Dear Councilmember Ramsey

Dear Councilmember Ramsey,

As you know this Thursday, April 23, 2015 the Council will vote on adopting the new Draft of the Comprehensive Zoning Ordinance. In conjunction therewith, several of your amendments will be before the council. I write to inform you of the potentially detrimental impacts your amendments would have for the business and residential community in your district, of which you likely were not aware when these amendments were being drafted and/or proposed to you.

As you know, the Louisiana Constitution mandates that the quaint and distinctive character of the Vieux Carre be protected. To this end, the zoning ordinance has always ensured that the proper balance is struck between uses, and such uses have always been properly defined in order to provide for predictable and sustainable land uses that may properly co-exist. Yet your proposed amendments could potentially disrupt this historical balance which has existed for decades prior to this zoning ordinance draft.Such proposed alterations will disturb the status quo in one of the most historic and fragile neighborhoods in the entire state.

Specifically, I would like to address your amendments:

NMR-1(7) changes the definition of a restaurant and will now – for the first time in the history of the Zoning Ordinance – permit this unpredictable ‘morphing’ by permitting musical performances and live entertainment at any restaurant, City-wide.

Currently, the CZO specifically defines standard restaurants as not including ‘live entertainment’. This is to prevent the proliferation of ‘nightclubs’ which are by definition, establishments that expressly permit live entertainment – with or without the service of food.
Often as we have seen throughout the City, land use intensifies clandestinely by beginning as one use (such as a restaurant), and then gradually morphing into another (by providing intermittent live entertainment, the establishment morphs into a nightclub).
This has been observed particularly on Frenchman Street and elsewhere before and after the overlay.
To prevent this proliferation of unduly intensified land use and to maintain the predictability of such uses, the definition of ‘standard restaurant’ should remain as-is, as specifically excluding live-entertainment.

Specifically relegated to the French Quarter, and in conjunction with the new definition for ‘restaurant’, NMR-4(6) and (7) will permit live entertainment to occur in the courtyard of the business’s premises.

Live entertainment was previously only permitted in the VCE zoning districts, where other entertainment land uses are permitted and as such is the character of this zoning district.
VCC documentation proves that it has always been the case that live entertainment in Courtyards is prohibited, furthermore, permitting live entertainment in courtyards will lead to violations of required open space.
In conjunction with the attempt to change the definition of ‘restaurant’ permitting live entertainment in courtyards will allow ‘live entertainment’ venues to crop up in nearly every zoning district in the French Quarter.
No study has been done on the impact of allowing such a proliferation of live entertainment venues and the potential detriment to landowners – commercial and residential alike – who must often share multiple common walls.

Finally, NMR-4(9) is a completely unjustified and dangerous deviation from current law which lessens the burden of proof to establish the non-conforming uses referred-to above.

Currently, law places the burden of proof on the property owner to put forth “clear and convincing” evidence in order to establish a legal non-conforming use.
Amendment NMR-4 changes the standard to simply a “reasonableness” standard.
Reasonableness leaves to the zoning administrator and/or department of safety and permits, seemingly unfettered discretion to determine what will establish a non-conforming use, and is potentially indefensible. This would potentially open the flood gates for any number of overnight non-conforming uses to establish themselves, effectively destroying any predictability and accountability provided by having a Comprehensive Zoning Ordinance in the first place.
Moreover, a ‘reasonableness’ standard may lead to inconsistent decisions and reliance on inconsistent types of information and documentation.

Attached is a white paper, which more fully describes the practical impacts of the above amendments and explains why the amendments should be carefully reconsidered and/or withdrawn. The amendments propose profound changes in a very powerful document, and until the impact of such changes can be properly analyzed and assurances made that the changes will not detrimentally impact the neighborhoods at which they are directed, they should not be passed. We welcome further discussion on these issues and my office is available to coordinate the same.

Sincerely,

Stuart H. Smith