By Sean Tubbs


Wednesday, February 16, 2011

The city’s top planning official met with members of Charlottesville’s music community Tuesday to explain how the city’s zoning code could be rewritten to allow music performances in restaurants.

Next month, the city

Planning Commission

will evaluate the proposed changes, including consideration of relaxing the tougher regulations applied to the


neighborhood last year.

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“What I’ve got drafted now to go to the Planning Commission in March [are] changes to the code that would say that in every place we now have music, they would be allowed ‘by-right’ — meaning they could just keep operating,” said

Jim Tolbert

, the city’s director of

neighborhood development services


Blue Moon Diner owner Laura Galgano was one of several dozen musicians and business owners who attended the event

Photo: Andrew Shurtleff, Daily Progress (used by permission)

However, Tolbert said there would be exceptions. He suggested music would not be an allowed use in neighborhood commercial corridor and industrial zoning districts, such as in Belmont.

The city’s zoning code currently allows non-amplified music in all restaurants, but if tables and chairs are moved to clear the way for dancing, the venue is technically a “music hall.” That requires the owner to pay $1,500 for a special-use permit, but the use is not allowed in all of the city’s commercial zoning districts.

“My personal feeling is that no permit should be had anywhere, but I’m willing to concede that in an area like Belmont, that’s completely ludicrous,” said Bailee Elizabeth, a musician who has been helping to organize the community.

Elizabeth became actively engaged in the issue in January after the

City Council

directed the Planning Commission to study possible changes to the zoning code to address the issue.

“Why not allow them to apply for the special use and let the neighborhood decide whether they’re allowed?”

Currently, restaurants established after September 2003 that want to offer amplified music must have a special-use permit. Tolbert said only about four or five restaurants have applied for the permit since that time, but many are not currently in compliance.

“There’s about 20 that started up post-September 2003 that just happened,” Tolbert said. “They started off as a restaurant and started adding music and nobody was really looking at it until we had a problem last summer at one location.”

Tolbert was referring to

Bel Rio

, a now-closed restaurant in Belmont that angered many of its neighbors with loud music events. That prompted the city to adopt a 55 decibel noise ordinance for Belmont and make a change to the zoning code that stripped out the ability for any Belmont restaurant to offer amplified music.

“We’re paying consequences for [the city’s] inability to shut him [Bel Rio],” said Adam Frazier, owner of The Local on Hinton Avenue. Frazier, a Belmont resident, said he knows many Belmont residents who support live music, as long as the sound is not a problem.

When Tolbert last met with members of the music community in late January at Random Row Books, he said he was toying with the idea of requiring a provisional-use permit if a venue wanted to hold music. Discussions with musicians led him to change his mind.

“You all have convinced me that we have three laws that control what’s happening in the music establishments,” Tolbert said. “That’s the noise ordinance, the ABC laws and occupancy laws. Those three get at the vast majority of the issues that anybody has.”

Many musicians and business owners vehemently insisted that Tolbert also bring forward a change that would restore the right of Belmont restaurants to offer live music.

“It’s a minority of Belmont residents that are opposed to it,” said musician Jamie Dyer. “The majority of Belmont, they want music.”

Tolbert said vocal residents of the Belmont neighborhood asked for the changes last summer, and said he thought the City Council and the Planning Commission would not be interested in allowing live music in Belmont.

“Ninety-nine percent of the changes we’re talking about making now, everyone is going to support, but as soon as we throw Belmont in there, we’re going to run into a buzz-saw,” Tolbert said.

After a vigorous discussion, Tolbert said he would present the commission with a second agenda item that will propose allowing music in Belmont with a special-use permit. The commission will take up the issue March 8.

George Benford, owner of Siips on the Downtown Mall, welcomed Tolbert’s plan. Siips offers music on weekends, despite not having a permit.

“What you’re doing is the first step towards getting this special-use permit off the books, allowing places like us to have music when we’ve been in violation all this time unknowingly,” Benford said.

Last week, the

Rutherford Institute

issued a letter to the city urging councilors to not enact a zoning ordinance that restricts business owners and musicians’ right to free expression.

“Where a city excludes a broad category of protected expression as a permissible commercial use, the First Amendment requires that the ordinance be narrowly drawn and further a sufficiently substantial government interest,” reads the letter from John W. Whitehead, head of the Albemarle County-based civil liberties organization.

“Nobody is saying you can’t play music or you can’t express yourself,” Tolbert said. “What you can do under zoning is you can regulate the location of certain kind of business establishments. … Our attorney would disagree with the [Rutherford] opinion.”

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