Little Lake Hill House Concerts vs. City of Raleigh
It's been a long, wonderful, but recently a rocky road. We received our certified letter on the 25th of February at which time we had 30 days to appeal to Superior Court. We decided that the time, expense and projected outcome of this process (which would rule with the city of Raleigh and tell us to go back to the Board of Adjustments!) The minutes of our portion of the meeting take 27 pages. Instead of reading the entire transcript I have highlighted some key points. So, Little Lake Hill House Concerts was declared to be a "Prima Facie Business", perhaps the only one in
In essence, the Board of Adjustments voted to allow the citizens of Raleigh to hold three 24 hour events in our homes at which time we can hold for profit endeavors, create parking nightmares for neighborhoods, Lalapaloozas in our homes (they last three days!) 24 hour concerts---people come and go at different hours to hear different artists---the neighbors will love it!!
We seriously doubt that this is what the City of Raleigh wants to do. We also question whether the City of Raleigh really opposes opening up our homes to the arts. We truly hope that the City will consider a change in the code which will allow citizens to share them homes for the benefit of the community more than three times per calendar year. We have not decided what we will do in the future. Please check in from time to time to see how time, concerned people and luck will change this.
Fulcher's statement from the City Inspections Department
Mitch Hazouri's opposition
Attorney Jack Nichol's Arguments
Walt Fulcher's statement from the City Inspections Department
A-91-09 – 12/14/09
DECISION: Deny the appeal and to uphold the City’s Interpretation of the Ordinance indicating this is a prima facia business which is therefore prohibited by the Code.
WHEREAS, Elizabeth A. & R. William Padgett, Jr., property owners, appeal for an interpretation of the Zoning Ordinance and/or an appeal from an action of the Zoning Enforcement Officer with regard to Code Sections: 1) 10-2017 with regard to whether home concerts meet the definition of a business and 10-2072 regarding the definitions of “Temporary Events”, and whether a Special Use Permit is required regarding a home occupation permit to teach less than 5 students guitar lessons, in the Residential-4 zoning district at 1213 Dixie Trail.
Zoning Enforcement Administrator Walt Fulcher (sworn) explained an inquiry was made to his office about selling tickets for a home concert at another residence within the City of Raleigh. During that call, it was stated a website is maintained by the property owner which advertises house concerts, guitar lessons and the music label all operating at 1213 Dixie Trail. He stated he has copies of the web page and other information to submit for the record. Zoning Enforcement Administrator Fulcher presented a handout which indicates the number of shows and photographs which a number of people who have attended which has been between 50 to over 100 per concert (exhibit 1). He presented a handout which identifies individual performances and asks for donations (exhibit 2). Mr. Fulcher also presented a handout containing information about the recording studio and purchasing cds (exhibit 3).
Mr. Fulcher stated the property owners have had 87 house concerts from 2000-2009. Eight shows have taken place during 2009. Many of the shows reference donations of $15 or more to support the artist as well as requiring reservations in having sold out shows. The property owners were cited for a prohibited use in a residential district. Prima facia business as interpreted by staff is an activity that gives the appearance of a business. Prima facia is not defined in the code but is a Latin term meaning “at first look” or “on it face”. Blacks Law Dictionary definition is “at first site, on first appearance but subject to further evidence or information. Sufficient to establish a fact or raise a presumption unless disapproved or rebutted.” Mr. Fulcher pointed out concerts being held out of a home is not consistent with the character of a residential neighborhood. It creates a place of assembly without meeting building or fire code requirements which poses safety concerns. A more appropriate location to hold the concerts would be at a church, clubhouse, civic club or other commercial location approved for assemblies and a location which can provide off-street parking. The zoning code does allow a temporary event for three one day events per calendar year without having to meet the conditional use requirement such as the uses permitted within the zoning district, off-street parking, limiting the event to 11:00 p.m., screening outdoor lighting, etc. Mr. Fulcher pointed out Raleigh City Code Section 10-2072 conditional uses for a home occupation in regard to the recording studio states “only hand-made items, food stuff and crafts made in the home may be offered for sale on the premises. No other goods, products or commodities brought for the express purpose of resale shall be sold at retail or wholesale on the premises nor shall such goods or products be stored or displayed on the premises.”
Mr. Fulcher stated in regards to the guitar lessons #10 of the Code states “no specialty services such as but not limited to dance instruction, crafts, or music lessons shall be provided for a group larger than five persons. Ms. Padgett has been issued a home occupation permit and complies with that code requirement.
Mr. Fulcher stated in summary:
House concerts are prohibited in R-4 zoning districts based on being a prima facia business and the code does not specifically allow house concerts
The concerts are a way to advertising market Ms. Padgett’s business of teaching guitar and the music label
The temporary event provision allows 3 one day concerts per calendar year without complying with code requirements
Based on the size and frequency of the events the use is not compatible with a single-family neighborhood
The schedule of permitted land use chart in the code requires other locations that charge a fee for music concerts such as night clubs and concert halls to be in commercial zoning districts
To change the number of temporary events allowed would require a code change which is not under the authority of the Board of Adjustment
Mr. Fulcher asked the Board to uphold his interpretation of the code section of a house concert being a prima facia business. If the interpretation is reversed, it would allow any number of concerts to be held from residential zoning districts throughout the entire city not just this location.
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Bett Padgett, 1213 Dixie Trail, (sworn) presented a check for $15.00 pointing out she did not bring her sign back. She expressed appreciation to the Board for hearing her appeal and pointed out since this issue has come about there has been an outpouring of support from artists and others asking that the Board not declare the house concerts a prima facia business. She stated she has more than 65 letters from artists, neighbors and friends and a petition signed by some 200 people asking that the Board find that the house concerts are not a business. She asked those in the audience supporting her request to stand and approximately 35 people stood.
Ms. Padgett presented the petitions indicating each name is notarized (Exhibit 4). She presented a packet of notarized letters of support (Exhibit 5). She pointed out she had talked with contiguous neighbors and they have no problem with the house concerts and are in full support of her request.
Ms. Padgett pointed out one of the notarized letters is from Scott Ainslie and quoted the following paragraph.
For members of this very human community of musicians and listeners, each song or instrumental pieces comes as a part of our cultural legacy and literacy.
Rather than “entertainers” per se, the musicians and performers who play these intimate concerts are more like Griots, the oral historians of West African villages. They hold up the history and the current state of the community in stories and songs for us to witness, to affirm, or to question. They present us with a part of our living history (and they do so at volume levels that don’t even make it onto the porch). These performances offer us the opportunity to understand and to become more fully who we are as individuals and as members of our communities.
Ms. Padgett read the following paragraphs from a letter from Ellis Hankins, 1201 Little Lake Hill Drive.
We have never heard music or noise during the concert at the Padgett residence. In contrast, many times we have heard music and noise from loud parties at a home on Hymettus Court behind our home. Also on many Sunday mornings we have heard amplified recorded church bell music from the church. I do not believe the concerts at the Padgett residence to be disruptive or incompatible with our residential neighborhood in any way. I believe the advantages of the concerts out weigh any disadvantages. The focus should be on enforcement of ordinance provisions about noise, parking and traffic to avoid disturbances which is not a problem here. I support the interpretation of the ordinance provisions to allow the occasional concerts to continue.
Ms. Padgett presented a copy of her business license with Chairman McBennett pointing out he thought that issue had been addressed. Questions about the differences in a home occupation and a privilege license took place with Attorney Silverstein explaining the differences. Ms. Padgett questioned exactly what a privilege license allows her to do.
I have taught music, primarily guitar for more than 30 years in Raleigh. I’ve never counted how many students I’ve taught, but estimate around 6,000. I also am a singer songerwriter and have released 5 CDs in the last 12 years. Several of my students are recording and touring artists who are making a good name for themselves in the music industry. When we bought out present house which is much larger than what 2 people need, my first thought was to share it with my students, friends & neighbors for intimate concerts for artists who can open their mastery of music & the arts to those that want to learn and experience music. It was also an opportunity to share our beautiful home on three acres of land and is convenient to the entire Triangle. It would give opportunity for students and those who appreciate music to learn more about different styles of music and perhaps further their own musical talents. The artists who perform here are also educators. I have studied with many myself.
Here is a copy of a business license I’ve maintained for Bett Padgett’s Guitar Studio, licensed for my home at 1213 Dixie Trail. I have carried this for 30 years. I thought the purpose of this license was so that I could teach, record have recitals and bring artists to my home for demonstrations. I recently learned I needed a home occupation permit (one time fee only) to teach which I immediately applied for and received. Why then do I pay $50/year for a business license?
We had our first concert in July, 2000. We host ~ 9 shows per year. We invite friends and open up our entire house and grounds --- we take the risk of theft and damage. We ask people to RSVP and to make a donation to the artists for their expenses. We provide refreshments to the audience, and also share our meals and home with the artists who are or become close friends. We make no money from this endeavor; we actually spend money to have them. How many businesses do you know that operate like that? People come and bring food to share, like a neighborhood potluck. If they chose, they can wear name tags stating their hobby so that making conservation & and new friends (building community) is easy. People assemble peacefully, and leave peacefully and quietly. We have had no complaints from any of our neighbors about the 89 shows we have had, many of whom enjoy the concerts and are glad they live close by. Our house is somewhat isolated as we have 3 acres of land and live next to Hymettus Woods, which has 4 acres of land. There is a church across the street and we have 500 feet road frontage and lots of parking on the premises.
These gatherings are also a place where people discuss current issues and voice concerns. There is a lot more than just music that happens here. There is a chemistry between the people and the artist, but also a fellowship between the people who come. These are very special and unique events. (I invite you to attend one and see for yourself!) Many of our friends have come to nearly every show and the volume of letters of support and petitions signed and notarized may give you an indication that many citizens agree that this is not a business.
At a recent concert, Amy White sang a song she had written about disillusionment with the government, but wanting to put a hopeful line sang:
“Sometimes one voice rises above the crowd
Sometimes the crowd makes one voice
But the people who are paid to listen
Turn deaf ears to all but their own ambition
And leave us all….dying on the vine”
We are questioning why this is interpreted as a business. In a meeting we had on October 29th at 9 AM with Chief of Inspections, Larry Strickland, and staff members Walt Fulcher and inspector Martha Lobo as well as our Councilor Thomas Crowder, we learned that it is because we have more than 3 of these in a calendar year. We also learned that any type of gathering is limited to 3 per year and the number of people in the gathering or the collection of money was not an issue, it is solely on the number ‘3’. It was again explained; 3 gatherings applied to Cub Scouts, Garden Club, Book Club, Bible Studies, choral ensemble practices, political and charitable fundraisers even birthday parties. These were not our words but interpretation from inspections. So, we have asked for an interpretation of this zoning law. If we are in violation of the code, so are all of these mentioned above?
It’s important these days to feel like we are all part of a vibrant and strong society that supports citizens and the arts. Freedom is the essence of our country’s strength and the freedom to have friends in my home for discussions and music is my constitutional right.
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Laurie's Support Statement:
Laura Bishop (sworn) 121 Holly Park, Holly Springs, NC, pointed out she is as mother, educator, writer and a friend of the Padgetts. She stated she has taken music lessons from Ms. Padgett. She has attended some of the house concerts. She pointed out the Padgett house is not like the RBC Center and does not provide that type venue. It is a very intimate setting for a concert. She stated she had done concerts at the house. She pointed out the concerts help educate and inspire people and help unity a community. She stated it is amazing to sit and listen to the talented musicians and have performers so close. Ms. Bishop pointed out she had attended Bible studies that have been wilder than the house concerts. She talked about the concerts being something of beauty, particularly in times of recession when people cannot afford high priced concert tickets. It is great to be able to sit and listen to music. She pointed out the Padgetts do not make any money off of the events and they are a lot of work. She and her husband have helped clean up, move chairs, etc. to set up and clean up after concerts. She stated she feels the community is very fortunate to have someone do this type activity and to have the experience of being a student of Ms. Padgett and attend her house concerts.
Bill's Statement (partial):
Bill Padgett (sworn) 1213 Dixie Trail, presented a packet of material (Exhibit 5) which included his prepared statement and various emails and supporting documents. Mr. Padgett expressed appreciation for the opportunity to appeal the ruling of the Inspections Department that Bett’s approximately 9 house concerts each year are an alleged prima facia business. He stated he has often told his wife during the process of citation that it is hard to imagine why anyone with a clear conscience could find cause to turn her in for having wonderful musical evenings and opening their house to the community. The energy, time and resources she puts into organizing these concerts is amazing and it is all to benefit the cultural and appreciation of art. He stated in the past 10 years that Little Lake Hill she has brought people together in their home to create an extraordinary environment of the incredible music, education and appreciation for the arts and artists. Mr. Padgett quoted the following definition which he stated is from a standard dictionary “A business is an industrial, commercial or professional operation involved with the purchase and sale of goods and services as an attempt to make a profit.” He stated they do not attempt to make nor ever made a profit in their home, instead they provide a place for something far more wonderful and valuable. They create the opportunity to extend ones family into the community, offer the opportunity for one to love and appreciate the arts and provide a place where knowledge and education can flourish. These treasures, like her love of the arts are not for sale, they are her gift to Raleigh. He stated we must be careful with our meaning of terms – “love” from a giving heart is divined; “love” sold on the street is called prostitution. He stated that Bett does not sell her time, her home but freely gives her passion to bring love and joy to her students, friends and community. She brings without profit some of the most wonderful music in the world to create in their home an evening that is inspiring, creative and renews of the spirit. He stated we need to be careful today because we can destroy something exceptional in an instance – something wonderful that took decades to build. Mr. Padgett stated their home is used about three hours for a few evenings each year which allows Ms. Padgett to introduce music from the best artists to her students current and past, families and just ordinary people. He stated this involves some 27 hours per year and surely this would not constitute a business.
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Mitch Hazouri's opposition
Any other questions? Is there anyone else to speak on behalf of the applicant and Mr. Nichols if he had anything to add that is new? Do you swear the testimony you are about to give is the truth, the whole truth and nothing but the truth so help you God?
Mitchel Hazouri: Yes I do.
Chairman McBennett: State your name and address.
Mitchel Hazouri: I own Mitch’s Tavern in Raleigh and I have a home at 3806 Alamance Drive and I have known the Padgetts 40 years, very close to the time I came to Raleigh and I want to say that Bett is wonderful musician and judging from the people I know that support her they are terrific people and I like to cut to the quick, this is not about Bible study or cub scout, it’s about a lot of being going and listening to entertainers who have paid and may be paying money, consuming alcohol and collectively those activities together are the most heavily regulated by local government and taken very seriously and I don’t really think that this, well before I get to that, ah…we are looking at the State Alcohol Law Enforcement has an interest in these types of activities, Wake County Alcohol Control Board, Wake County Health Department, Building Department, fire inspectors, these are people I have to deal with and I deal with more of them ah restaurant facilities have to be up to code and in looking at an activity that for what I gather has done very admirably at the Padgetts and they have a lot of supporters, a lot of wonderful musicians but what this is about is opening up the gate to sanction other house concerts and what happened nationally cities are allowed to regulate these activities...
Chairman McBennett: Let me clarify one thing, I ask if anyone speaking in favor of the application, are you opposed?
Mitchel Hazouri: No, No, No, I don’t, I don’t, ah I would like if the Padgetts eventually are able to carry out these concerts I think that we ought to let the regulatory agencies and let the State legislature deal with them. I don’t think this Board ought to open up this flood gate for these types of things because you have to ask yourself why cities are allowed to regulate these types of behavior because associated with these type of behavior a lot of drug use, over consumption of alcohol, consumption by under aged people and even though the Padgetts again probably run a very admirable place and run admirable concerts and I know of people that go there and they enjoy, the musicians, the music is wonderful. I am a professional in this kind of business and ah. . I’m just here speaking as a professional to tell you that I can’t, if I want to have a concert in my place this weekend, I can’t have one because I’m not allowed to have live entertainment. The City thinks that it is such that activities associated with them are so bad that ah. . . in my neighborhood if I have them I’m going to generate all kinds of other associated activities that are bad for the neighborhood. So, while you might want to go ahead and grant the Padgetts this request and I don’t really think that you going to be able to that, and if you say okay you can go ahead and do that, someone may complain to ALE or complain to the Internal Revenue Service, there are issues of liability and things like that, may be their homeowners insurance might say “hey they are carrying out concerts here, can we do this”, but that’s where we not for you to decide but I don’t think you can actually sanction that they can do these things, I’m saying these, they may be outside of the law in general, not just on zoning or on other issues but I don’t really know, I have never attended one, I know a lot of people do go there. But what I am saying is that this is not Bible study I think it’s just a generous to talk about playing bridge and people won’t be allowed to do that. This is...people coming, frequently strangers, they go there, they pay or maybe they don’t pay and they attend these meetings, are their restrooms facilities adequate or is the building safe, maybe yes, maybe no, I have to make sure that mine are and what I’m saying here essentially is that I don’t think you ought to go there I think you should unanimously reject this request but the regulatory agencies, the Legislature and the City agencies deal with these things, house concerts, they are not the only ones doing them, they are becoming a problem here.
Chairman McBennett: We will mark you down as in opposition then.
Mitchel Hazouri: Excuse me?
Chairman McBennett: We will mark you down as being opposed?
Mitchel Hazouri: Yes, and ah I appreciate your time. Thank you.
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Attorney Jack Nichol's Arguments
Jack Nichols (sworn) 2501 Kenmore Circle, stated he is an attorney representing the Padgetts and would like to ask Mr. Fulcher a few questions. He questioned if Mr. Fulcher had evidence of the sale of tickets and fees relating to the house concerts with Mr. Fulcher stating only the information on the website about donations, he does not have any direct knowledge about fees or sale of tickets other than that. Attorney Nichols questioned if there is an ambiguity in the code it is his understanding the normal approach is to use Blacks Law Dictionary. Mr. Fulcher pointed out if the code doesn’t have a definition of a legal term they can refer to Blacks Law Dictionary. Mr. Nichols read the definition of “business” from Blacks Law Dictionary and asked if Mr. Fulcher took that definition into consideration in making his interpretation with Mr. Fulcher indicating he did not, he based his interpretation on the prima facia definition in the code.
Attorney Nichols pointed out through a public records request they got information that there was an anonymous complaint received by someone in the Inspections Department named Barbara. Attorney Nichols questioned if Mr. Fulcher knows who made the complaint and whether the complainant is a city employee with Mr. Fulcher indicating he does not know who made the complaint.
Mr. Coble questioned if Mr. Fulcher could explain the criteria he used in determining that the house concerts constitute a prima facia business under the code. Zoning Enforcement Administrator Fulcher indicated he thought they drew a direct connection with the activities which gives the appearance of a business. He stated when you look at the requirements in the code and the prohibited use section, he thinks they were interpreting prima facia business is if it gives the appearance of a business not necessarily if it collects fees, it is a business, it does not necessarily relate to collection of fees, but in this case, we have been told that donations are accepted, and you look at the connection of the property owner’s business of providing guitar lessons and recording studio is a direct connection between those uses and pointed out musical concerts are normally conducted in commercial areas.
Attorney Nichols: This is a situation that involves an interpretation of the City Code. If you look at the application we have submitted we requested an application of a provision of the City Code with respect to R-4 to talk about whether or not the home concerts meet the definition of prima facia business. He also asked the board to look at the interpretation of what constitutes a temporary event. I think that the testimony or the evidence before you shows that this is not a business. The City Code does specifically say that whenever there are questions as to the interpretation Blacks Law Dictionary will be followed as are other dictionaries and that we have included that reference by the way in our application. But here, there is no sale, no fee, and no profit. This cannot be under any set of terms of the definition that we presented you a business. The homeowners request donations, if you don’t make a donation you are not excluded from the event. With respect to the sale of the CD, the owners, Ms. Padgett does not sell the CD, the artists sell them. If you will look through the materials you will see why a lot of these artists come from throughout the world particularly Ireland and some of the places in Europe and England, they have expenses, the purpose of those donations is to defray the cost of their of their expenses and not to compensate them as if they were to show up at Cat’s Cradle or some of those other places, so again, it’s not a business. If you look through the definition of what a prima facia business is, you begin to see that this is not anything approaching that. There are donations, there is no fee, the concert sometimes relate to her music instruction but not always. It’s been implied that the whole purpose of these concerts is to promote Ms. Padgett’s business but that is not correct. We submit that the proposed interpretation by the zoning administrator is incorrect. Also, Mr. & Mrs. Padgett were told during the application process and during their testimony today to you that “money was not an issue.” Well, if it is a business activity that’s by definition what makes money the issue and the other thing which Mr. Padgett implied to you is you get on a slippery slope when you begin to talk about the types of temporary events that might be included. The City Code allows a temporary event with a 20 day occurrence which is for the State Fair, so ah. . . well does that three-day event apply to Bible study meetings and Girl Scout and Cub Scout meetings, which by the way, collects dues every week that those groups meet in the home and the Indian Princesses and Indian Guide meetings, book clubs and every thing else, so what’s happened is the original information that was presented to my clients during this application process, the City has backed off of the basis for it until what you have here today and Mr. Padgett pointed out the obvious situation involving political applications which pretty much gets us very quickly into the First Amendment issue. What happens when you have precinct meetings and you take up precinct dues, what happens when you have political fund raisers and you collect dues, are you limited to three events a year? So, what we would submit is that this is not a business and if the Board should interpret and apply this to apply to only those temporary events where money is charged for the event and the interpretation should exclude temporary events where the host accepts donations from political candidates and activities, or accept donations to IRS approved non profit, by the way this proposed interpretation I included at the very end of our application but it will also say that if a Board decides it’s going to interpret the number of events if you could have one event for 24 hours, why can’t the Padgett’s have 8 events for 3 hours, it’s still 24 hours in the year, I mean at some point in time if they are going to enforce this, you need to have some specificity to keep it from being arbitrarily and inappropriately apply and we thank you for your time and attention and I will be glad to respond to any questions.
Chairman McBennett: Question, you were just saying that you would differentiate between types of events?
Attorney Nichols: Yes Sir.
Chairman McBennett: Explain that further.
Attorney Nichols: Sure, I think that the purpose in my mind, the clear propose of the code is to regulate temporary events particularly those who are collecting money so you can appropriately interpret the code so that somebody is collecting money for those events, or their donations for an IRS tax free status, that way, you are making sure that it really is a proper charitable event so you can begin to have at least some specificity and not subjectivity every time one of these questions comes up.
Mr. Coble: One question that I have, it seems that at one point of disagreement between you and your client and the City and Mr. Fulcher is as it relates to use of the word business in the code provision we are focusing on and as I heard Mr. Fulcher as I understood him anyway, he was saying he may well agree with you as to your Blacks Law definition of business but his interpretation and the City’s interpretation is that the word “Prima Facia” changes the meaning and expands it to include things that give it an appearance of a business and I guess my question to you is do you disagree with that reading of “Prima Facia business” or do you disagree that these concerts amount to the appearance of the business or both.
Attorney Nichols: Absolutely. Prima facia means in the first case, so what it does is create a rebuttable presumption in any quasi judicial proceeding including this one. We think we submitted evidence today to rebut that presumption. Mr. Fulcher admitted that part of the basis for his prima facia determination was the sale of tickets, the testimony you’ve heard today indicates there are no tickets that are sold, there are no fees that are collected; it’s just donations so what we would submit to the Board is we have rebutted that presumption and we have offered evidence to show that the initial basis that he offered you was erroneous. The second with respect to the interpretation if you will look at zoning code Section 10-2002 regarding definitions, it says, “all the words and terms used in Part 10 Chapters 1 and 2 have as their commonly accepted and ordinary meaning and then it goes on to say for a legal term, definition, or legal definitions or if not a legal dictionary, definition in legal dictionary will be used. That is exactly what we’ve done. We have used the definition of business from Black’s Law Dictionary and the evidence that you have works for Mr. Fulcher and from my clients show that this is not a profit making activity and it’s not a business.
Mr. Coble: Of the other point that you raised, I’ve to just hear your response of those as well. The other factors that he relied upon in addition to fees was with the connection of the concerts to what I assume you would agree to some business of guitar lessons and, I just haven’t decided and that, thirdly concerts ordinarily take place in commercial venues. Could you respond to those two.
Attorney Nichols: Sure, but that is boot strapping on his assumption that it’s a business. I think there is not evidence before you, Ms. Padgett can testify to that fact that I discussed this with her. Some of these concerts do relate to her students some of them do not. It’s not like these concerts are a requirement that is imposed on them as a portion of the lessons that she teaches. If that were true then I think Mr. Fulcher would have a point. If there were some condition that they had to fulfill as part of their instruction that they participate in these concerts. But that’s not true, I think what happens is Mrs. Padgett is an artist and she is well known in this area of music and some times it’s her students and sometimes it’s these performers and it’s a difference between these two and to show that it is a basis for marketing is to say that just because I am a lawyer anybody that asks me for legal advice I’m marketing though I wish that were true but I sure don’t get a lot of business that way. Ah, so I just think it proposes too much.
Mr. Van De Carr: I got two questions, Mr. Nichols, one is about business and one is about temporary events, I’m sorry if I’m beating a dead horse here. What would you say about an argument that the code does not prohibit businesses in fact, it only prohibits prima facia businesses, it doesn’t matter if it is really a business, but if it looks like a business and smells like a business then whatever it is, that’s prohibited.
Attorney Nichols: Because what my response is, the reason you have a prima facia standard is this group is a quasi judicial group you sent as sort of like a people’s court and so when you have that initial prima facia offer of proof then the question that you need to determine in this proceeding and all future proceedings is there enough evidence that is presented to support that prima facia business. In law, you cannot have sort of a prima facia situation, have other evidence and let that stand alone.
Mr. Van De Carr: So it’s your position that the code really only prohibits real businesses, it doesn’t prohibit things that just look like businesses?
Attorney Nichols: yes sir.
Mr. Van De Carr: Okay that’s your position on that, okay.
Attorney Nichols: I do think it is the Zoning Administrator’s burden to bring those cases to the board and code allows him to make that prima facia initial proposal the same way as a prosecutor in a criminal case has to make initial burden of proof and the defense is allowed to offer evidence to show that initial offer of proof is insufficient.
Mr. Van De Carr: On the temporary event brought ah....is it your position that more than three temporary events are prohibited by the code?
Attorney Nichols: I’m not sure what this provision of the code says because it’s pretty murky to me. First of all, it presupposes that it is a business, I think, the way it reads, so you have to get to second base and say it is a business to even talk about temporary event. But let’s assume for purposes of argument that that is where you are and if you look at the code it says, “a temporary event lasting one day shall be permitted on premise without complying with the conditions 1 thru 8 which are listed in a laundry list elsewhere provided that no more than three temporary events in any one calendar year shall be permitted on that premise. In all temporary events lasting more than one day or occurring more than 3 times on any premise in any one calendar year shall meet the following and then there is another laundry list. Well that’s the point that I am making. Ah, if collect donations at a cub scout meeting, which I have done in my home, is that covered, if you collect money for your book club or your bridge club or your precinct meeting, is that covered? Are those temporary events? Can you only have three a year, if I were pass the hat it by Thanksgiving or Christmas dinner to pay for the cost of turkey, would that be covered? I mean yeah, at some point in time, some of these things simply don’t make sense.
Mr. Shear: The slippery slope argument.
Attorney Nichols: yes sir.
Mr. Shear: Okay.
Mr. Van De Carr: And I don’t have the code in front of me, I don’t see the word business at all when temporary event is discussed in the application for our review. It may be in the code but you are saying that you think that is inherently.
Attorney Nichols: Implicit yes sir, it is part of the enforcement.
Mr. Fulcher: The temporary event cited to allow them to hold three events without complying with section of the code.
Mr. Van De Carr: That is why it is really separate in my mind.
Mr. Shear: Mr. Nichols, the people who ultimately receive the monies that are donated or they IRS approved nonprofits?
Attorney Nichols: No, it’s just the artists that come.
Mr. Shear: And where they do this as their professional and this is their income?
Attorney Nichols: I don’t know, you will have to ask Ms. Padgett that.
Mr. Shear: Are they reporting it on their income tax do you know?
Attorney Nichols: I don’t know the answer to that either. It is my understanding that the money that was collected was to pay their travel expenses to come here
Mr. Shear: Which you do not know if that is indeed true.
Attorney Nichols: Assuming that’s the case then if they are reporting on their income tax and they can show the travel expenses as an expenditure that is deductable and they can show this as revenue is an offset against that but I think you need to ask Mrs. Padgett that question.
Mr. Shear: Okay I will do that.
Mr. Nichols: I think Mr. McBennett wants to finish with me first.
Mr. Coble: Yes, I would like to ask Mr. Nichols a question both you or the City have given a parade of horribles argument that, in your view of this interpretation is upheld it may be later held to cover boy scout meetings and such, and Mr. Fulcher’s parade of horribles is if we overturn his interpretation, it would open the flood gate to people having concerts in their back yards, in their homes and in all manners in the city if you could respond to that I would . . . . .
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Conclusions of Law
1. Applicants’ home concerts constitute a use of prima facia business character that is a prohibited use in the Residential-4 Zoning District pursuant to Raleigh City Code Section 10-2017.
2. Applicants’ home concerts are temporary events that are not permitted in the Residential-4 Zoning District; therefore, pursuant to Raleigh City Code Section 10-2072, they must be limited to no more than 3 temporary events in any one calendar year.
3. The interpretation by the Zoning Enforcement Administrator that Applicants’ home concerts violate Raleigh City Code Sections 10-2017 and10-2072 is upheld.
4. Applicants are not required to obtain a special use permit for Applicant Bett Padgett to teach guitar lessons because her existing home occupation permit allows her to teach no more than 5 students at any one time.
Chairman McBennett moved that the Board overturn the City’s interpretation that it is a prima facia business. His motion was seconded by Mr. Coble for the sake of discussion. The motion was put to a vote with results as follows: Ayes – 1 (McBennett); Noes – 4 (Figgins, Jeffreys, Van De Carr, Coble). The motion failed.
Mr. Coble moved to deny the appeal and to uphold the City’s interpretation of the ordinance indicating this is a prima facia business which is therefore prohibited by the code in this zoning district. His motion was seconded by Mr. Jeffreys and put to a vote which passed 4 (Figgins, Jeffreys, Van De Carr, Coble); Noes – 1 (McBennett)
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