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Robinson v. City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

May 16, 2018


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-06733, DIVISION "N-8" Honorable Ethel Simms Julien, Judge



          Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Paula A. Brown

          Rosemary Ledet, Judge

          This 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.


         This 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 Properties.[1]

         Under the CZO, the Property is located in the Historic Urban Neighborhood Business District ("HU-B1A") zoning district.[2] 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.

         Classifying 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 his decision:

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 nightly basis.
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 Business District.
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 a performance.
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.

         The Director further noted that the operating parameters set forth in Section 20.3 CCC of the CZA[3] "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 proposed use."[4]

         On 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.[5]
• 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 space.
• Crescent City will comply with all laws and regulations related to lease of the space for any receptions.

         Mr. 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."

         On June 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.

         The 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."

         In an 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.

         In his 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 board."[6]

         In 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 Department's standards.[7]

         Mr. 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 different."

         At the 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."

         Ultimately, 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.[8]

         On July 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), [9] 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 district[;] and
(2) the music and Mardi Gras Indian workshops would constitute live performances that are services customarily carried on as a business.

         Mr. 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.

         On 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 judgment:

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. ...

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