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Harris v. Township of O'Hara

November 7, 2006


The opinion of the court was delivered by: Magistrate Judge Lisa Pupo Lenihan



Plaintiffs Cindy Harris and F. Richard Heath (the "Homeowners"), and Jay Mankita and Kathy Moser (the "Performers") brought this action alleging various federal constitutional violations on the part of the Defendants in connection with the conduct of "house concerts" at the Homeowner's residence. More particularly, the Amended Complaint alleges that the Defendants' zoning-ordinance-related conduct is violative of Plaintiffs' rights under the First, Fifth and Fourteenth Amendments to the United States Constitution.*fn1 The case is currently before the Court on Defendants' Motion to Dismiss.

Because the Court concludes that Plaintiffs' constitutional claims are (1) barred by the statute of limitations as to claims alleged to arise from particular acts of the Defendants in 2003; (2) not yet ripe as to claims alleged to arise from the Zoning Officer's January 26, 2006 Letter and/or subsequent conference with Plaintiffs' counsel; and (3) as to a challenge to the facial constitutionality of the underlying statute, unsustainable on the merits; Defendants' Motion to Dismiss will be granted.

The Court notes in so holding that if the Township's Zoning Hearing Board, in reaching a final determination, were to issue a blanket prohibition on the conduct of music concerts in a private home in a residential zone, without regard to, e.g., the existence or non-existence of commercial indicators, such prohibition would raise significant federal constitutional concerns. But, Plaintiffs' sweeping characterization in their Introduction to the Amended Complaint notwithstanding, that case is simply not presently before this Court.*fn2


Plaintiff Homeowners have been residents of O'Hara Township, Pennsylvania (the "Township") since 1991. Plaintiff Performers are musicians who were guests at the residence and who performed music at a "house concert" there on February 2, 2006. Defendants are the Township; the Township's Zoning Hearing Board (the "Board"); the Township's Council; Cindy L. Davis, individually and in her capacity as the Township's Zoning Officer (the "Zoning Officer"); and Douglas C. Arndt, individually and in his capacity as Township Manager.

Since approximately 1998, Homeowners have been holding "musical gatherings" or "house concerts" (the "concerts") at their O'Hara Township residence, which is in an R-2 (residential) zoning district. The concerts provide a forum in which out-of-town musicians (e.g., those traveling from one commercial engagement to another) may perform to an in-home audience, perhaps "jam" with other musicians present, share a meal (e.g., a "pot-luck dinner"), have a place to stay for the night, and supplement their income with "donations" collected from individuals attending the concert. The concerts also provide the hosts and other individuals attending an occasion for social gathering/communion and an opportunity to experience/enjoy the talents of musicians who might not otherwise be accessible to them.*fn3 In essence, much like many residential parties, they broaden and sustain an informal community of individuals with shared interests.

The concerts were first brought to the Township's attention in approximately February, 2003, when neighbors complained about the number of cars parked in the residential neighborhood, which were asserted to be obstructing traffic (e.g., the ability of two cars to pass on the street), and about the concert frequency. In addition, one neighbor, Kim Watterson - after engaging in internet research regarding the Homeowners' concerts and practices related to the conduct of house concerts generally - raised legal concerns regarding the possibly commercial nature of the concerts, in violation of the residential zoning restrictions.

On February 18, 2003, the Zoning Officer issued an Enforcement Notice of Zoning Violation (the "2003 Notice"), informing the Homeowners that they were in violation of the Zoning Ordinance and requiring that they discontinue the concerts. The Notice asserted that the concerts were in violation of the residential zoning because they (1) were advertised/promoted in the newspaper and on websites; (2) were open to the general public; and (3) included requested donations for the performers.

Plaintiff Harris appealed the 2003 Notice to the Board and a hearing was held on April 14, 2003 (the "Hearing"). At that time, the Board heard testimony of complaint from the Homeowners' neighbors. The transcript of the Hearing reflects an exploration of the specific nature of the house concerts occurring at the Homeowners' residence; the specific aspects of those concerts which caused the neighbors to complain; possible avenues for a mutually acceptable resolution of the neighborhood tensions; the basis for distinction between the house concerts as conducted and other private parties; and the specific aspects of the concerts that the Board deemed problematic in a residentially-zoned area because, taken together, they too closely resembled commercial activity. The tenor of the Hearing reflects the parties' laudable efforts, at that time, to cooperatively reach accord and the Board's desire to narrowly identify its reasons for affirming the Enforcement Notice before it.*fn4

More specifically, the Board identified five features of the house concerts which it deemed cumulatively indicative of a commercial nature: (1) that the house concerts were occurring frequently - e.g., eight or more per year, typically one per month from September through April; (2) that the number of guests parking on the street - e.g., in excess of fifty guests -was creating parking problems for residents and/or obstructing through-traffic, as recorded by a police report at the time of one concert;*fn5 (3) that the Homeowners were requesting a "donation" in the specific amount of $10 at the door; (4) that the Pittsburgh Post Gazette, in its weekend entertainment section, recommended a January, 2003 house concert to its readers and provided Plaintiff Harris' telephone number; and (5) that Plaintiff Harris maintained a website where information on upcoming house concerts and visiting musicians was indiscriminately available to internet viewers.

The Board therefore concluded that it must affirm the Enforcement Notice on the basis of its assessment that the "particular concerts as a whole, and conducted in the manner in which they have been handled heretofore" were "commercial in nature" and therefore "a detriment to the health, safety and welfare of the community." It also, however, expressed its desire to express what might "be acceptable the next time around" and its willingness to reconsider the permissibility of house concerts conducted with modifications. See, e.g., Defendants' Reply to Plaintiff's Brief in Opposition at 4 (citing hearing transcript, in which the Homeowners were advised that if they were "going to change some of these criteria [that the Board found cumulatively indicative of commercial activity], the [Board] might be willing to look at it differently").*fn6 The Board issued its Findings of Fact and Conclusions of Law in mid-May, 2003 (the "Board's Decision").

Following the Hearing, the Homeowners made no appeal of the Board's Decision to State or Federal Court, instead electing to modify the manner in which they conducted the house concerts in an attempt to comply with the Board's specific ruling. The Homeowners reduced the frequency of the concerts to three (3) in 2004 and three (3) in 2005. They advised their guests to be mindful of neighbor's driveways when parking and to allow room for through-traffic. No further publicity of the concerts occurred in the print or other traditional media; and Plaintiff Harris replaced the website information on the house concerts with a notice advising internet readers of the Board's decision and directing them to contact her if they were "interested in house concerts in the Pittsburgh area".*fn7 The Homeowners continued to request entirely voluntary "donations", but never took any portion of the monies collected or made any profit from the concerts; to the contrary, the Homeowners sometimes contributed additional monies for the musicians out-of-pocket when they felt voluntary contributions were insufficient.*fn8 No parking or street congestion complaints, or complaints of any other nature regarding the house concerts, were brought to the zoning authority's attention for an approximately two year and eight month period.*fn9

On January 26, 2006, Plaintiff Harris received correspondence from the Zoning Officer advising that her continuation of house concerts had been brought to the zoning authority's attention once more and indicating that the Homeowners would be in violation of the 2003 Notice if "any [advertised or other] concerts occur" (the "2006 Letter"). The correspondence further advised that if a concert proceeded the Township would "institute a proceeding in front of the District Magistrate and [seek fines] of $500 for each violation." It would appear that this correspondence from the Zoning Officer was the result of renewed complaint from the Homeowners' neighbor, Ms. Watterson, who had discovered internet information indicating that the Homeowners were planning to hold four more house concerts in a two month period between February 2 and April 5, 2006.*fn10 As noted above, the correspondence asserts a blanket prohibition of any house concerts at the Homeowners' residence.

Five days later, the Homeowners' counsel met with the Zoning Officer and the Township Solicitor, Phillip Weis, to discuss the 2006 Letter, inform the Township of the manner in which the concerts had been significantly changed, and inform it that the concert scheduled for February 2, 2006 would proceed as planned, as it was not in violation of the Board's Decision. At that time, the Homeowner's counsel also indicated that no requests for donations would be made and prospective guests had been so informed by prior e-mail. The concert proceeded with the Performers and twelve guests in attendance, but because neither the Zoning Officer nor the Township Solicitor "would acknowledge that the scheduled concert" could lawfully proceed, the concert was held in fear of dispersal by the police.*fn11 Although Defendants took no ...

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