Reginald Commodore's vision for an Uptown ice cream shop — which he's calling Love Kreme — might seem like a perfect fit for his location at Louisiana Avenue and Constance Street.
The building, which he has owned since 2004, used to be a corner grocery many years ago and sits a block from bustling Magazine Street, close to the popular Atchafalaya Restaurant.
What could be more appropriate for a fast-gentrifying part of the city than a small shop making "hand-crafted, curated ice cream" on site, with flavors like hibiscus sorbet and honey-bacon cornbread?
But after more than two years, a lawsuit he filed against the city of New Orleans and the City Council, accusations against him of surreptitious short-term rentals and a tortuous journey through the city's zoning bureaucracy, Commodore is no closer to opening Love Kreme.
His case has exposed the complicated political processes that can mean success or failure for small-business owners in the city. The outcome may also impact the future of some multimillion-dollar developments, including one in Algiers currently before the courts.
Next month, the Louisiana 4th Circuit Court of Appeal is expected to take up Commodore's lawsuit to determine whether the council overstepped its power in rescinding its approval of a conditional-use permit allowing the ice cream shop on Commodore’s property.
Commodore, an engineer by training, decided to open Love Kreme after a successful career working at Boeing and in several other contracting jobs.
He thought that his building on Louisiana Avenue could get ample foot traffic and that an ice cream shop filled with nontraditional flavors would also offer a potential long-term business for his 9-year-old son.
Fighting City Hall
In 2017, the process of opening the shop seemed to be moving along. Commodore had architectural plans drawn up, had received initial support from some council members and was wending his way through the permitting and zoning processes armed with 300 resident signatures in support of the business.
By the start of 2018, he was nearing a council vote on a permit approval. And in May, led by newly elected Councilman Jay H. Banks, the council voted to approve the permit.
Some neighbors, however, were incensed.
John Menszer, a real estate lawyer who lives near the property, had been fighting the project. He alleged that Commodore had skirted the rules for short-term rentals at the building, despite having a permit for them.
Menszer and other neighbors have also questioned whether Commodore is really planning to serve ice cream.
“Once that permit is there, it could be any specialty restaurant — a pizza by the slice. And there is a lot of stress already on this neighborhood" from Magazine Street a block away, Menszer said.
Debby Pigman, chairwoman of the Faubourg-Delachaise Neighborhood Association, said she and several other neighbors believed Commodore's real intention was to get the business permit and then "flip" the property for a higher price, which Commodore denies.
By August, Banks was persuaded by the neighbors, and the 11 citations received by Commodore’s building, to lead a council vote rescinding the earlier preliminary approval of the permit.
At the meeting, Banks said he was torn.
"I do not see a problem having an ice cream parlor as long as it stays in the lines," said Banks. But he added that he "couldn't get past" the citations Commodore had received.
Now it was Commodore's turn to be outraged.
"Jay told me behind closed doors that the decision was political," he said. "He said to me: 'It's just not worth it to me. Your business is not as big as my business.' "
Banks declined to comment for this article.
Despite the reversal, Commodore kept pushing. He filed a lawsuit in Civil District Court, arguing that the council broke its own rules when it reversed the earlier decision. In October, Judge Nicole Sheppard, who presided over the case, agreed.
In January, the city appealed, and the result could have broader implications for how the city regulates property use.
Should the earlier ruling be affirmed, Love Kreme could be one step closer to operating. And the affirmation could also mean that a decision by the City Council to rescind a decision on an $82 million development in Algiers was wrong on the same grounds.
River Street Ventures, which is backed by Miami-based developer Philip Spiegelman, was initially designed as a 354-unit complex that would turn 3 acres along Lamarque Street in Algiers into apartments and retail areas, complete with a riverfront walkway.
A scaled-down version of that project, for 187 units, was approved without objection by the council in April 2018. But through a procedural move later that year, the newly elected council members effectively reversed their predecessors' decision.
River Street sued last spring, and lawyers familiar with the case thought it was on its way to losing against the city. But in November, after Commodore won his original case, the same judge found in favor of River Street on similar grounds.
"Commodore clarified for her what the issues were, and that made it easier to make a decision in favor of River Street," said a lawyer familiar with the cases.
The city last week also appealed the River Street Ventures case.
Lawyers for both plaintiffs declined to speak on the record, and the city's spokeswoman, LaTonya Norton, said the City Attorney's Office will not comment on the case while litigation is pending.
John Lovett, a professor at Loyola University and a real estate law expert, said the Love Kreme case could clarify the limits of the city’s power to change its mind on business permits.
"This is a hard case," said Lovett, who said that zoning laws are a bit murky in this area. "Property owners who obtain what looks like a preliminary approval ... could understandably think that the council’s subsequent role in voting to approve an ordinance drafted by the City Attorney’s Office (giving the earlier vote the force of law) is purely ministerial."
But he added that the law’s wording is ambiguous enough that a higher court may find that the council indeed has a second bite at the apple.
Reversals of recent permitting decisions have been a recurring theme in recent months in and around New Orleans. Earlier this year, the New Orleans council threatened to reverse a decision to approve a new Entergy power plant in New Orleans East, before backing down amid the threat of a potential lawsuit.
In Jefferson Parish, a lawsuit filed this month by Cornerstone Chemical is challenging the reversal of permission to upgrade its controversial cyanide plant.
Cornerstone argues that an "arbitrary and capricious" reversal by the Parish Council would put at risk nearly $11 million already spent on the development. Local business groups have said letting the reversal stand would set "an anti-business precedent."
The financial stakes were much smaller for Commodore — he said he's spent nearly $50,000 so far on the case — but the issues were far more personal.
He feels betrayed by his councilman, Banks, who won the District B seat by just 130 votes in 2017.
"Jay ran on a platform of fully supporting and advocating for small neighborhood businesses," said Commodore. "He's also made statements about looking into the eyes of the youth, primarily African-American males, and seeing no hope, and that he has to create real opportunities.
“So, here I am, an African-American male with no criminal record of any sort, I'm an electrical engineer, and I can't start something as simple as an ice cream shop?”
Commodore said he has invested a considerable amount of time and resources in his project and is determined to push on. For example, he said, he attended the University of Wisconsin-Madison for ice cream-making courses, has a $24,000 ice cream machine in storage on Tchoupitoulas Street, has fought a Krispy Kreme legal challenge over the Love Kreme name and spent $8,000 on architectural plans.
Also, he said, he has been motivated to fight because of the initial reason behind the ice cream parlor. His son is on the autism spectrum and may not take a traditional route through school to a job, so Commodore wants to have a vocational business available as an option.
He didn't bring this up at any of the public meetings. "But I told Jay that privately," he said.
For his part, Banks has publicly expressed exasperation with the whole process.
"If you would've told me six months ago that ice cream would've caused this much heartburn, I would not have believed it," he said.
The appeals court is scheduled to hear arguments in Commodore’s case on May 7.