by Bob Geary
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."