FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-06733,
DIVISION "N-8" Honorable Ethel Simms Julien, Judge
Sharonda R. Williams FISHMAN HAYGOOD, L.L.P. COUNSEL FOR
T. Smith ASSISTANT CITY ATTORNEY Shawn Lindsay DEPUTY CITY
ATTORNEY Rebecca H. Dietz CITY ATTORNEY COUNSEL FOR
composed of Judge Roland L. Belsome, Judge Rosemary Ledet,
Judge Paula A. Brown
Rosemary Ledet, Judge
is a zoning case. The plaintiff, Edward Trent Robinson,
applied for a permit to operate a social club. Both the
Director of the Department of Safety and Permits, Jared
Munster, Ph. D (the "Director"), and the New
Orleans Board of Zoning Adjustments (the "BZA")
denied Mr. Robinson's request for a permit, finding the
proposed use did not meet the definition of a social club
under the Comprehensive Zoning Ordinance for the City of New
Orleans ("CZO"). On Mr. Robinson's appeal, the
trial court reversed. From the trial court's judgment,
the City of New Orleans (the "City"), the Director,
and the BZA (collectively, the "Appellants") appeal
to this court. For the reasons that follow, we reverse the
trial court's judgment.
AND PROCEDURAL BACKGROUND
dispute arises out of Mr. Robinson's application to
operate a social club to promote various cultural aspects of
the City-the Mardi Gras Indians, art, food, and music. Before
applying for the permit, Mr. Robinson registered the social
club-the Crescent City Connection Gris-Gris Pleasure Aide and
Social Club ("Crescent City")-with the Louisiana
Secretary of State as a non-profit corporation. Crescent City
is a tax-exempt entity; and Mr. Robinson is its president.
Crescent City will be open to anyone who pays the membership
fee; Mr. Robinson initially set the membership fee at $1, 377
per year, coinciding with the street address for the selected
venue. The selected venue for the social club is an old,
former firehouse located at 1377 Annunciation Street in New
Orleans, Louisiana (the "Property"). Mr. Robinson
leased the Property from Tim Bonura/TMF Hotel
the CZO, the Property is located in the Historic Urban
Neighborhood Business District ("HU-B1A") zoning
district. In the HU-B1A zoning district, a social
club is a permissible use; a live performance venue is not.
See Section 12.2.A (Table 12-1) of CZO. A social
club and a live performance venue are defined in Section 26.6
of the CZO as follows:
Social club or lodge. Structures operated by
an organization or association for some common purpose, such
as, but not limited to, a fraternal, social, educational, or
recreational purpose or a union hall, but not including clubs
organized primarily for profit or to render a service which
is customarily earned on as a business. Such organizations
and associations shall be incorporated under the laws of
Louisiana as a nonprofit corporation or registered with the
Secretary of State of Louisiana. Fraternities/sororities are
not considered social clubs or lodges
Live performance venue. An indoor facility
for the presentation of live performances, including musical
acts, theatrical plays or acts, stand-up comedy, magic, dance
clubs, and disc jockey performances using vinyl records,
compact discs, computers, or digital music players. A live
performance venue is only open to the public when a live
performance is scheduled. Unless otherwise restricted by this
Ordinance, a live performance venue may serve alcoholic
beverages as an ancillary use but only when the venue is open
to the public for the live performance. A live performance
venue does not include any adult uses.
Mr. Robinson's proposal as a "Live Performance
Venue/Bar, " the Director denied Mr. Robinson's
permit application. In his February 23, 2017 Letter of
Determination, the Director gave the following reasons for
The proposal, as it is understood by the Department,
contemplates a members-only social club which will operate a
restaurant offering breakfast, lunch, and dinner meal service
with live entertainment during lunch and dinner with
additional music performances after dinner service on a
Upon evaluating the proposal and upon further clarification
of the proposed operating parameters, the Department . . .
has maintained its initial determination that this proposal
constitutes a Live Performance Venue/Bar, which is not a
permissible use in the HU-B1A, Historic Urban Neighborhood
While we appreciate that the entity that will be operating
the establishment is a non-profit social club for the benefit
of its membership, the Department is bound by the language of
the Comprehensive Zoning Ordinance in making this
determination. . . . It is true that your proposal makes a
distinction between being "open to the public" and
being restricted to members only; however, the Department
cannot differentiate between the availability of walk-up
one-day-membership deposit entry and the sale of tickets for
Additionally, the definition of Social Club or Lodge . . .
"[excludes] clubs organized primarily for profit or to
render a service which is customarily carried on as a
business." As the uses contemplated within the social
club are services customarily carried on as a business, the
Department must analyze the proposal as that business type.
Unfortunately a Live Performance Venue is not a Permitted Use
within the HU-B1A Zoning district.
Director further noted that the operating parameters set
forth in Section 20.3 CCC of the CZA "are supplemental to
the definitional standards provided in Article 26" and
that "one must first look to the definitional
requirements to determine the proper classification of the
April 10, 2017, Mr. Robinson appealed the Director's
decision to the BZA. As part of his appeal, his attorney sent
a letter to the BZA. Arguing Crescent City was in compliance
with all the pertinent provisions of the CZO regarding the
definition and use standards for a social club, his attorney
stated the following:
• Crescent City is a [Section] 501(c)(7) [of the
Internal Revenue Code] that is registered as a non-profit
corporation with the Louisiana Secretary of State as such.
• Crescent City is seeking a permit to operate as a
social club for a common purpose of promoting New Orleans
arts, music, and culture.
• Crescent City is seeking to operate the social club at
1377 Annunciation, and not more than 50% of the floor space
at that location will be used for office space.
• Crescent City anticipates serving food and beverages
only to its members. It is anticipated that culinary
instruction and training would be an aspect of the use of the
• Crescent City will comply with all laws and
regulations related to lease of the space for any receptions.
Robinson's attorney also stated that the proposed
business was not a live performance venue, as the Director
found, for two reasons: "(1) the social club would not
be open to the public and (2) the social club would not be
open only during live performances."
5, 2017, two representatives of the neighborhood sent emails
to the BZA voicing their opposition to Mr. Robinson's
proposed venture. First, Julie Simpson, the president of
Coliseum Square Association, stated in her email that
"the greater portion of [Mr. Robinson's] venture,
evidenced by the large floor space taken up with a stage and
viewing area for the stage, gave neighbors great pause in
supporting the music component of his project." She
further stated that "nightly live music was a very real
part of this club." She observed that the building,
which has no real sound deadening equipment, is very large
with vintage windows and surrounded by residential properties
on all sides.
second email was from Louis J. Volz, III, a former president
of Coliseum Square Association and a former City Planning
Commission member. In his email, Mr. Volz stated that an
attempt to have a social club that functions more as a live
music and entertainment venue is inconsistent with the CZO
and that "[t]he proximity of the proposed facility to
residential components would be injurious to the residents of
the neighborhood." He also stated that the "[m]ere
use of a name that includes the term 'social club' is
hardly dispositive of actual use and intent."
email exchange dated May 15, 2017, Mr. Robinson requested
that the statement regarding his appeal on the BZA's
agenda be clarified. Regarding Mr. Robinson's appeal, the
BZA's agenda stated as follows:
Denial of permit (application number 17-02463-RNVN) to
operate as a members only social club, which will serve meals
and offer live entertainment during lunch and dinner service.
The definition of "social club" prohibits
operations for profit or to render a service customarily
carried on by a business. The Director asserts live musical
performances in a social club constitute activities
customarily carried on by a business.
email, Mr. Robinson asserted that the BZA's agenda was
"inaccurate, as Director Munster has officially
recognized our intended occupancy as Social Club or Lodge as
per city code [CZO Article] 20.3.CCC; however, yet [he] did
not recognize the right to have live entertainment for our
membership which is what we are seeking to appeal before the
response, the Director, on the same date, wrote:
The request as state[d] on the agenda is correct. The
question at issue is whether the use as it was proposed is
properly classified as a social club or something different.
You have changed the operating parameters since that time to
bring it within what is allowable as a social club per this
Robinson replied: "[t]o be clear, we will [be] appealing
our right as a 20.3.CCC to live entertainment before the BZA
correct?" The City Planner replied:
You are technically appealing the determination of the
Director of the Department of Safety & Permits pertaining
to the letter dated February 23, "1377 Annunciation
St.-permit application 17-02463-RNVN.[-]
In reading that letter, the appeal will be focused around
Article 26's definition of Social Club or Lodge. As Dr.
Munster mentions below, ". . . whether the use as it was
proposed is properly classified as a social club or something
June 12, 2017 BZA hearing, multiple witnesses testified,
including Mr. Robinson, his attorney, the Director, and
representatives of the neighborhood. The neighborhood
representatives echoed the views expressed in Ms.
Simpson's and Mr. Volz's emails; the gist of their
testimony was that the proposed use of the Property was not
as a social club, but rather as a live performance venue or
nightclub. Mr. Robinson's attorney repeated the arguments
set forth in her letter to the BZA. His attorney also
emphasized that, in response to the Director's concerns,
Mr. Robinson had removed the daily membership option from his
proposed use of the Property. The Director replied that he
had reservations about Mr. Robinson amending his business
proposal "on the fly" and that the substance of his
opinion would not change based on Mr. Robinson's
revisions. He opined that "this is a live entertainment
venue regardless of whether that membership has to be paid at
the door, all $1, 300 of it, or can be broken down across
months or days."
the dispositive issue before the BZA was whether the Director
correctly classified the proposal as a "Live Performance
Venue/Bar." Addressing the classification issue, the
Director testified that it is the role of the Department of
Safety and Permits to make sure that a proposed use coincides
with the use and definition standards in the CZO. The
Director explained that "if it acts like a business, we
have to treat it like the business it acts like." The
Director determined that Mr. Robinson's proposed venture
acts more like a live performance venue than a social club.
Given that a live performance venue is not allowed in the
HU-B1A zoning district, the Director requested that the BZA
uphold his denial of the permit. The BZA voted three-to-one
to deny the appeal.
12, 2017, Mr. Robinson filed a "Verified Petition for
Writ of Review, " pursuant to Article 4.8(B) of the CZO
and La. R.S. 33:4727(E)(1),  in the trial court, naming
Appellants as defendants. In his petition, Mr. Robinson
averred that the Director's decision "looks beyond
the fact that a social club is a permitted use in the zoning
district." He averred that the Director denied his
permit on the following two grounds:
(1) Mr. Robinson was seeking to establish a Live Performance
Venue, which is not permitted in the HU-BIA zoning
(2) the music and Mardi Gras Indian workshops would
constitute live performances that are services customarily
carried on as a business.
Robinson further averred that the BZA's decision is
"not supported by the express language of the CZO, and
the decision is, without question, arbitrary, unreasonable,
and capricious considering the inconsistent application of
the definition of 'social club.'" He still
further averred that the definition of social club, as set
forth in the CZO, is being applied differently to persons
similarly situated, violating his right to equal protection.
November 7, 2017, the trial court found the BZA's
decision to uphold the Director's denial of the permit
was arbitrary and capricious and, thus, reversed the
decision. The trial court provided the following reasons for
Initially, the court notes that Mr. Robinson requested a
permit to operate a social club. The club will be used by the
Wild Magnolias[-a Mardi Gras Indian group-]as their home base
to store and sew their suits and there will be live music on
occasion. And, when [D]efendants voiced concerns that
allowing a daily membership fee for members would appear to
be a live performance venue rather than a social club, Mr.
Robinson revised his business model to delete the daily
membership fees as an option.
The court finds that this proposed social club meets the
definition of a social club as it is incorporated under the
laws of Louisiana and is registered with the Louisiana
Secretary of State. . . .
While the BZA maintains that the proposed social club is
actually a live music venue, in Flex Enterprises, Inc. v.
the City of New Orleans, [00-0815 (La.App. 4 Cir.
2/14/01), ] 780 So.2d 1145 . . . the court held that when
property is zoned to allow a specific type of establishment,
AND the proposed establishment meets the zoning requirements,
the BZA is arbitrary and capricious if it denies the permit
simply because [the BZA] believes that the property will
actually be used for an improper or illegal purpose.
In the case at bar, because the evidence reflects that Mr.
Robinson applied to operate a social club, the proposed
establishment meets the definition of a social club as
provided in the CZO, and social clubs are permitted in HU-B1A
zoning districts, the court finds that the BZA was arbitrary
and capricious in denying Mr. ...