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