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...