After more than a year of inaction, the New Orleans City Council on Thursday voted to move forward on recommendations from the City Planning Commission to allow businesses to host outdoor live performances and ensure that outdoor venues can continue operating once temporary pandemic rules expire. 

“There’s been so much ongoing work and discussion around this topic, and it’s exciting to get to move this forward,” Councilwoman Helena Moreno said. “As we all know, music and performance are just a huge part of New Orleans soul and culture. And we really need to do whatever it takes to support our musicians.”

The council’s vote comes as a sigh of relief to musicians and venues around the city, who have been in limbo since 2019, when Mayor LaToya Cantrell’s administration suddenly changed its interpretation of the city’s zoning laws to prohibit regular live outdoor entertainment at any business aside from some exceptions in the French Quarter.

Soon after The Lens reported on the change, the City Council ordered the City Planning Commission to recommend revisions to the law. In January 2021, the commission approved the recommendations in a staff report on how to reverse the administration’s decision and allow businesses to host outdoor live music again. 

But at the request of the Cantrell administration, the council never took any action. That is until Thursday, when the council finally voted to start the process to adopt some of those recommendations to allow businesses to host outdoor entertainment and to give more official permission to “spiritual” and “incidental” entertainment like second lines.

There’s still a long path ahead. The CPC will now hold a public hearing on the proposed changes, then draft a full proposal of needed zoning changes, which would have to be approved again by the council. And this process would only set up interim rules as the city works on permanent ones to accompany a revamped noise ordinance.

Despite the work ahead, many were happy to see some progress.

“A profound thank you for moving this forward,” Ethan Ellestad, executive director of the Music and Culture Coalition of New Orleans, said on Thursday. “It’s been really frustrating to have this pause for the past year without any forward movement, knowing the need for it, knowing the fact these places were creating economic benefit, sometimes a lifeline and a safe place to play for musicians.”

Under the city’s restrictive zoning interpretation, the only way for businesses in most of the city to host outdoor entertainment is with a special event permit. And businesses can normally only get eight special event permits a year, each of which are valid for three days, for a total of just 24 days a year.

During the coronavirus pandemic, the city lifted the cap on special event permits to encourage outdoor socializing and allow outdoor venues to operate full time. But the administration has been clear that the measure is temporary, and the cap will be reinstated once the pandemic subsides. 

That created a nerve-wracking situation for venues that changed their business models during the pandemic to center around live entertainment, like The Broadside and Zony Mash Brewery. Finally, though, the council is moving forward to create rules that will allow those businesses to continue operating. 

But not everyone who spoke at Thursday’s meeting was enthusiastic. There was a minority of commenters who voiced concerns of impacts to residential neighborhoods, since the city has effectively stopped enforcing its current flawed noise ordinance. 

Erin Holmes, executive director of the Vieux Carré Property Owners, Residents & Associates, said that the city should work to strike a balance between promoting outdoor music and maintaining resident quality of life.

“As we’ve seen over the last two years, outdoor music is a necessity for our communities,” she said. “We do of course have concerns regarding some of the specific recommendations in the study, issues like frequency and adjacency to homes. But we know this is a process and we look forward to it.

The debate hints at what will likely be a contentious road ahead, as the city begins to tackle a thorny issue that officials have avoided for years.

‘We believe we’ve made a decision’

People have been debating New Orleans’ rules around public music for decades. It came to a head again in 2019 when the Department of Safety and Permits changed its interpretation of the city’s zoning laws to prohibit businesses from regularly hosting outdoor live entertainment. 

The department pointed to a section of the Comprehensive Zoning Ordinance, or CZO, that requires venues to close their windows and doors during live performances. Since you can’t close windows and doors at an outdoor concert, that department decided the rule effectively prohibited live outdoor 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 the interpretation does not appear on a list of Safety and Permits interpretations listed on the city’s website. 

Zachary Smith, then the head of the department, told The Lens at the time 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 a 2019 report, the City Planning Commission wrote that the department’s interpretation didn’t seem to conform to the original intent of the law, and that the rule about closed windows and doors “was intended to apply only to interior performances.”

Nonetheless, that’s how the city has been interpreting it since 2019.

In January 2020, a few months after The Lens reported on the new interpretation, the City Council directed the City Planning Commission to study the issue and recommend changes to the law. That report was released a year later in January 2021. 

The report suggested a two-phased approach. The first phase is meant to be temporary, and more or less extend the administration’s pandemic decision to lift the cap on special event permits. The rules would allow businesses to host live outdoor entertainment two to three times a week with a single annual permit. Phase 1 would also make changes to several zoning categories to clarify that even without the special event permits, outdoor entertainment is allowed under certain circumstances, despite the rule on closed windows and doors.

The council’s Thursday vote directs the City Planning Commission to move forward with those phase one plans. 

Phase two of the plan would be much more difficult and was not part of Thursday’s vote. The report says that permanent rules on outdoor entertainment can’t be written until the city revamps its noise ordinance, which was written in the 1960s and has become so outdated that the city has stopped enforcing it altogether. 

But the noise ordinance isn’t a zoning law, meaning it isn’t handled by the City Planning Commission. That means that the city’s Health Department and City Council will need to work to re-write that ordinance. Only then can the CPC begin writing permanent rules on where and when live outdoor music is allowed.