On Friday, the Supreme Court denied Save Audubon Park's application for writs, ending Save Audubon Park's suit challenging the Clubhouse. No reasons were given, as is usually the case. The denial leaves standing the Referee's decision which held that the Clubhouse does not contain a restaurant, but which admitted that his reasoning led to "absurd results".

Update, February 5, 2004

The 4th Circuit Court of Appeal has affirmed the District Court's ruling upholding the decision of the Board of Zoning Adjustments.

The decision is attached. (Adobe Acrobat file, 410Kb)

The appellate court agreed with Save Audubon Park in part, holding that issues of law in appeals from the BZA are to be decided de novo, and that no deference is to be given to the BZA on such questions.

On the merits, the appellate court merely adopted the reasons of the Referee appointed by the District Court and incorporated them into its decision. That decision relied on the 50% rule in the Zoning Ordinance, which provides that, in order to be a restaurant, an "establishment where prepared foods . . are offered for sale" must receive 50% of its income from the "sales of such foods . . . exclusive of alcoholic beverages."

The Referee himself noted that his application of the 50% rule "can lead to absurd results," as it would "allow a fast food restaurant to operate within a clubhouse and not be classified as a "restaurant."

As Save Audubon Park attorney Keith Hardie argued to the 4th Circuit, it would also lead to the absurd conclusion that a restaurant in a large hotel, such as Victor's Restaurant in the Ritz-Carlton, would not be a restaurant, because the room rentals would exceed the food income. Indeed, if  non-food-and-beverage income is considered in detemining whether the 50% rule is met, one could serve extensive gourmet meals in any type of business (coin-operated laundry, hardware store, etc.) without having to obtain a permit for a "restaurant,"  so long as the income from non-food items (hardware + alcohol, laundry receipts + alcohol, etc.) exceeded receipts from food alone. Indeed, a "hardware store" could receive 21% of its income from hardware, 30% from alcoholic beverages, and 49% from food, and not be a restaurant! 

This decision would make it impossible for the City to regulate restaurants contained within other types of businesses.

We strongly believe that the court's interpretation of the "50% rule" is erroneous. The CZO clearly forbids restaurants in Audubon Park outside of the zoo, whether inside a larger building or not.

The Audubon Nature Institute's own publicity material advertises the "outstanding cuisine" available at "Audubon's restaurant", where you can "enjoy the view from the restaurant's veranda"...

Referee Rules in Board of Zoning Adjustments Appeal of Clubhouse Permit

On April 10, 2003, the court-appointed Referee issued his recommendation to Judge Medley in Save Audubon Park's lawsuit appealing the BZA ruling that upheld the permit for the new golf clubhouse. Save Audubon Park had challenged the proposed clubhouse permit, claiming that the large commercial kitchen and dining areas included in the plans violated zoning regulations, which allow restaurants in park districts "within boundaries of a zoo only."

The Referee, Micky Landry, said the main issue was whether or not the clubhouse is a restaurant. He found that, while the common sense view was that the clubhouse "certainly contains a restaurant", the relevant definition of a restaurant "is not the same as is found in a dictionary" (that being "a place which serves meals to the public"), and that the City's Zoning Ordinance contains as a requirement, in its definition of a restaurant, that the sale of food, "exclusive of alcoholic beverages, must constitute fifty (50) percent or more of the revenue for said establishment" in order for it to be defined as a restaurant.

Save Audubon Park had argued that the "fifty percent rule" was designed to distinguish between bars and restaurants, neither of which are permitted in a park district. While the Referee stated that he found Save Audubon Park's argument "persuasive", he held that "the Comprehensive Zoning Ordinance, due to the fifty percent plus definition, prohibits the clubhouse from being defined as a restaurant."

However, he went on to state: "The Referee is mindful of the fact that this definition (fifty percent of its sales has to come from food) can lead to absurd results. For instance, under the law and this ruling, the clubhouse could literally allow a fast food restaurant to move into its facility, and as long as fifty percent of its total revenues did not come from the fast food restaurant, the clubhouse could not and would not be classified as a "restaurant." If a reviewing Court were to find that the food-serving establishment within clubhouses should be defined differently, then the opposite result may be reached."

The Referee concluded: "Given the facts and the law in this case, the Referee is faced with the inescapable conclusion that until the revenues from the food service of the clubhouse constitute fifty percent or more of the total revenues of the clubhouse, that clubhouse could never be defined as a restaurant", and he ruled in favor of the Audubon Commission/Audubon Institute's motion, and against Save Audubon Park.

Our attorney is reviewing the Referee's recommendations, which must be reviewed and either accepted or rejected by Judge Medley.

Background

On June 17, 2002, the Department of Safety and Permits issued a building permit for a golf clubhouse to be built in Audubon Park. On July 29, 2002, Save Audubon Park appealed the issuance of the building permit to the Board of Zoning Adjustments ("BZA"), on the grounds that the plans did not conform to the Comprehensive Zoning Ordinance ("CZO") because they included a restaurant, and restaurants were not permitted in "P" park districts.

The CZO states that restaurants are allowed in parks "within the boundaries of a zoo only." At the hearing before the BZA, one of the members of the BZA, Rev. Moses Gordon, noted that the drawings "seemed to be restaurant intensive." The board made a finding of fact that the plans showed a clubhouse containing a restaurant. The BZA’s ruling referred to "the restaurant contained in the proposed new . . . golf clubhouse," and to "the restaurant."

Though the BZA noted that the structure contained a restaurant, it nonetheless held that the "plans and specs for the new construction of a one story golf clubhouse . . . conform to the Comprehensive Zoning Ordinance."

Save Audubon Park believed that this this motion was incorrect and appealed the BZA’s decision to the District Court.

The statute governing appeals of Board of Zoning Adjustments decisions allows the court to determine whether additional evidence is necessary and to appoint a "referee" to hear that evidence. Judge Lloyd Medley first appointed Dominic Gianna. Mr. Gianna was removed because he was involved in litigation with the attorney for the Audubon Institute and Commission, Henry "Tut" Kinney. In his place, Mickey Landry, of the firm Landry and Swarr, was appointed.

On appeal, the Audubon Commission and Institute have argued that, because Golf Clubhouses are allowed in parks, and because golf clubhouses customarily serve food, the building permit was legal.

They also claim that the "food service facility" contained in the clubhouse is not a restaurant because the Clubhouse would receive most of its income from green fees and cart rentals, and not from the sale of food.

Zoning regulations define a restaurant as an "establishment" which receives more than 50% of its income from food and beverages, exclusive of alcoholic beverages. Save Audubon Park has argued that the specific limitation of restaurants to zoos should override any custom or usage, and that since there are a significant number of golf clubhouses that have no food service or no restaurant, a permit allowing a clubhouse does not automatically include a restaurant.

Concerning the requirement that a restaurant receive 50% of its income from food, exclusive of alcoholic beverages, Save Audubon Park has maintained that income from food must be measured against income from alcoholic beverages, not against income from non-food and beverage income. Save Audubon Park believes this regulation was intended to distinguish restaurants from bars, such that any food and beverage establishment earning more than 50% of its income from alcoholic beverages would be considered a bar.

Discovery

Save Audubon Park took the depositions of Carlos Cashio, the lead architect on the new Clubhouse, Dale Stastny, the CFO of ANI, and Max Futch, the "food services design consultant" on the new clubhouse. Save Audubon Park also subpoenaed records from the Futch firm, the Cashio-Cochran architectural firm and the Chrestia architectural firm, which drafted a furniture layout for the clubhouse.

One of the most telling documents obtained was the specifications for kitchen equipment. This kitchen, which, according to Audubon, isn’t part of a restaurant, contains a Booster Heater and Dishwasher capable of sanitizing 53 racks of dishes per hour; a thirty gallon tilting brazing pan with a capacity of 960 4 oz. servings; a convection oven with a capacity for five 18" x 26" standard full size baking pans; a Mobile Banquet Cart, which can hold 12 18" x 26" trays for use in serving hundreds of patrons at a time; a double basket fryer, 36" charbroiler, and a 4-burner Range with oven and salamander, comparable to that found in many restaurants.

The Chrestia furniture layout, which has been posted on the website, shows seating for 125 patrons in the new clubhouse. Ninety-six of those seats are at tables for four, restaurant style.

Henry Kinney, the lawyer for both the public Audubon Commission and the private non-profit corporation, is also the attorney for Cashio-Cochran, the architects for both the Tea Room and the Clubhouse. Our attorney asked Carlos Cashio, the lead architect on the clubhouse, how much he had been paid by the Audubon Institute, but Mr. Kinney instructed Cashio not to answer that question. Cashio stated that he did not have a degree in architecture.

Motions

Both parties filed a number of motions, including motions asking the court to render summary judgment, which can conclude the case without a trial. The motions were heard on Friday, February 21. The referee indicated his leaning on many of the motions on Friday, but took the motions for summary judgment under consideration. If he recommends granting of summary judgment for one of the parties, the matter will be heard by Judge Lloyd Medley, who can accept or reject the findings of the Referee in his final judgment.

Early on, Audubon had insisted that that it would be necessary to take depositions. However, after numerous depositions were taken, Audubon changed its mind and filed a motion asking the court to disregard all evidence taken by the parties and to focus entirely on the record produced before the BZA. The court denied this motion, noting that the question of whether additional evidence could be taken was discretionary with the court, and that Audubon should have appealed the decision to allow the taking of additional evidence earlier.

After the deposition of Max Futch, the "food service facilities designer" for the clubhouse, Save Audubon Park had filed an amended petition, claiming that the clubhouse not only contained an illegal restaurant, but also was designed to function as a catering and/or banquet facility. Audubon CFO Dale Stastny admitted that the clubhouse will serve "tournament banquets" to golfers. The amendment asked for a permanent injunction prohibiting the operation of the proposed clubhouse in any manner inconsistent with the Comprehensive Zoning Ordinance.

The Audubon defendants filed a motion opposing the amendment, stating that Save Audubon Park did not have a cause of action that would permit an injunction, and that the court could only "review" the BZA’s decision. On February 21, the Referee said he would deny the amendment, but said that this would not prevent him from recommending injunctive relief if he found it appropriate.

The Audubon Commission had filed a motion seeking the bank records of Save Audubon Park and the names of all people contacted by Save Audubon Park. Save Audubon Park argued that forcing it to reveal the names of its donors, those who had received its email newsletters, and those it had spoken to concerning the clubhouse would chill the right to free association guaranteed by the U.S. and Louisiana Constitutions and the Charter of the City of New Orleans. The referee apparently agreed, and refused to order Save Audubon Park to produce the confidential information.

In support of its motion for summary judgment, the Audubon defendants had filed an affidavit by Patricia Fretwell, former Chief Planner for the City Planning Commission. Fretwell’s affidavit said that, in her opinion, the "food service . . . facilities" in the new clubhouse were appropriate in a park district. She also claimed that there was no restaurant in the clubhouse because revenues from food service "will not exceed fifty (50%) percent of the revenues for the entire golf clubhouse."

Save Audubon Park moved to strike this affidavit, arguing that Ms. Fretwell’s affidavit primarily interpreted the law, which was the prerogative of the court, and that it did not provide a reasonable explanation of how its conclusions were reached. The referee said he would recommend that the affidavit not be stricken, but that it would be considered for the worth of its statements.

Next, the parties argued the summary judgment motions.

Save Audubon Park’s attorney argued that the law clearly prohibited restaurants in parks, except in zoos, and that what might be permissible in a clubhouse somewhere else would be illegal in a clubhouse located in a park. He pointed out that Audubon had admitted that the kitchen and dining areas in the proposed clubhouse met the first half of the CZO’s definition of a restaurant: an establishment that sold food and drink. He argued that the second half of that definition, which requires that 50% of the revenues of the "establishment" come from food, exclusive of alcoholic beverages, required to court to compare the income from food to that from alcoholic beverages, not the income from food to the green fees and cart rental. He also noted that Audubon itself had referred to the "full service dining facilities" in the clubhouse in its brief, indicating that the structure clearly included a restaurant.

Audubon’s attorney argued that restaurants were customary in golf clubhouses. He also argued that the court should not consider the fact that commercial activities might interfere with walkers, joggers and birdwatchers, noting that even denser uses, such as football stadiums, were allowed in park districts.

The last motion to be considered was Audubon’s motion to increase the bond for costs from $1,000 to $5,000. The referee, noting that his fees were over $8,000, said he would recommend that it be increased to $10,000.