The saga of the Uptowner just won’t die. The establishment itself is dead – the long-standing but unsuccessful reception hall has been out of business since before Hurricane Katrina. However, the fate of its building remains unclear, and the city remains intransigent as ever.
The basic story of the Uptowner is now well-known. Restaurateur Greg Sonnier vied to relocate Gabrielle, his former Mid-city eatery to the former location of the Uptowner at 428 Henry Clay Avenue. However, although the Uptowner had a license from the city to operate as a restaurant, it had a non-conforming use permit that only allowed it to operate as a reception hall.
Some local residents complained about Gabrielle opening in the Uptowner building because they feared it would cause noise, traffic and parking issues. Mr. Sonnier agreed to provide off-street parking via a valet service to mitigate these concerns, but ultimately his request for a variance was soundly rejected.
In denying his appeal, several council members added insult to injury by suggesting comically inappropriate alternative locations in their districts, as if high-end restaurants are clamoring to move to Central City or New Orleans East.
However, the story did not end. Recently, an outfit operating under the name “Mystery Street Productions” began promoting an invitation-only “weekly or biweekly supper club, to allow the people of NOLA to enjoy the ‘Good Eats’ of Gabrielle Restaurant once again.” Essentially, Mystery Street is holding private functions, just as the Uptowner did.
Alas, this did not mollify the city. Safety and Permits Director Paul May sent Mr. Sonnier a letter stating that “use of the premises for a supper club is an illegal use because a restaurant is not permitted at this location.” The letter threatens legal action if the Mystery Street events are not stopped.
It is unclear exactly why the city is making this threat. The Uptowner was as a reception hall for private events. Mystery Street claims that it is distinct from Gabrielle or the Sonniers, and it meets irregularly once or twice per week. In terms of neighborhood impact, there’s no real difference between Mystery Street’s so-called “supper club” and the business previously done by the Uptowner (at least when it was an active business).
In any case, Mystery Street simply isn’t a restaurant. It isn’t maintaining regular days or hours and isn’t open to the general public. Strictly speaking, the zoning code doesn’t specifically deal with what Mystery Street is doing, although it is more analogous to a reception hall than a full-fledged restaurant.
Even if Mystery Street is arguably a restaurant, the zoning code must still be read in favor of allowing the disputed use. As the Louisiana Supreme Court noted in New Orleans v. Elms, 566 So. 2d 626, 632 (La. 1990), “[a] zoning ordinance, being in derogation of the rights of private ownership, must be construed, when subject to more than one reasonable interpretation, according to the interpretation which allows the least restricted use of the property.”
Admittedly, Mystery Street probably isn’t doing itself any favors by calling its events a “supper club,” which is defined in the zoning code as a “standard restaurant” with live entertainment. On the other hand, one would hope that the city actually bothered to investigate the nature of the use prior to threatening legal action.
The fact does remain that Mystery Street is not strictly operating as a reception facility, which falls outside the scope of the allowable non-conforming use.
Still, Mystery Street has a good argument as to why its use should be permitted as a strictly legal matter. Under Section 13.4.1 of the zoning code, the general rule for non-conforming use permits is that “a nonconforming use of a building may be changed to another nonconforming use of the same or more restrictive classification, provided that the new nonconforming use is not more intensive than the prior use.” The use of the Uptowner as a “reception facility” is no more intensive than its use for weekly or biweekly private dining events. As noted above, as a practical matter, they’re essentially the same thing.
Even if this were not the case, just saying “the law is the law” is hardly a satisfying response as to why the city is willing to commit scarce resources to closing down Mystery Street. There just doesn’t seem to be any point.
So why does the city have it out for the Sonniers and this Mystery Street venture? Your guess is as good as mine. If I didn’t know any better, I’d suspect ulterior motives, and if that’s the case, then there are bigger problems here than misguided and over-zealous zoning enforcement.
Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.