Another great article

No new news: we're still waiting for the Third Circuit Court of Appeals to issue a briefing order so we can get on with the appeal after the voluntary mediation process yielded no results. But there's a great new article on house concerts that includes an interview with me as well as with several other house concert hosts. Check it out at Musician's Atlas

More goodies available

For those of you who are hosting house concerts and setting out a basket for donations to the Music Right Next Door Legal Fund, I've created a couple of things to make your lives a little easier. First, here's a little poster you can set next to the basket. And here are some business cards you can print and stack next to the basket or even carry with you and hand out to anyone you speak to about our civil rights complaint. And here's the donation form you can use to send a donation to the fund yourself, or to send whatever the basket collects at your house concert.

Thanks again for all the help! Let me know if anything interesting happens as a result of your activities or if you set a link to this site or to the Music Right Next Door Legal Fund.

New article discusses house concert issues

The current issue of .::dragonfire::. has an extensive article describing the situation faced by Greg and Debbie Ching and their Boulder-based Aspen Meadows House Concerts. I was also interviewed for this article, as were other house concert hosts, and our perspective is included in the article.

Visible means of support

I've had some great responses to the opening of the Music Right Next Door Legal Fund, and I thank all of you who have been so supportive. Financial support is wonderful, of course, but now there's another way you can help: you can tell other people about this attempt to restrict our Constitutional rights and encourage them to read up on the details and support our efforts. My wonderfully creative friend Ivan Stiles has created the great icon you see here and donated its use to us. What we'd love is if you'd take that graphic, add it to your own web site or blog, and link to this blog or to the MRNDLF site at http://livingroommusic.googlepages.com . You can copy the icon from this page, or download it from http://pages.prodigy.net/cah/concert/graphics/MusicNextDoor200.jpg . And if you do that, please drop me a note to let me know that you're on board, and I'll periodically put up a list of all our friends with backlinks.

On the news front, no new news from our recent mediation session with O'Hara Township. But there's now another family that's running into very similar unconstitutional restriction of their rights to host parties with live music in the Boulder, Colorado area. Greg and Debbie Ching recently lost their appeal of a cease and desist order that prevents them from hosting a party with live music if and only if people chip in to help pay for the music. Greg tells me that the commissioners have determined that it's perfectly ok for them to host a Valentine's Day party or a Halloween party that has live music, but if people chip in for the party, it's no longer legal. I'm still scratching my head and wondering exactly how the commissioners expect to enforce such a restriction. Suppose the Chings host a May Day party with live music, don't set out a basket or ask for donations, but individuals who attend the party privately stuff cash into the refrigerator, the sugar bowl, or Greg's jacket pocket when he's not looking. Then a neighbor complains about the party and an officer shows up asking "Excuse me, where did you get the money to pay your performer?" If Greg says "From my checkbook" (because he wrote a check) is he telling the truth? If he says "I found it in my pocket and my sugar bowl" has he violated the cease and desist order? And (most important) do the local authorties even have the right to ask that question if there's no search warrant or any reason to expect that the money came from an "illegal" source? Check out Greg and Debbie's web site and read some of the linked articles -- it would be pretty funny stuff if it wasn't so sad.

Music Right Next Door Legal Fund

I'm going to skip a few chapters here and note that our Federal Civil Rights complaint against O'Hara Township is currently on appeal to the Third Circuit Court of Appeals. As you might imagine, we've spent quite a bit on lawyers and are anticipating that this will continue for some time. So now we're asking for help from you. We've established the "Music Right Next Door Legal Fund" to collect contributions from the general public to support the ongoing litigation. The web site contains detailed information about the fund including the agreement that details how the funds will be administered. We've registered the name of the fund as a fictitious name, hired an independent accountant to collect and administer the funds, and a voluntary filing with the Pennsylvania Bureau of Charitable Organizations is pending. This is serious business, and we want to make sure that everyone who contributes knows exactly how their contributions are going to be used.

We would appreciate it if everyone who cares about ensuring that local zoning laws respect our Constitutional rights at least enough to permit a citizen to host a party with live music in his/her home would contribute. Thanks again for your support up to this point, and in advance for your future support.

Three More Great Articles

In the May 21, 2006 New York Times:

Move the Furniture, the Band Is Here

In the February 12, 2006 Omaha World Herald:

House concerts offer music, friendship in cozy setting

In "The Wave" Magazine:

Open House

No time to write in detail about the status of our complaint, but suffice it to say that things are progressing and I expect we'll have a chance to sit and talk in the near future. Sure would beat watching lawyers trade briefs....

Entering the Zone

The day of our appeal hearing in front of the Zoning Hearing Board in April, 2003, my friendly volunteer advisors, Peg and Tom, came over to the house to help me strategize. Ideally we would have liked the ZHB to overturn the cease and desist order, but we also recognized that this was not likely given the problems with the way the ordinance was written. So the real strategy was to make sure that we got the ZHB to state clearly the basis for the C&D order. It was impossible to tell from the original document exactly what it was that we were doing that constituted a violation of the zoning ordinance. Was it the parties themselves? Was it that these events were "commercial activity"? And if our parties were "commercial activity" what made them such? Would it be possible to hold a house concert party that would not be viewed as a violation of the zoning ordinance? All of these issues needed to be clarified.

The other piece of our strategy was to make clear that we would view any attempt to enforce the C&D order as a violation of our rights under the First and Fourteenth Amendments of the US Constitution. So Peg and Tom helped me craft a statement to the effect that we believed that the order violated our civil rights under the Constitution and that if the ZHB left it in place and the Township chose to enforce it, we would take action to defend those rights. I was instructed to make sure to read this statement into the record before the ZHB took a vote.

The hearing itself was interesting in the way that small town business proceedings are always interesting. The essence of the neighbors’ complaints was that our house concerts were commercial activity that was bringing dangerous strangers and too much traffic into the neighborhood. "Dangerous strangers?" That was an interesting concept. Certainly the people who were coming to our house were strangers to everyone else. But they weren't strangers to us, unless you count someone who we were meeting for the first time because they'd been brought along by someone who we'd invited. And I had to chuckle a bit sadly about the adjective "dangerous" applied to the doctors, lawyers, accountants, computer geeks, writers, teachers and friends of my daughters who tended to populate our parties.

I stood up and talked about what was actually happening in our living room. We were using an e-mail list, jointly maintained by myself and a friend who was hosting similar parties in nearby Mt. Lebanon, to issue invitations. We maintained the list together because we had many friends in common and didn't want them to be bothered with two or more copies of the same invitation -- before we merged our lists, Annie and I had been sending our invitations to each other and re-mailing them to our personal lists. Our merged list had about 400 names on it at the time, and either Annie or I knew everyone on the list by face and name. We always asked people to RSVP so that we'd know how many were coming and could buy food and supplies and set up chairs for the party. We did not do any other advertising. The article in the paper had been a happenstance thing -- the PG reporter was looking for interesting things happening in the area on Superbowl Sunday and a friend had passed along our e-mail about the upcoming "Avoid the Superbowl" party which happened to feature three interesting musicians who had been traveling together across the US doing "The Great American House Concert Tour." He asked for permission to print something about it, and I had given it to him with the proviso that he list "an undisclosed location in O'Hara Township" and our phone number rather than an address. I actually received only three calls as a result of that published item, and none of those who called ended up coming to the party. We did not sell tickets, but we did ask people to throw $10 per person into a basket to help pay for the music.

Others who spoke during the hearing were concerned that because our performers stayed overnight at our house it looked like we might be running a bed and breakfast in our home. We explained that it was true that performers stayed overnight, but since all but a very few who performed in our living room were friends I'd gotten to know well in my other life as a folk musician, we didn't understand why anyone in the neighborhood should have any concerns about us hosting them overnight. They may have been strangers to our neighbors, but they were definitely our friends and we were happy to put them up for a night and feed them. In fact, one of the main reasons we started hosting concerts was to give my musical friends and I an excuse to visit and hang out together in between bumping into each other at summer festivals and workshops. They were traveling, Pittsburgh was along the way, and being able to share their wonderful music with my friends when they stopped to visit was a big bonus and a lot of fun for all.

In response to a question about how I booked performers, I told how several weeks earlier I'd spent a week in a dulcimer workshop with Lorraine Lee Hammonds, a fabulous musician who is well known in the dulcimer world, but hardly at all outside of that small group. Since there were only 10 of us in Lorraine's class, we got to know each other pretty well, and while chatting with Lorraine later in the week I mentioned that if she ever was passing through Pittsburgh, she'd be welcome to stay over with me and do a house concert. We had exchanged contact info, and I fully expected that at some point she'd come to Pittsburgh and my friends would be able to hear the great music Lorraine makes. I concluded by pointing out that nearly all the performers in my living room were musical friends like Lorraine -- I'd played with them, gotten to know them pretty well, and felt comfortable enough with them that I would be happy to welcome them into my home.

The ZHB chairman decided at that point that it was time to take a vote, but it wasn't quite over yet. The ZHB's lawyer added that before they voted, the ZHB members needed to realize that this was not like a request for a zoning variance where they could allow the variance with modifications. They had to either vote to leave the cease and desist order in place or strike it down. He then went on to advise that he saw five things that we had been doing that were not commercial activity in and of themselves, but that he felt taken together indicated possible commercial activity. The five were:

1. Frequency: we had hosted a concert about once a month over the previous six months.
2. Traffic: 30-40 people at our parties meant a lot of cars parked in the street
3. Advertising: the web pages for the concert could be viewed as advertising
4. Publicity: the item in the Post Gazette could be viewed as publicity
5. Ticket sales: the lawyer stated that he could not believe that tossing money into the basket was voluntary, so we must be selling tickets

The lawyer then advised the ZHB to vote to uphold the cease and desist order. I asked for a moment to read my statement about the relationship between the C&D and our civil rights into the record, and did so. The ZHB then took a vote and decided to uphold the cease and desist order. What that meant was that we had to cease holding the house concerts as they were presently constituted.

More about what we did after that shortly.

Links to related discussions

Just a quick break in the story line to mention that there are lots of interesting discussions going on about house concerts with many points of view being debated. If you have the time and interest, check these out:

Just Plain Folks Forum
http://tinyurl.com/jjl43

Sing Out! forum
http://tinyurl.com/gemsz (starting around message #2681)

I'll post some more of the links to interesting stories and discussions as I receive them and sort through them.

Approaching the Zone

Once we'd decided to file an appeal to the zoning hearing board (and suffered the insult of being required to pay $250 for the privilege) it was time to do some research. Neither Rick nor I had had any experience with such things. But my friend Rex had been a city manager in Michigan for more than 20 years, so I found time to sit down and talk things over with him.

Unfortunately Rex's first comment after listening to the story was not reassuring. "You're going to lose," he stated flatly. What Rex understood about zoning hearings is that they are strictly about zoning. The only issues of law that can be considered are those that are included in the zoning ordinance. Think of it as instructions to the jury. In a trial, the judge tells the jurors what they may and may not consider, sets the definition of any terms that may be unclear, and so on. A jury can be told that a particular verdict is off limits, or that they must come up with a verdict using only certain evidence and ignoring other evidence that may have been presented. In the same way, the Zoning Hearing Board is required to evaluate an appeal based strictly on the zoning ordinance. Constitutional issues just don't come into play, so even if our rights were being violated it wasn't up to the ZHB to say so. All they could do was decide to either uphold the cease and desist order or strike it down based on whether they believed our house concerts were violating the zoning ordinance.

So it was time to look at the O'Hara Township Zoning Ordinance itself. And what we found was disconcerting to say the least. The area we live in is zoned "R-2." Article V of the ordinance (page 36) describes the purposes of an R-2 zone (suburban residential) and specifies 16 "permitted uses" and another six "conditional uses" that require a special permit. "No impact home based business" was on the list of permitted uses, and the Township's cease and desist order seemed to be implying that our house concerts were both (a) a business and (b) not "no impact" and were thus not in keeping with "permitted uses."

The only problem with this theory was that we weren't a business and we had little or no impact on the neighbors. Certainly we were not noisy (acoustic music with little or no amplification), and our parties were not large, probably smaller than most people's parties. But nowhere in the ordinance could we discover a place where "commercial activity" was clearly defined. Even worse, those 16 permitted uses did not include things like parties, political fundraisers and the like. And to top it all off, Article 1 (page 3) specifically states under "Interpretation" that "Uses of land, buildings or structures not clearly permitted in the various zoning districts are prohibited." So where do those parties, piano recitals, political fundraisers, prayer meetings and so on fall? We certainly felt that they should be permitted under "Single family dwelling" but we'd have to convince at least two out of the three members of the Zoning Hearing Board that this was the case. It didn't look like a promising prospect.

So I called on some other friends for advice, and that eventually resulted in the local ACLU chapter agreeing to have their Law Committee reviiew our situation. To make a long story short, they declined to enter the case at that point but Peg Fried, a lawyer and an acquaintance from musical circles, was in attendance at that meeting and she and another lawyer volunteered to assist me informally with the zoning appeal hearing.

Of which more shortly...

In the beginning

It was the fall of 1998 when one of my musical friends mentioned to me that he'd love to come out to Pittsburgh to do a house concert at my house. At the time I had never heard of the concept, but Ivan explained that all I had to do was invite my friends to a party to hear him perform live in my living room, provide some snacks, and ask everyone to chip in. It sounded like a really great idea, so we set a date. I put together a flyer and handed it out to everyone I came into contact with for six weeks before the concert date: friends, business associates, students -- a real cross section of my life. I sent out e-mail too, but in late 1998 e-mail was not as pervasive as it is now, so hand-delivered invitations were necessary.I was thrilled when thirty-odd people RSVP'd for the party. And we were all thrilled with Ivan's performance: Ivan's a crowd-pleaser who plays four or five acoustic instruments, sings beautifully and has an interesting and eclectic repertoire with something for everyone. For the next two weeks I couldn't go anywhere without someone literally grabbing me to say what a great time they'd had and asking when I was going to do it again.

So after that it was easy. Sometimes I asked my musical friends to come and perform in my living room, sometimes they asked me if they could come. Some of the performers were incredibly talented musicians I'd met in my travels but whose names would not be recognized outside of a small circle, and some were very well known performers with national reputations who I'd had the good fortune to meet and get to know as individuals. Sometimes 40 or 50 people came for a party, sometimes only 15 or 20, but it was always good clean fun. At any given concert there might be rapt listeners ages 7 to 70, all enjoying the same performance. By the time we took a break for snacks even those who had arrived knowing no one besides me would be chatting away like old friends, and because they had the music in common they discovered other things to talk about as well.

I learned some things early on about hosting house concert parties. Some people's drinking habits made me uncomfortable, so after the first couple of parties we made it a rule not to serve alcohol. We have a non-smoking house, so no one ever smoked. Potluck suppers following the concert were always great and no trouble to host, so we tried to schedule concerts to accomodate the food. I encouraged people to bring their instruments and stick around after the concert for an informal jam session, so we'd often spend several hours sitting in a circle trading tunes and songs. We found ways to accomodate friends with young children and friends in wheelchairs.

From that first concert with Ivan in 1998 until early 2003 we hosted 26 concerts. My neighbors were invited with flyers, but none ever chose to come. Neither did they voice any concerns. Nor should they have: in any given year I'd host anywhere from 3 to 8 concerts between September and May -- far less than one a month on average even that year we had 8. No one was ever ticketed for illegal parking, no driveways were blocked, no property was damaged, no litter was discovered, and since we didn't use any amplification there were no complaints about noise. During one concert that took place during a snowstorm a Township police officer came by to ask that a few cars be moved to let the plow through -- no big deal, just doing his job. These were ordinary parties in an ordinary neighborhood, no different from my neighbors hosting a football party with friends chipping in for pizza and beer, or a Cancer Society fundraiser, or a Mary Kay party, or a children's birthday party with a clown to entertain, or a graduation party with a live band or DJ.

So we were very surprised in February of 2003 when we received a notice from the Township that we were in violation of the Zoning Ordinance and ordering us to cease and desist hosting house concerts or face fines and penalties. It seemed that they somehow had gotten the impression that what were were doing was some kind of commercial activity. So the next morning I went down to the Township to speak to the Zoning Officer, sure that this was just a misunderstanding that could be quickly cleared up and we'd all go on our way. But it wasn't that easy. The Zoning Officer seemed understanding, but she had received a complaint from a neighbor that advertising and publicity from my activities was bringing too much traffic and undesireable strangers into the neighborhood.

The "advertising" the neighbor was worried about was a web page on my personal space on my access provider's server. No special domain name, just a web page like this one that gave the details about the upcoming house concert and links to an archive of pages about past concerts. By that time we were inviting friends exclusively through e-mail having merged our list of friends with those of others in the area who were also hosting house concerts so that we'd all have an easy way to invite everyone without duplicating effort. Even with nearly 400 people receiving e-mailed invitations to visit the page, there were rarely even half that many visits to the page. Clearly only those who were receiving the e-mail bothered to visit the web site to get the details -- it wasn't attracting any kind of public attention. From our perspective, it was just a convenient way to make a whole lot of information about the upcoming party available to our friends without sending a long e-mail.

The "publicity" was a very brief item that appeared on the local paper's "Weekend Hotlist" feature. Our February house concert was going to be held on Superbowl Sunday and we were jokingly calling it an "Avoid the Superbowl" party. When a friend at the Pittsburgh Post Gazette who was desperate for something he could print about interesting things to do in Pittsburgh that Sunday asked if he could mention the house concert I agreed stipulating that they not publish our address.

After we went over all of this, I asked the Zoning Officer if she'd be willing to tell me who had filed the complaint so that I could address the problem directly with them. No dice -- those who file complaints have the right to remain anonymous, so she could not tell me who it was. But she did offer to arbitrate the dispute, and I was happy to accept the offer. Unfortunately the neighbor was not willing, so at that point the only thing the Zoning Officer could recommend is that we appeal the cease and desist order to the Zoning Hearing Board.

Wow, who would have thought that inviting friends to hear a little live acoustic music in my living room could get so complicated? But it did, and the story isn't over yet....

Zoning concerns versus the US Constitution

"Imagine for a moment that a municipality would first enact and then enforce a local ordinance that limited the number of times each year that homeowners within its boundaries could invite guests into their homes. Imagine further that – as a method of traffic control - the municipal government also limited the number of guests that its residents could entertain at any one time. Not only that, but this ordinance also prohibited the residents and their guests from playing or listening to acoustic instruments or sharing a pot-luck dinner. Under this ordinance, it was a further violation for a homeowner to allow a newspaper to publish an article about a gathering at his/her home and such homeowner risked prosecution if he/she dared to maintain a website that announced such get-togethers. It also provided stiff penalties if any guests voluntarily chipped in to make up a gratuity to be given to those playing the acoustic instruments.

"One will not find the foregoing events in the text of George Orwell’s 1984. Nor in a law school hypothetical. It is not fiction. These events actually took place – not in 1963 Communist East Germany – but, rather, in the first decade of the twenty-first century in the Township of O’Hara, Allegheny County, Pennsylvania.

"Fortunately, the protections afforded to the citizens of this nation –including the residents of O’Hara Township- by the United States Constitution, assure that they will not be deprived by their government of their personal liberties. These protections demand that this sort of egregious abuse of power by the municipal government of O’Hara Township not only be nullified, but emphatically condemned. "

OK, I suppose it sounds a little dramatic. But those three paragraphs are part of the introduction to a Federal civil rights complaint recently filed by my husband and I against O'Hara Township, a tiny suburb just north of Pittsburgh, Pennsylvania. We filed the complaint because we strongly believe that no municipal authority should be able to use a zoning ordinance to prohibit any homeowner from engaging in activities that are protected under the US Constitution. And we are certain that inviting people into our home to share live acoustic music and a potluck supper cannot possibly be prohibited without violating our rights to assembly and free speech as laid out in the First Amendment even if we expect people to throw a few dollars into a basket to help us pay the performer.

This blog is intended to be a place where we can tell the story of how a poorly-written ordinance allowed a local municipality to take legal action intended to encourage my husband and I to stop inviting our friends to gather not more than 7 or 8 times a year in our home to enjoy legal activities of our choosing. No, after more than 30 house concerts held in our living room, there have been no complaints of noise, property damage, littering, intoxication (we don't serve alcohol), cars blocking fire hydrants or driveways, or any other impacts that are above and beyond what one might expect for a party with 20 or 30 people in attendance. So how, one might ask, did all of this get started? And how did it get to the point where we felt we needed to make it into the proverbial "Federal case?"

Stay tuned...