Bett Padgett’s house concerts ruled a business; the limit is three a year.
The Raleigh Board of Adjustment, after a nearly three-hour hearing, voted 4-1 to uphold the inspections department’s decision that Bett Padgett’s house concerts violate the city’s residential zoning. The fact that she hosts more than three concerts a year, the board decided, makes them a business even though she doesn’t sell tickets, doesn’t make any money or try to (and spends her own money on refreshments), and they’re in her living room. She does accept donations and gives the money to the artists. Freedom of assembly? Board Chair Larry McBennett thought so; but four other members decided that, even if the concerts aren’t a business, they have the appearance of being a business under the city’s code, which prohibits any “prima facia business, commercial or industrial” — whatever that means.
The Padgetts may appeal the ruling to Superior Court. They have 30 days to make that decision. City Councilor Thomas Crowder may also try to get the zoning code revised to better distinguish between concerts for profit, which should be illegal, and concerts for guests in your home, which should be allowed. After yesterday’s decision, both are illegal if you host more than three a year.
More below the fold.
The question before us, said Board of Adjustment member Charles Coble, is where to draw the line on house concerts in residential neighborhoods. Bett Padgett’s concerts, he said, fall somewhere on a continuum between inviting friends over to hear your kid play the violin, on the one hand, and on the other hand selling tickets to a series of concerts in your home that ought to be in a concert hall. The latter would clearly be a prohibited business in an R-4 zone, he added, if the hosts were seeking to make a profit.
Well, as Justice Oliver Wendell Holmes wrote,
Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. Northern Securities Co. v. United States, 193 U.S. 197, 400–401 (1904)(Holmes, J., dissenting).
The concerts that Bett (and Bill) Padgett host are of overwhelming interest because 1) they’re so terrific; 2) the Padgetts’ home is so perfect for them; and 3) the Padgetts are exceptional people with altruistic motives that can’t possibly be confused — now that the evidence in this supposedly “quasi-judicial” process is in — with trying to make a buck or scam the zoning.
But sure enough, by the time Raleigh’s Board of Adjustment was finished with the “great case” of Bett Padgett’s Little Lake Hill house concerts, they’d used distorted judgment to produce bad law.
The gist of the board’s ruling was that house concerts — all kinds — are a prohibited use in a residential zone. No matter the attendance. No matter, even, whether the artist is paid (or so member Lee Van De Carr seemed to say). No matter whether the concert is quiet or noisy, a nuisance to neighbors or something they enjoy, and no matter, either, that not only does Bett Padgett not profit from her concerts, she actually subsidizes them. What matters is how many are held in a year (three or less — not a business; four or more — business) and whether the music is any good.
Board Chair Larry McBennett, looking at the facts, argued that the Padgetts’ concerts aren’t a business and therefore aren’t subject to the prohibition on certain businesses in a residence. They have some “incidental” resemblance to a business, he said. But let’s face it — Bett Padgett and her husband Bill aren’t in this for the money, but rather as sponsors of good music in their home. Ergo, NOT a business.
But Coble, Van De Carr, Timothy Figgins and Tommy Jeffreys disagreed. We have no idea what Jeffreys’ logic was, since he said nothing during the nearly three-hour hearing. The others, however, all said in some way or other that while this might not actually be a business, it has the appearance of being a business, since money is collected for the musician(s) and a lot of people are invited. One thing that gives it the appearance of a business is that the concerts are more than occasional — the Padgetts have hosted 87 of them in just under 10 years. Another is that Bett Padgett gives guitar lessons in her home, so one might be caused to think that these concerts are held for the purpose of marketing her as a teacher. There was some talk as well of Bett having a “recording studio” in her home. This turned out to be a microphone attached to a little box hooked into her computer, however — not unlike your kid with the keyboards and the Garageband software on his Mac.
Moreover, the four in the majority decided, “prima facia business” must mean something other than simply “it’s a business on its face” (which would seem to be what it does mean); so after torturing their legal faculties for more than an hour, they collectively decided that it means some activity that either is a business or could be mistaken for one. (My summary.)
From this distorted judgment, they proceeded to make bad law.
All house concerts are now banned. But if you have three or fewer per year, they’re not banned, because they’re exempt.
The Board wrestled for a long time with the idea that, what the heck, the Padgetts could apply for a conditional-use permit to have more than three house concerts — couldn’t they? To get a conditional-use permit, they’d have to demonstrate that there’s enough parking available … not noisy … ends at 11 … type of thing. Surely, if these concerts are as quiet and well-behaved as everyone says, various board members tried to assume at various points, the Padgetts would have no trouble qualifying for a more expansive schedule — correct?
No, not correct, said Walt Fulcher, head of zoning inspections in Raleigh. To get a conditional-use permit, you have to be a permitted use in the first place. And house concerts aren’t a permitted use. (But then, why can you have three of them? Answer: If you’re looking for consistency in your city code, don’t.)
So what about your kid with the violin? Is s/he limited to three gigs a year?
What about political fundraisers? They have the appearance of a business — money changes hands; the host is probably in the political business somehow; they’re crowded sometimes. Are they subject to the three-per-year limit?
The problem is, no standards were established for distinguishing between these various activities with the appearance of a business — appearance, as Figgins said, to someone passing by — that are not actually businesses.
Whether something is a business or not is an evidentiary question, as Jack Nichols, the Padgetts’ attorney, argued. The code creates a rebuttable assumption that you are running a business until you can demonstrate by the evidence that you’re not — but all the evidence in this case was that the Padgetts are not. Fulcher, the city’s zoning inspections chief, said the concerts looked like a business to him. Fine. But he offered no evidence that they are, and the Padgetts testified very clearly that they aren’t.
As for house concerts that aren’t a business — like the Padgetts’ — the proper test in a residential neighborhood should be whether they are a nuisance due to noise, bad conduct, cars parked where they shouldn’t be, etcetera. In almost 10 years, there’s never been a single complaint against the Little Lake Hill series on that score.
Indeed, Laurie Bishop, a friend of Bett Padgett’s who was called to testify, talked about the “very intimate setting” the Padgetts’ home affords their guests. “It’s in their living room,” Bishop said. “It’s very peaceful. I’ve attended Bible studies that have been far, uh, wilder.”
I can’t say that, since I’ve never attended a Bible study, wild or otherwise.
But I can say, having been to the Padgetts’ home many times for meetings and a few times for the concerts, that their Little Lake Hill home is a unique place and the Padgetts are a most untypical couple who should’ve been treated better by the city. The anonymous complaint against them should’ve been dismissed, not brought to the Board of Adjustment so it could produce bad law.
“We need to be careful today,” Bill Padgett urged the Board, “because we can destroy something exceptional that took years to create.”
Word.
29 Comments
Just a correction: The Board decided she was a “prima facia” biz because of the admissions paid, the link to her own biz (guitar lessons, music label) and that the musicians profited from it. It was not b/c of the more than 3 events. That was the temporary event part.
— Lil Nica 15 December 2009
To Lil Nica: That’s true in part, but the fact that there were more than three events in a year helped define it as a business — up to three events, it wouldn’t have been considered one. The board attorney, John Silverstein, made it clear that the Padgetts can have up to three such concerts without coming under the code’s prohibition on commercial businesses.
— Bob Geary 15 December 2009
Again Bob, you are confusing the Temporary Event Ordinance with the biz part of their discussions. As a biz, they can’t apply for the conditional use permit that will allow them to have more than three events per year. As a biz, they can only have three.
— Lil Nica 15 December 2009
I am disappointed about the way that the BOA hearing went yesterday. It was very frustrating to me as a citizen to watch our appointed officials struggle to do their job on my behalf. In my opinion, they failed miserably. I am not a lawyer so my analysis may be fundamentally flawed, but this is how I saw the events at the BOA hearing:
There can be no disagreement that the statute(s) in question are poorly written and ambiguous. However, I believe that the BOA “missed the boat” completely. Instead of focusing on the literal meaning of each and every word in the statute, they should have been focused on the spirit of the law and what the law was intended to allow (or prohibit).
I believe that the use of the term “prima facia” in the statute is there for a good reason. It is there to give citizens and the Inspections Department to opportunity to call attention to activities that “may” be in violation of existing zoning laws. This is appropriate because in most cases, ordinary citizens do not have all of the relevant information needed to make a determination of what is an appropriate activity and what is not. Nor does the Inspections Department. Their job is to respond to complaints (legitimate or otherwise) and take appropriate action.
It is the responsibility of the BOA to dig deeper. If an activity appears “prima facia” to be a prohibited activity (a business in this case) it is the responsibility of the BOA to take “a SECOND look”! They should look beyond the Prima Facia aspects of the activity. They are in a position to take sworn testimony and determine beyond Prima Facia if the activity in question is in fact a prohibited activity. It is their responsibility to determine if the activity is in violation of the SPIRIT of the law. In this case, it was their responsibility to determine if the activity constituted a “business”. Based upon the testimony given and the formal definitions agreed to by all parties present, it was clear that the activity did NOT constitute a business. Thus, the spirit of the law had not been violated and the citation should have been overturned. It is just that simple.
Instead, the BOA became so engrossed in interpreting the specific language of the statute that they managed to convince themselves that the statute prohibits any activity that “looks like a business”, regardless of whether it is actually a business or not. If that was the intent of the law, then there really is no reason to have the BOA at all. Anyone could come forward and say “This looks like a business to me” and that would be sufficient to constitute a violation of the statute as the BOA has interpreted it… “if it looks like a business it is in violation”.
What a waste of time and resources.
— Larry Robinson 15 December 2009
But… it’s *not* a business. It bears no resemblance to a business at anything beyond a superficial level. Meetup.com encourages the exact same structure of gatherings, complete with money changing hands (meetup members often pay dues to the organizer to fund continued meetups and refreshments, etcetera), and these are often held at the same person’s house each time. Everything from house concerts to board gaming nights to the triangle Indy Film meetup would fall under this poorly written ordinance.
Bett’s house concerts have featured artists from the unknown to greats like Sloan Wainwright. She provides the variety at personal expense and considerable inconvenience, and to argue that they should stop because “they’re a business” is absurd given the latitude generally granted people who own their property. It’s a gathering, a club, a meetup, but just because she owns a microphone attached to a computer and teaches guitar lessons out of her home doesn’t show enough evidence to state that these are part of some elaborate marketing scheme to drive up her $20/hr guitar lessons.
She makes no money from this. You, the city of Raleigh, and your supporters in this argument have taken a kindness and a gem given freely to the city and its denizens and tossed it in the kitchen garbage.
Idiots…
— Jeff Heard 15 December 2009
Funny how the Board of Adjustment has the “appearance” of being a body that engages in long and thoughtful discussion and then delivers an intelligent ruling. Appearances can be deceiving, can’t they.
— Jim Luginbuhl 15 December 2009
The ruling by city of Raleigh’s Board of Adjustments is yet another example of poor governing, resulting in an absurd decision regarding “business” by people who are not in business, themselves.
Were it not for the fact that I know Bill and Bett, attend their house concerts, and play at house concerts, myself, this ruling would be laughable.
The board made a ruling on this issue by stating that it looks like a business. Well, so does a “Tupperware Party”. So does a political fund-raising event. So does a large garden party.
Should rules of law be made by looking at the face of something, or by careful examination and consideration of all the facts of a case? After all, “prima facie” or prima facia” means, “on the face of it”, or “on its first appearance”. It is clear that simply because a matter seems, or “appears” to be self-evident, that a ruling can be made by reducing it to entirely subjective interpretations that are not based on the actual facts, but are based upon what “appears” to be the truth, without considering the actual facts, or truth of the matter at hand.
Once again, government intrudes itself upon the governed, for their own interest. How? If Bett continues with her house concerts, past three in a calendar year, she will be subject to a first fine of $100. Subsequent fines are $500, for each infraction. That could wind up to be a tidy sum for the city, if Bett continues her house concert series in the manner she has in the past.
This is yet another example of poor government, prying its way into our homes, into our lives, and into our pockets. Where will it end?
We’re not talking about criminals, here. We are talking about upstanding, law-abiding citizens, gathering in a home to listen to music. This particular function has been going on for a thousand years, in one form or another. (I won’t bother with delving into the details of that history; it’s enough to simply touch upon the face of it, prima facie, as does the Raleigh Board of Adjustments).
As a performer of traditional, folk, blues, ragtime, and singer-songwriter works, I can say that the citizens of Raleigh have lost a marvelous, wonderful, series of house concerts that enrich our lives, bring us closer together as friends, as neighbors, and as community members. –For those of you who have never attended a house concert; when was the last time you attended a concert where you knew half the audience, the audience itself was highly respectful of each other and the performers, the music was stellar, the drive (or walk) home was short and easy, and left you wanting only to go back for another experience?
Well, too bad, folks. You friendly Raleigh Board of Adjustments has just ensured you’ll never have the chance. Merry Christmas.
— Doug MacKenzie 15 December 2009
To me I think the way to get the law changed to make sense (rather than to deal with giving special treatment to an individual case) is probably by sending in complaints about all of these meetings that are now theoretically illegal & flooding paperwork to create a change just because the city is too lazy to process all of the things. Because the idea of gathering people in your home seems like it should be legal unless you are breaking another law like fire hazards or noise ordinances.
Having done a lot of performances at house shows & non-traditional venues across the country, these are a few reasons I’ve seen places shut down for shows:
1) Admission fees. Admission fees instead of donation is generally considered something that needs different zoning. A place I used to play in Cleveland got shut down for what was deemed aggressive pushes for donations, they had a phrase that was something like, “If you don’t think this is worth donating money for then you should leave.”
2) Noise Ordinances. Playing loud after 10pm or 11pm or 9pm (depending on the city) is a reason to get shut down & I think it’s reasonable.
3) Selling alcohol without a permit (or giving it away for enforced donations) &/or distributing alcohol to minors. Yeah, obvious no brainer on getting shut down for that one.
4) Applause. Seriously, a venue I played in St. Paul was not allowed to have applause because they would be deemed a live music venue & then required to have two public bathrooms. It was one of the venue’s claims to fame that people would boo & hiss after songs because that isn’t technically applause. Of course once the city is really after you, your days are numbered anyway.
— Brian John Mitchell 15 December 2009
In my opinion the entire decision rests (as should the Padgett’s appeal) on the BOA members’ ignorance of the use of the term “prima facie”. Each board member that spoke seemed to be genuinely wrestling to do the right thing, so I don’t fault their efforts nor their motives.
Mr. Fulcher led off his presentation with a definition of “prima facie”, in part quoting from the law book that the city uses as a standard. Mr. Nichols, the Padgetts’ lawyer, later included instructions on this term and reiterated them during Q/A. At least 2 BOA members ignored the key points raised by the definitions, essentially concluding that “prima facia (sic) business” means “anything that might reasonably be construed as a business even if we know that construction is incorrect”.
By the way, the term is “prima facie”, not “prima facIA” as apparently misused by the ordinance and most of the people involved yesterday. Though it’s dangerous to use Wikipedia as a source, the definition there is very close to the one quoted from pertinent law dictionary by Mr. Fulcher and Mr. Nichols yesterday.
I fault the BOA’s counsel, a lawyer who appears to know his stuff, for not speaking up and pointing out that Mr. Nichols lesson on prima facie - matched by Mr. Fulcher’s own statement - was correct. “Prima facie” means “at first appearance” and is used to say “there is enough reason to bring the issue to adjudication”.
“Prima facie business” is not some special kind of business like an “energy business” or a “small business” or a “local business”. Prima facie is a phrase that should be used much like “assumed” is used. Think of it as “The zoning office concluded that LLH concerts is prima facie (on it’s face, at first glance), a business.” Mr. Fulcher’s office “assumed” that the concert series is a business, and thus brought the citation. So far so good. But (remember what happens when one “assumes”) the “assumption” is “rebuttable”, hence yesterday’s hearing. The Padgetts soundly rebutted the assumption, mostly by pointing out that they have no profit motive but also successfully refuting that the concerts in any way financially support Bette’s music teaching business.
The BOA should have overturned the citation on the grounds that although Mr. Fulcher’s assumption was within the realm of reason, it is in fact wrong - there is no business. Only Mr. McBennett got the language and the intent of the ordinance correct.
I haven’t read the ordinance itself yet, just heard it quoted many times yesterday at the hearing. Those who wrote it should also be faulted, for not predicting that well-meaning citizens serving on the BOA would probably be ill-equipped to interpret legal jargon, in this case Latin and that two of the three lawyers present would fail to provide pertinent advice on the topic when they should have.
— Jim VanKirk 15 December 2009
What a completely ridiculous excuse for performing its duties by a body of our government. I am not a lawyer, but feel forced to make two observations.
I agree completely with the earlier comment that the phrase “prima facie” is in the ordinance, not as a guide to the BOA, but for the convenience of a citizen wishing to raise a concern. That citizen is allowed to raise a concern because of the appearance of an activity without having to be expert or knowledgeable of the specifics of the law/ordninance. Then it is the responsibility of the BOA to accept this complaint, dig deeply into the actual facts of the case, and render a decision based on the facts - not merely to state that they think it might have the appearance of being a prohibited activity. The mere appearance is only what gets an issue into the BOA, NOT what is to be cited as the reason for its decision/verdict.
The second point relates more broadly to businesses in homes. Even if the concerts are deemed to be a business (a point I do not agree with), does this action from the board mean that music teachers can no longer give lessons (and make money) in their homes (at least if more than 3 times a year)?
Many earlier comments cite a number of home activities that are quite common, are clearly more of a business activity than having a concert, and yet seemingly are allowed. Not one has yet mentioned the host of people conducting business from their homes using a computer. Does this ruling jeopardize “Work at Home” if you live under the jusrisdiction of the BOA?
I yearn to see common sense and justice prevail in this case and hope that what we have now is not the end of the story.
— Derek Lindsley 15 December 2009
And Lila, I strongly disagree with your first comment. Clearly even the most adamant board members were not swayed by the bogus “admissions paid, the link to her own biz (guitar lessons, music label) and that the musicians profit(s)” assertions. These issues were explored at length and not a member ended up leaning on one of them to justify motions or votes.
BOA (except the chair) rather said, in effect, “I now see it is not a business in the money-making sense we all think businesses are, but it qualifies for this other thing called a prima facie business”. They said it was an activity that people might at first glance wonder if it was a business, and even though we know it isn’t we have to shut it down. And not knowing their own limits of knowledge, they used this misinterpretation to justify upholding the citation.
— Jim VanKirk 15 December 2009
I certainly am glad that I live outside Raleigh’s city limits …
— Ken Spencer 15 December 2009
It is a great loss on so many levels to know that gathering peacefully in our community to share music, or any kind of fellowship, is not welcomed on a regular basis. Music at Bill and Betts has been, literally since the month I moved to Raleigh, a source of enjoyment, friendship and helped me to build a sense of belonging in our neighborhood. Surely, it cannot be the intent (nor the spirit) of the law to take away this right?
— Louise Griffin 15 December 2009
The members of the Raleigh Board of Adjustment who voted for this = Morons. I call FAIL!
— Neal Emerald 15 December 2009
When art becomes illegal, then those who vote it so, no longer represent the people. Follow the money and you will see who voted the way they do.
— dennis piper 16 December 2009
Boy, am I glad I only had 2 kids get married in the same year. I wouldn’t want to be accused of being a ‘prima facie” business. Like the Padgett’s, I can assure you I didn’t make any money from the endeavor. However, if I had thought of it, I might have asked for donations!
Our community has lost a treasured asset. As a neighbor of the Padgett’s and a regular attendee of the LLH house concerts, I am amazed by the ruling of the Board of Adjustments; all due to the lack of understanding of the definition of ‘prima facie’? Jeez, folks, if you don’t understand it, you sure have no business interpreting it! Haven’t you ever heard of a dictionary? Look it up!
Thanks, Board of Adjustments, and a Merry *&^%!# Christmas to you, too! You should be ashamed. Watch out, Cub Scouts and brige players, they’re after you next.
— Michael Huslage 16 December 2009
What an embarrassment for the Raleigh City Government to have such a law on the books. City government needs to QUICKLY do what is sensible, fair and just. Accept the challenge to fix this obviously broken city law and protect not only Bett and Bill Padgett, but all of our good Raleigh citizens from this senseless harassment.
— Linda Minetree 16 December 2009
People need to call city council members and mayor Meeker immediately to complain about this moronic decision. Zoning people seem to routinely make decisions that work to destroy a vibrant city life; it’s almost as if it’s in their blood. The shutdown of 1304Bikes.org’s free bike repair co-op in Raleigh earlier this year is another example. This needs to be - and can be - overturned with citizen pressure. Step up and make two calls tomorrow to the mayor and your council rep.
— Todd Morman 16 December 2009
I am trying to get the actual transcript from the BOA hearing so I can quote directly what the arguments the city used to justify their case that our House Concerts were a business. Tomorrow I hope to have further information and I will try to post something.
What I asked for and received today was the final motion that passed at the Board of Adjustment meeting held December 14, 2009.
The motion was 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.”
It might be good to reflect on the NC motto: Esse quam videri a Latin phrase meaning “To be, rather than to seem to be.” Let me rephrase: To find truth, rather than ‘prima facie’.
I have no doubt that the BOA interpretation is erroneous. But please weigh in on my interpretation below and help me to expand my understanding because I feel that I have surely missed something that helped get us to this conclusion and I would like to find the best path to reverse it.
We become a ‘prima facie business’ the moment someone states (thinks) that it looks like a business to them … If someone thinks you look ‘at first glance’ like a business (even an anonymous person) then you are ‘prima facie business’ at least to them and probably others.
I believe that the job of the BOA was to look deeper into the issues (see both Larry Robinson’s and Bob Geary’s post above) and decide if we were actually a business – NOT just on the surface might like one. Thus the BOA’s job was to look more deeply into house concerts … and decide if facts support the supposition that these activities constituted a business?
Our lawyer gave the BOA the definition of a business from the defining legal source (sorry I do not have that exact quote) but it centered on profit … here is another legal definition from
http://legal-dictionary.thefreedictionary.com/business business n. any activity or enterprise entered into for profit.
Of course not all businesses make profit but most try very very hard so one might extend that definition to the spirit to try to generate a profit.
So why a BOA? Well city code is far from perfect and the BOA exists to help interpret what the code meant (the spirit of the law) and how the code (that spirit) applies to a particular case.
From the Raleigh Code: In residential areas … Prohibited uses include:
“Any use of prima facia business, commercial, or industrial character not otherwise specifically allowed in the District”
So we might expect the first task of the BOA is to decide whether this to be taken literally or interpreted in the ‘spirit’ of the law.
So the first question they must answer is when the code was written what was the appropriate interpretation for this code …
1) did our city fathers really mean that if you looked like a business (prima facie business) whether you were a business or not doesn’t matter you are prohibited.
2) Or did they mean that if on first glance you appear to be a business (prima facie & thus the citation) but on closer examination the facts show that you actually are not a business and thus the function would be permitted.
If you chose 1) like four of the five members of the board of adjustments, the case was over before we walked into the room. There is no question that there are aspects about a house concert (meet-up, charity fundraiser, boy scout meeting, political fund raiser, etc.) that are like a business i.e. ‘prima facie’. Folks gather, money may (or may not) be exchanged, they listen to music/politician or not, etc. The actual facts of what constitutes a ‘business’ does not matter since if it looks like a business and that is enough.
Example … If you look like a senior citizen you get free coffee at MacDonald’s – on first glance you may ‘appear’ too young to be a senior citizen – that’s it, you don’t get free coffee.
If you chose 2) then while you appear to be a prima facie business, this is where you start and now with the power of testimony under oath you ask question to discover the truth. Are these house concerts generating profits for the Padgett’s, etc.? Are the charges that the City has brought forward true, false or ambiguous.
Example … While you look like you are too young to be a senior citizen, upon examining your driving license & picture ID, one may indeed have the information that you are old enough & thus you get that coffee free.
Now after the two hours of pretty confusing discussion around the BOA table, I need to see the transcript (I hope that it is word for word) to quote accurately. However the real issues of substance that make a business were not really debated thus there was no final finding of fact – just finding of ‘prima facie’. Thus if someone were to ask me what would need to change for House Concerts to not be a business and thus permitted, I could not begin to explain.
By the end of the meeting they accepted the city’s charges as valid although the city gave no proof of their charges and we did rebuff each and every charge. Our rebuttal was strong enough to reject charges and they really didn’t dismiss our rebuttal but it didn’t matter – it’s not what it is but what is seems.
While I do think we proved our case that we were not a business … how does one go about proving house concerts (and many other events) are not a prima facie business?
Bill Padgett
— Bill Padgett 17 December 2009
1) Call the board members and complain. (I did) PHONE #s & ADDRESSES at: http://idek.net/nta
2) Throw your parties in defiance. You’ve got to fight. For your right. To party. Take it to the courts and make it an embarrassment. According to the members I spoke with, that’s the only real available recourse anyway.
— Jon Williams 17 December 2009
Just an addition; a friend informs me the Padgetts for years have been one of the most vocal opponents to live music on Hillsborough Street, and have been one of the main forces working to make it increasingly difficult for those businesses to get permits for live music. Is that true, Bill? If so, it doesn’t change the philosophical objections to the zoning decision, or the danger it poses to other people who do regular house shows (one of whom I know has already canceled an occasional series), but it would sure significantly dampen my enthusiasm for helping the Padgett cause.
— Todd Morman 18 December 2009
Addendum: Bill, calling someone you’ve never met at 11 at night to discuss a comment on a blog is beyond creepy. Thanks for confirming in one move all the negative things I’ve heard about you in the last few days.
— Todd Morman 18 December 2009
I am a strong advocate for all kinds of music venues on Hillsborough Street, bars & restaurants and other businesses that provide those services to the students of NCSU and St. Mary’s and Meredith College & neighbors in the surrounding community. I am also an advocate for vibrant quality of life for all neighborhoods especially those that adjoin Hillsborough Street and I believe that it is important for both to flourish and respect each other. As Chair of Raleigh’s Wade Citizen Advisory Council, an organization that represents all citizens of the area (residential, business, University) and provides a regular forum for discussion of issues relevant to our community: development, traffic, crime, zoning, safety, nuisance, etc. and provides counsel to our City Council, there have been no issues with live music on Hillsborough Street that I or the Wade CAC have been involved going back over a decade, much less opposed.
I hope that the community will work together to promote live music in all venues and settings – on Hillsborough Street, Fayetteville Street or on Any Street as well as in our homes as long as we do not diminish the quality of life for our neighbors. And I hope that this becomes the people’s cause – and NOT the Padgett’s cause and that we stay focused on the rights of assembly, free speech and pursuit of happiness – more specifically returning our rights to have live music in our homes.
Bill Padgett
PS Todd my personal apologies if I offended you by calling at 10:50. Actually we have met and have had several discussion when you lived on Wade. I had tried reaching you on several occasions this evening and just wanted to briefly talk with you before I posted back to the blog. It was not meant to offend or disrupt but I agree that I should have waited until tomorrow considering the time. I do hope we can talk in the future. Again my apologies.
Regards …
— Bill Padgett 18 December 2009
Mr. Morman - Mitch Hazouri spoke against the Padgetts at the hearing. Go to Hillsborough Street, find Mitch’s place right across from the university, buy a beer, and ask Mitch for the street’s take on this. The businesses there need the trade what with the street all torn out, and Mitch is a good conversationalist - you’ll learn a lot. And he’s usually open after 11:00.
— Alan L. 19 December 2009
The ‘Complaint’ really wasn’t a ‘Compliant’
We want to thank Raleigh Inspections for meeting with us this past Friday because we were concerned that if we were a nuisance of any type for our neighbors (the N&O reported ‘a neighbor’s complaint) we would not want to continue with our House Concerts events even though ‘3’ are now legally permitted each year. We were able to talk with the city staff person that received the initial inquiries … and she affirmed that they were only inquiries from someone wanting to also have House Concerts.
While we don’t know whether the ‘inquiries’ were for the purpose of establishing another House Concert venue ‘for their community’ YEA!! Or to bring attention that we were doing House Concerts ‘for our Community’ and should be investigated, we hope that it was to expand music by promoting the arts, the artist and enhancing the community. The staff person that received the calls (there were more than one call from this person, stated that the inquirer did not complain about our House Concerts but they wanted to ‘do their own house concerts, charge a fee, make a profit and have them every week’. The City explained they were not allowed. They noted that concerts were being held at 1213 Dixie Trail … so why couldn’t they be allowed? There are no official documents of the actual calls.
The City – AS THEY SHOULD - then looked into our House Concerts – and the information on our House Concerts was that were right there on our webpage. We are very public on the Web and hid nothing since we are fortunate that we can bring incredible artists and art into the community, take no monies for expenses or profit, and share our home for an evening of community and incredible music. They investigated our activity (as the City is supposed to do) and cited us with a possible violation of having a ‘prima facia’ (on first glance looked like we were) business in our home …. While we may not agree with the decision, the City did what it was supposed to do.
This posting is for two reasons;
1) All events like gatherings in our homes (music, parties and otherwise) should be controlled by the nuisance laws and ordinances which we have in place. When they become a nuisance, the City take proper recourse.
2) And To thank all of our neighbors that have been so supportive over the decade and in some cases have come into our home for these concerts. And to reaffirm that while we have had no complaint of any nature that our concerts have a negative impact on the community, we would immediate cease and desist having these events were they to become a nuisance and detriment.
We are weighing what our next steps should be. Your thoughts would be appreciated.
Bill & Bett
— Bill Padgett 20 December 2009
While I disagree with the outcome in this matter, it might be helpful, and only fair, to note that quasi-legal entities such as a Board of Adjustment are typically tasked with applying law as written. Unlike other entities (e.g. planning boards, planning commissions, city or town councils, boards of commissioners), BOA members might not legally be allowed the individual or collective leeway to vote something up or down due to thinking that it’s a good, or not so good, idea. In carrying our prescribed duties, BOA members sometimes cast votes that are not reflective of their personal opinion, but instead reflect specific and narrow quasi-judicial duties and voting parameters.
Because of aforementioned duties and parameters, it’s crucial that the language that a quasi-judicial board works from not be ambiguous or otherwise confusing. And speaking of confusing, I am still unclear as to the prescribed duty of this particular BOA relative to prima facie. Is the task to determine that activities that might at first glance give the appearance of a business are not in actuality a business, thus should be allowed? Or is the task to disallow even prima facie businesses despite realizing that they aren’t for-profit businesses?
Either way, a review and rewrite of pertinent sections of code might be in order. That being said, we must also remain mindful that we can’t create situations in which one can do most anything that they want in/from their home as long as they don’t personally profit from the activity. In determining what we can do in or from our homes that engages or impacts others and/or the public at large, there must always be balancing considerations such as nuisance prevention or abatement, product safety, public health and public safety.
Regarding not-for-host-profit house concerts, depending upon the legal complexities that must be factored in, a few options for Raleigh to consider might include:
1) Requiring that house concerts be hosted as private events that do not advertise to general public. (Not engaging the general public might remove some of the prima facie aspect.)
2) Raising the calendar year cap on such gatherings from 3 to 12. (I realize that this undermines the freedom of assembly argument that there should be no cap; however, for the purposes of this discussion, I’m trying to offer compromise solutions should an exemption not be feasible or practicable wrt house concerts.)
3) Requiring that those wishing to host house concerts register with the city annually and that the registration include proof of homeowner’s insurance (note that registering is not the same as having to obtain business-related permits for in-home activity). (With registered locations, inspectors and law enforcement can be better assured of legitimate and not-for-profit undertakings on the part of hosts as folks transacting or allowing illegal activity on their property aren’t likely to want to register and
put themselves on various radars.)
Bill & Bett, an open discussion blog may not be the ideal venue for keeping a solution-oriented discussion about this matter on task. To keep the conversation targeted and productive, maybe a very small group can meet to brainstorm potential solutions and next steps? I’m going off-blog at this point, so please contact me via email if you’d like to meet. Thanks.
— Sherry Johnson 20 December 2009
Folks,
Thanks to the Independent that gave us such a wonderful forum to initiate discussions on House Concerts in Raleigh and the many folks that have posted and followed the saga! A special thanks to Bob Geary & Larry Robinson who provided those precious ‘bread crumbs’ (OK intellectual insights) at the start of the journey that I and others were in time able to follow & understand why and where we are (and aren’t).
I believe that Sherry Johnson’s last posting is on target – the issues are complex and the paths ahead are many, so we are at a point where we need to bring together many different voices in the community with their experience, wisdom and ideas to envision the path where music and community and all the creative arts can flourish together in many venues.
There will be a time in the near future where this discussion will again need to emerge in an open environment to debate the solution-oriented discussions about how we go forward. But we do need to keep the conversation targeted and productive, and as Sherry suggests, it is time for a small group can meet to brainstorm potential solutions and next steps.
Bett & I are also going off-blog at this point, so please contact us (we are easy to find on the internet as the City has surely demonstrated
) if you will like to be involved.
May everyone have a wonderful and safe holiday season and again thanks to ‘Indy’ and the community for creating the first chapter in perhaps a long & and hopefully creative journey.
Bill & Bett
Little Lake Hill, Raleigh NC
— Bill Padgett 20 December 2009
In my opinion the ruling by the BOA is unconstitutional as it prohibits the activity of “peaceful assembly” guaranteed by the First Amendment, and that is clearly what happens at these house concerts. I believe that we should all be engaged in not allowing this important and meaningful actively to be denied.
I agree with others that have stated that the interpretation of the law in this case is skewed. I believe the intent of the law is to fully examine those activities that on the surface seem to be a business. That is appropriate. But, once that notion is dispelled, as in this case, the BOA needs to use common sense and back off. Their ruling has set a disturbing precedent.
But, letting freedom ring is not what is happening, so I suggest that a legal defense fund be established to take this to the highest court necessary. Or, maybe the ACLU would be interested in the case or some other legal defense entity. In any case we should not roll over for obvious reasons beyond these house concerts.
I encourage all to write to the newspaper and representatives to keep this issue alive. If a system for accepting donations is needed and established we should all give what we can.
— William Delamar 26 December 2009
It is painful to watch the trampling of the Constitution and the dream of the Founding Fathers of the United States of America.
I thought I could put it out of my mind by moving to Canada in 2004, but when I see friends treated this way, I need to remind my fellow Americans that we are throwing away the greatness that was once the United States.
Canada is not perfect, either, and I’m making no comparisons.
Good luck, Bett and Bill! Keep up the fight!
Happy New Year!
— Richard L. Hess 31 December 2009