A suite of new proposals to expand outdoor entertainment in New Orleans is dredging up familiar arguments between musicians and neighborhood groups, recalling the past decade’s unresolved debate over a broader issue of noise enforcement.
It’s coming to a head as the City Council prepares to consider ordinances governing outdoor entertainment at bars, restaurants and other venues, a business model that blossomed during COVID-19 shutdowns but now faces an uncertain future.
Musicians, venue owners and their advocates want to focus narrowly on a set of zoning measures aimed at securing legal status for outdoor stages; they prefer to leave a potentially drawn-out debate over noise enforcement for another day. But residents who live near prominent venues do not want to consider new regulations at a time they say Mayor LaToya Cantrell’s administration fails to enforce existing laws, including a 60-year-old noise ordinance that officials have long admitted is unconstitutional and impractical.
After the Planning Commission failed May 24 to recommend new proposals, it is now up to the City Council to navigate the interests of two historically adversarial factions. Neither side seems to relish the prospect of another brawl. Nor do they see an easy way of avoiding one.
“It’s headed towards entrenched conflict, the same direction many of these other issues around the noise ordinance, around shared cultural space, have ended up over the past decade,” said Ethan Ellestad, executive director of the Music and Culture Coalition of New Orleans, a music advocacy organization. “It would be unfortunate if we got bogged down in a secondary argument.”
The noise ordinance has proven to be a political minefield in the past. The City Council twice tried and failed to revise it toward the end of former Mayor Mitch Landrieu’s first term. The first proposal collapsed amid public outcry over its restrictiveness; the second, which was confined to Bourbon Street, failed amid allegations of backroom dealing and threats to public officials.
The new proposals would generally permit outdoor performances in most places where it is allowed indoors, provided there is a 600-foot buffer from residential areas. The City Council would consider permits within 600 feet on a case-by-case basis, with conditions tailored to each circumstance.
While the 600-foot buffer and reliance on conditional use are general principles, the zoning package is a thicket of modified districts and uses. Planning commissioners failed to muster enough votes either to approve or reject the measures amid confusion over the finer points.
Even if an eventual agreement over zoning intricacies is conceivable, neighborhood leaders say negotiations that don’t include enforced noise limits are a non-starter.
“If you can prove that you’re able to do it and you are willing to do it, then we’re not going to keep having these fights. Then everybody wins,” said Erin Holmes, executive director of the Vieux Carre Property Owners, Residents and Associates.
That probably means fixing the noise ordinance before anything else, Holmes said.
Those opposing the outdoor entertainment proposals also point to the Cantrell administration’s failure to enforce the city’s three-year-old short-term rental law. Beyond that, the city’s broken streets, blinking traffic signals and stalled road projects sow distrust in day-to-day administrative competence, she said.
“When people scream lack of enforcement, they don’t just mean short-term rentals and they don’t just mean sound ordinances; they mean everything,” Holmes said.
How it all began
The argument over outdoor entertainment began with the unlikely combination of a quirk in the existing zoning law, a peculiar legal interpretation and a pandemic.
Existing regulations seem intended to allow outdoor entertainment in most bars and restaurants, except in the French Quarter and within 30 feet of a residence. Even within those exceptions, the law allows for outside entertainment on a case-by-case basis with the City Council’s approval.
But confusion arose in 2019 over a requirement that “windows and doors shall be closed during live entertainment performances.” Because this requirement does not explicitly refer to indoor performances, city officials determined that outdoor entertainment is technically illegal at bars and restaurants.
“The zoning code lacked one word,” Ellestad said. “Had the word ‘indoor’ been in there, none of this would have happened.”
It is not clear how long the windows-and-doors interpretation has been around. A 2019 report in The Lens made it known to the public, but the Cantrell administration’s chief zoning official, Ashley Becnel, said it predates her hiring in 2018. She said it stems from a mandate in the zoning code that favors restrictiveness by default.
“For us, that means resolving ambiguities in favor of a more restrictive reading,” Becnel said.
Music advocates scrambled to get City Council members to clarify the zoning code. In January 2020, the council directed the Planning Commission to undertake a deep-dive review of existing regulations in New Orleans and other cities.
Then the pandemic hit, and legalizing outdoor performances gained new urgency as music-loving New Orleanians turned to porch concerts, courtyard gigs and park jams as safe ways to gather. Cantrell, under the authority of her COVID-19 emergency declaration, temporarily waived limitations on outdoor special event permits. That let venues hold regular outdoor shows and breathed a little oxygen into the local music industry.
Some venues set up permanent outdoor stages with an eye toward post-shutdown life, and garnered enthusiastic followings. The Zony Mash Beer Project’s outdoor shows supported a “concentric ring” of music industry professionals with its outdoor shows during the shutdown, Zony Mash co-owner Alexis Annis told the Planning Commission.
“There’s not just musicians. There [are] lighting and audio techs [whom] we were able to employ; there is the instrument repair person, the piano tuner, the audio supply stores where we go to buy equipment,” she said.
The Planning Commission’s study came out in January 2021, a year after the process began. Lacking further council action, the study was shelved for another year. Council member Helena Moreno dusted it off in February, directing the commission to recommend a set of zoning proposals based on the study’s findings.
A subsequent two-hour public hearing replayed an argument heard countless times in the City Council chamber over something deeper than zoning regulations and enforcement. Music advocates argued to protect New Orleans’ historical identity as a community built on music; neighborhood leaders argued for the right to live in peace.
“I support legalizing outdoor music in New Orleans. And it’s just crazy that I, a native New Orleanian, have to say those words,” said Melanie Morel, who lives in Gentilly Terrace. “I want to hear music in the streets, in my neighborhood, in the city.”
Later, French Quarter resident Nikki Szalwinski said she lives with unbearable noise.
“There’s nothing that we can do about it. If we complain nothing happens,” Szalwinski said. “Until we have a workable noise ordinance, why are we even here? I think we put the cart before the horse.”
The future of the relaxed special event permits now used by outdoor venues is fuzzy. Becnel said they will remain available only as long as Cantrell’s COVID-19 emergency declaration remains in effect, but the declaration can be terminated or modified at any time.
Amid a showdown in March over residency requirements for workers at the juvenile jail, for example, the City Council partially terminated the emergency declaration — but only as it relates to the mayor’s unilateral authority to lift the residency requirement.
Music advocates fear the special event permits could be similarly axed if they became politically unpopular, or for other arbitrary reasons, Ellestad said.
“There’s not a solution around temporary permitting,” Ellestad said. “That puts all these businesses that have been doing outdoor music at risk.”
Becnel said the administration will revert to restrictive zoning for outdoor entertainment when the emergency declaration ends, unless measures like the ones now being considered become law.
“We’ve been keeping an eye on the outdoor live entertainment text amendment process, and think that’s probably the best way to solve the issue,” she said.
The Royal Frenchmen Hotel obtained a month-by-month special event permit on May 20, after closing its bar and performance space for two months to clear up confusion around its permitting.
“Every step of the way, it’s just so ambiguous, what I am and am not allowed to do. Literally all I want is clear regulations that allow me to exist as a functional business that can actually sustain itself,” said Tyler Daly, who operates the business.
Daly hosted outdoor performances throughout the COVID-19 shutdown, thinking he was covered by a special event permit he obtained in July 2020. That permit expired after 10 days, but when he reapplied, he said, City Hall permitting staff told him the previous one remained in effect. That explanation seemed to satisfy police officers who frequently showed up and departed without incident in response to noise complaints, he said.
But it did not satisfy nearby residents, who did not understand how the hotel could continue hosting outdoor performances without a permit.
“They are limited to the amount of special event permits that they can get,” said Allen Johnson, president of the Faubourg Marigny Improvement Association. “The neighbors were just asking them to follow the rules.”
Things changed in June, when an officer demanded to see Daly’s permit, forcing him to close for the night. The next day, he said, he asked the permitting staff for a physical copy of the permit; the staffer said a cease-and-desist letter had been issued.
“I called up to get a copy of my permit and ended up getting a cease and desist instead,” he said.
Daly finally secured a new special event permit on May 20, renewable monthly through November, letting him reopen the courtyard for the time being. He is in the process of acquiring the business, but is hesitant to close the deal without a more permanent status.
“I didn’t want to buy a business if I couldn’t get permits. We are waiting for that to happen before I put my name on the line,” Daly said.