There’s nothing like a good zoning battle to bring out the libertarian streak in this liberal. This is a long entry, so be patient.
I became involved in this zoning dispute because I attended a local house concert a while back where one of my friends, a fine folk musician, played. House concerts are an amazingly intimate setting in which to see a performer–even the smallest commercial venue is likely to be larger than a living room.
Unfortunately someone complained to the Boulder County Land Use Department about another local couple who were very active in the folk and bluegrass music community and had held numerous house concerts at their mountain home. After reviewing the matter, the Boulder County Land Use Department made a determination that house concerts are an illegal business and a prohibited commercial use for a residental property zoned F (for forestry).
I only heard about the situation a couple of days before the appeal at the county courthouse. I quickly went online and read the Boulder County Land Use Code, and contacted the homeowners to get a copy of the letter of violation and other relevant documents.
Upon review the county land use department’s argument seemed very weak; they had merely asserted that the house concerts were a prohibited “commercial use” without citing any support from the land use code. In fact, the land use code never mentioned concerts specifically. For example, the section in which “commercial uses” are given a technical definition treats businesses such as machine shops, bakeries, and commercial laundries. None of those businesses are even close to covering a house concert or music in any way, shape or form. There were a couple of other sections that perhaps might be stretched to cover concerts and even house concerts, but I read them carefully and prepared some arguments as to why they did not apply either.
The first really interesting thing that happened at the Board of Adjustment meeting was that the county attorney, acknowledging that that were well over 100 people present at the hearing in support of house concerts, advised the Board that their role tonight was to be strictly adjudicatory. That is, the Board was to decide only if the county land use office had interpreted the county land use code correctly, not to make policy–as policy was the function of the county commissioners and of any committees to which the commissioners had delegated the authority to propose changes to the land use code. Fair enough, except as the evening progressed the Board clearly did not follow the county attorney’s advice.
The second interesting thing was that the chairman, noting the large volume of letters the Board had received and the large number of speakers present, moved to have a time limit of two minutes per speaker. Not unreasonable, but a bit disappointing to me as I had prepared some detailed arguments. Moreover, they admonished the speakers to try to limit their comments to new information that was not in letters written to the Board and not to speak about what a wonderful community event this was, or what upstanding members of the community the appellants were, and so on.
In doing so however, the Board of Adjustment unfairly stacked the deck against those of us who supported house concerts, because our very defense was that house concerts were a community activity and not a commercial activity as the land use department maintained. In fact the land use code contains many references to many community activities that are not commercial businesses, such as churches, schools, formal voluntary associations and informal social gatherings. Now oftentimes these activities do have an economic side to them–churches also collect voluntary donations, schools hold bake sales and sell school lunches, HOA meetings collect dues, parties cost money to throw, and forth–but no reasonable person would argue that they thereby become commercial businesses. Despite the loathsome tide to apply a “business” metaphor (e.g. “edu-business”) to any activity which has an economic side to it, the simple fact that an event costs the community money does not entail that a community activity constitutes a business. But the Board had made it clear that they had made up their minds already that they didn’t want to hear about how these were community-building informal social gatherings, and so there wasn’t much left that we could say to change their minds.
The third interesting thing that happened was that in his opening argument the county land use director asserted that the word “fee” was equivalent to “voluntary donation.” I couldn’t believe my ears; although I didn’t manage to squeeze it into my turn to speak, I wanted to ask him if that meant I could pay the fees at his office with “a voluntary donation.” It was clear somebody was playing Humpdty-Dumpdty with language.
My own brief comments to the Board came at a volatile moment in the hearing, right after both of the two neighbors who showed up to speak against house concerts gave their testimony. They gave the expected litany of complaints about vehicle noise, traffic, the frequency of the events and so on, as well as bringing up other, unrelated complaints about their neighbors’ (legal!) behaviors that were explicitly not under consideration, such as their cutting trees to mitigate wildfire danger and their home construction, remodelling and landscaping. Though their testimony was emotionally stirring and eloquent, I pointed out to the Board that while such concerns might be real they didn’t sit within the narrow purview of the land use department rulings that the board was supposed to adjudicate. Regulating noise, traffic, the frequency of such in-home events and other concerns resulting from house concerts was properly a political matter and hence better suited for the political wing of county government. I reminded them that such matters were not before the Board that night, and urged them not to take those matters into account in their decision.
I then tried to set out the two arguments that I thought might convince the Board and open their minds to overturning the land use department. I noted that the land use department had decided that the house concerts were a commercial business because the homeowners (or the artist) accepted voluntary donations to pay the musician for the performance, and that concerts were a prohibited use under the land use code. Earlier in the discussion, one of the Board members had pointed out that a key difference between the fee to attend a concert at a commercial establishment and the voluntary donations asked at a house concert was that in former case the business establishment (and not the attendee) decides the amount of the fee and excludes the attendee from the concert when the fee is not paid in full, while the case is precisely the opposite for the voluntary donation at a house concert. At house concerts the attendee decides how much and whether to contribute toward the expenses of the artist, and no effort is made to exclude an attendee who doesn’t contribute. Hence, I argued, house concerts are clearly not commercial businesses.
I probably should have stopped there, or tried to drive that one point home, but I continued by pointing out that there was no provision of the land use code that addressed–much less prohibited–house concerts at all, regardless of whether they were commercial or not. That was probably a tactical mistake, because while technically true the Board was not prepared to believe that someone couldn’t use the code to prohibit house concerts next door. I was trying to emphasize the point that the land use department had failed to reference a single provision of the land use code that prohibited concerts, and I stressed the fact that none of section 503 on “commercial uses” was remotely applicable. Unfortunately I was out of time before I could call attention to the other two sections of the code I had identified as possibly relevant, so I wrapped it up. Big mistake… I think the Board would have been willing to grant me more time to speak if I had told them I could discuss the applicable provisions because I was making a kind of argument that hadn’t already been made in their stack of letters. Instead, I concluded by asking the Board to focus on the code and its interpretation, on their role as an adjudicatory body, and on questioning the land use staff on what exact provisions they read as justifying a prohibition on house concerts.
In retrospect, I’m certain that in the final analysis there’s only one provision of the entire land use code (4-517C) that possibly could have applied had I and my compatriots been able to persuade the Board that house concerts were a community event and not a business. It is a provision which refers to “temporary uses for social group gatherings”–which is exactly what house concerts really are–and it sets out in its definition a two-part test for the county to determine whether such “temporary uses” rise to the level of requiring special approval by a Building Official in the county land use office. Moreover, it is clear that these house concerts did not meet both parts of the test and hence require any special approval.
But even that logic probably would not have mattered, as the land use staff was dug in on their position and the Board was disposed to support them. In fact, the only responses the Boulder County Land Use Director gave to my arguments was that he had used the term “commercial use” in its ordinary sense and not in the “capital letter” sense defined in the code. Secondly, he said that he read the land use code–and I kid you not–as “prohibiting all activities not expressly permitted by the land use code.” That’s a direct quote.
Consider a moment the (frightening) logic that the land use director would employ here. If we were to read the land use code this way, it would mean that a social gathering which didn’t rise high enough to meet the test of whether a Building Official must give special permission would then be prohibited. It would be prohibited because, after failing to meet the test, the smaller or shorter social gathering would not be expressly permitted–reasoning that is clearly absurd, but consistent with the land use director’s stated view. Moreover, this position implies that the crafters of the code foresaw every type of use that might be permissible, and allowed for those and only those uses by county landowners. Yet there is absolutely no support for that contention of the land use director within the county land use code itself–the closest would be a meta-level provision in the code that calls for the provisions of the code to be liberally interpreted.
I’m sorry, but that quote is not a liberal interpretation of the code. It is instead a totalitarian interpretation. Any use that isn’t expressly permitted is prohibited?
Well, it would be one thing if the land use code actually said such a thing, but it doesn’t. The land use director is overreaching. Now, I’ve often been confused whenever a few of my more conservative- or libertarian-minded friends argue that governmental staff inexorably seek to expand their powers in order to over-regulate and control the public’s behaviors, but the land use director’s statement finally made me see why they might sometimes have a point. And although I still think that this is more about a mistaken, overly-liberal interpretation of the land code (in the sense of liberal meaning “too broad” rather than a political viewpoint), I do have to say that…
I have to admit that perhaps there’s a little libertarian in this liberal after all.
That’s really the point of this post, but I’ll finish out the story. Although I wish I had had a chance to speak again at the hearing’s end to challenge this howler, the structure of the hearing dictated that I did not. If I had had the chance however, I also would have pointed out that the Board was explicitly compelled by its charter in the land use code to follow dictionary definitions for terms like business, fee and commercial when interpreting terms not given a technical definition in the land use code. Many of the other supporters of house concerts had read the dictionary definitions of “business” and “commercial” to the Board and into the record, arguing much as I had that the house concerts didn’t fit them. One fellow even read from a Colorado case law decision defining the term “business.” Other speakers continued to make the community-building argument, despite the Board’s admonishment not to raise it, eloquently trying to convince the Board that these house concerts were a community social gathering and not a business.
In the end, the Board of Adjustment ignored all of it and decided to uphold the land use director. What’s worse, in their discussion they clearly did what they weren’t supposed to do; the record is clear that they were making policy. For instance, the Board’s chairman said that the noise and traffic issues and the frequency of the events were what made the house concerts a business to him, using a “looks like a duck/quacks like a duck” test not mentioned anywhere in the land use code–even though frequency, traffic and noise issues would be matters for the political arm of the county government to address should it choose to regulate house concerts. One board member even brought up as yet unmentioned fire and safety issues concerning having a large number of people in a house’s living room–again something peripheral to the board’s adjudicatory role, and better suited for a committee charged with coming up a new regulation. And yet another member of the board said that while the board might feel that “you all are nice people, and folk concerts might not be all that disruptive, the next time it might be a rave or something we really need to prohibit, so we have to consider that the consequences of how we rule on this matter would affect every other case.”
Excuse me, but that last point is the very definition of what a political body should do, as opposed to what an adjudicatory one does. This Board was supposed to interpret the code and its regulations with respect to this particular case, not make new regulations up on the spot because they were worried about what interpreting the code as written might say about some other, hypothetical case in the future.
Now I know the Board is comprised of volunteers from among my fellow citizens and while I’m sure they did their best, I was hoping that they would have a better sense of the limitations of their adjudicatory role. I was also hoping that they would employ some critical thinking and actively question the land use department about what provisions of the code it had applied before the Board came to a decision. But the fact remains, the Board did not do so.
The land use code explicitly states that the Board was supposed to look first at the land use code itself. They did not even mention the code in their closing comments. Where the code failed them they were supposed to look to dictionary definitions and not to the arbitrary ones offered by the land use director. They did not. They were supposed to look at how related governmental documents and laws defined such terms for guidance. They did not.
And so absurdity reigns.