPC report
The January CPC report is aligned with the Cantrell administration’s position that a permanent zoning change on outdoor live entertainment needs to be coupled with a revision of the city’s noise ordinance. But there appears to be less consensus on what to do in the meantime.
The study notes that the noise ordinance isn’t a zoning law, and therefore it doesn’t fall under the purview of the CPC. Since the ordinance is administered by the city’s Health Department, the study said, that’s where the revisions should come from.
There appears to be at least vague plans for the Health Department to tackle a new noise ordinance. But the Cantrell administration didn’t respond to questions about that timeline. And as the CPC study noted, the department has been extremely busy trying to handle a global pandemic.
“That would be a very intense process that would require availability of the Health Department staff, the Law Department as well as the general public,” city planner Paul Cramer said at the January CPC meeting. “And that will probably take at least a year by itself.”
The study recommends that in the meantime, the city move forward with “Phase 1,” which would more or less extend the temporary COVID rule that lifted the special event permit cap. The study argues that although the noise ordinance still wouldn’t be complete, it is much easier to regulate and manage businesses with temporary special permits, which can be revoked or simply not renewed for a number of justifications.
That’s different from long term zoning changes that would give more properties the vested right to host live entertainment without having to obtain a special temporary permit. The study agreed that those zoning changes should occur after the noise ordinance is revised.
On top of the recommendations on outdoor live entertainment, the CPC study also made general recommendations on how music and cultural priorities could be better represented in city government and the policy process.
Those recommendations include creating a music and culture advisory group or commission, as well as a “Nightlife/Entertainment/Cultural Economic Advocate” who would give business owners, artists and musicians more reliable access to participate in policy decisions.
Knighten told The Lens that he also thought there needed to be better representation in city government of people who understand and can work with cultural industries and workers. He repeatedly said that he didn’t think the issues he’s facing lied with the individual Department and Safety and Permits employees he was dealing with.
“They’re overworked, they’re overwhelmed and I don’t think they have clear guidance on what to do,” he said. “They’ve all been very helpful to the best extent that they can. I feel the situation is that there’s no direction. There’s no solid guidelines for how to proceed because this is kind of uncharted territory.”
He said that on top of his own financial interest, the city should actively want and encourage businesses like The Broadside to thrive.
“What we’re trying to do is offer families, anyone really, a different opportunity to experience live music and live events. Kids, we love to have kids at Broadside. We want to have early evening shows, different types of events. … We could build a nightclub here, another music venue here no problem. But we don’t want to compete in that space. We don’t want to compete with Tip’s and Maple Leaf. We want people to be able to see a show here that ends at 10 p.m. and then if they want to go to Tip’s they can still get to Tip’s before the show starts.”
He said that he’s had some offers to sell the land for redevelopment into a strip mall or big-box store. But he thinks that ultimately, The Broadside provides the city with a more needed resource.
“We need something that’s unique and interesting that citizens can enjoy and can bike to and all of that,” he said. “Whenever [the city] start’s to give you this frustration you start to look at that neighborhood Walmart offer and you go, huh, maybe that isn’t a bad idea. That’s the type of thing I’m up against.”