Chris Devine of the Town of Herndon thought his house concert series, "Crib Concerts" was back in action after the town's Board of Zoning Appeals (BZA) reversed the Zoning Administrator Notice of Violation, case #19-01, voiding it.

The BZA stated, "ambiguity within the ordinance and the ordinance not specifically identifying house concerts as not being permitted" caused the board to reverse the decision on Jan. 24, 2019.

Aggrieved by the decision, on Feb. 21, 2019, Petitioners Richard Downer and Steven Mitchell filed, by Counsel Michael L. O'Reilly, Writ of Certiorari in the Circuit Court of Fairfax County for its review and acting on the BZA's decision of Devine's appeal. Downer and Mitchell see the house concerts as a commercial use in a residential area.

But Anders Thueson, Producer, SongPo Radio, WERA FM Arlington says, “House concerts are philanthropic by nature, friends and neighbors coming together to enjoy the talents of artists both local and on tour, opening their homes, sharing food, drink; money is not the common denominator.”

In January, Devine shared how his guests can sign up to request seats at any of The Crib’s upcoming events listed on his website and make a “suggested donation” to the artists in advance. “100 percent of donations go directly to the artist. Every artist…every time.” Devine said, “I hold the virtual tip jar as a volunteer service to the artists and pass all the donated funds to them."

Devine compared his house concert gatherings to political fundraisers in private homes where invited people gather and money changes hands. He said the concerts are not open to the public as he can refuse anyone entry.

A copy of the obtained petition for a Writ of Certiorari by Downer and Mitchell reviewed the zoning violation and the BZA's appeal decision. According to the petition, Devine and his company, Crib Music Enterprises, LLC were cited for a zoning ordinance violation "pursuant to the Town of Herndon Zoning Ordinance 78-50.6 for the establishment of a prohibited use on the property, ... operation of a commercial enterprise of staging concerts with recognized artists after advertising them on internet sites and through other means. The owner collected money from the attendees, which were used to pay the performers ... The property is a townhouse located in a residential neighborhood."

In the BZA's appeal decision, Downer and Mitchell's petition stated that after hearing from Devin and the public, the Board decided that the Zoning Ordinance "was not clear in its prohibition of the activity cited and therefore overturned the zoning administrator's decision of a zoning violation."

PETITIONERS Mitchell and Downer maintained facts and law did not support the Board's decision. First, "the facts presented clearly indicate a commercial enterprise was being operated in a residential neighborhood.” Second, the Board's decision incorrectly applied the law to the facts according to the petition: "The decision appears to have been based on a rationale that the zoning ordinance is required to list any uses specifically prohibited in a zoning district. The Board found the ordinance "vague" as to whether this commercial use was prohibited. As instructed by the Town Attorney during the hearing (which instructions were not followed) the zoning ordinance lists ALLOWED uses in zoning districts. Any use not specifically ALLOWED is therefore PROHIBITED."

In a request for comment, Mike O'Reilly, Counsel for Mitchell and Downer said, "I was asked by two extremely knowledgeable lifetime Herndon residents to file an appeal of the BZA decision which essentially allowed a home based business without any of the required approvals. Their concern deals not only with the disruption such a business can cause to a neighborhood but also with the health and safety of all participants. This particular use could well be approved in certain zoning districts, but the proper procedure is to create an “allowed use” through public hearings at the Planning Commission and Town Council. Then all Herndon residents will have a chance to voice their opinions."

The Town of Herndon's Petition for a Writ of Certiorari and Appeal dated Feb. 22, 2019, cited similar respondents. The Petition ultimately maintained Devine's use of the property as a concert venue was not an accessory use. "The Town of Herndon, Virginia through its Zoning Administrator, objects to the Board of Zoning Appeal's decision in this case as contrary to applicable zoning standards," cited the petition.

THE TOWN OF HERNDON BZA was ordered to "certify and return to this Court and serve the Petitioners' counsel within sixty (60) days after entry of this Writ, a full and complete record of the proceedings on January 24, 2019." Likewise, the Court prescribed in the Writ on Petition of the Town of Herndon that the BZA return to the Clerk of Court and serve on the parties a copy of the record decision by April 1, 2019.

According to an obtained copy of the Petition for Writ of Certiorari and Appeal submitted by Lesa J. Yeatts, Town Attorney Town of Herndon, Yeatts signed a Certification stating that she had "in good faith conferred or attempted to confer with other affected parties in an effort to resolve the subject of the motion without Court action."

R Christopher Devine of Herndon said, “I’m disappointed but not surprised that there has been no attempt by the Town of Herndon to confer with me as an affected party in an effort to resolve this issue without court action. I reached out to my elected officials on the Town Council and was told they were not at liberty to discuss it. Litigation is expensive for everyone; this process will certainly be costly to me and the other taxpayers of the town.”

"The town has no comment on pending litigation," stated Anne Curtis, Chief Communications Officer at Town of Herndon.