HomePage

'Music City' Doesn't Want You Making Music at Home

A Nashville producer challenges the city's crazy ban on commercial home recording studios.

|

Adam Livingston

Elijah 'Lij' Shaw came to Nashville in the 1990s to study music. At first, that meant spending a lot of time on the road. "The first decade of my career, [I was] traveling all over the place and interacting with major record labels and sort of going where ever work would take me," he says.

Eventually, Shaw built The Toy Box, a soundproofed home studio located in his detached garage. Being able to work at home, he says, allowed him the opportunity to raise his daughter while still tapping into one of the world's best music scenes, bringing stability to an unpredictable business.

"Nashville is one of the few places remaining in the world where some of the very best musicians get together face to face to make music," says Shaw, who has worked with recording artists ranging from Jack White to Wilco to Adele. "That's why I wanted to be here and why I wanted to create a home studio."

But for the last four years, the city of Nashville has been trying to shut that studio down.

In August 2015, Shaw received a letter from the Department of Codes and Building Inspection informing him that his studio was an unpermitted home business and was therefore illegal. Shaw was given two weeks to cease and desist his recording operations or else face daily fines of $50 and potentially be taken to court.

"My heart just dropped completely," Shaw says. "For the next week I couldn't even sleep, like what am I going to do? This is my entire life, this is my everything."

After the letter came a phone call from a code enforcement officer, followed by a home inspection, and then a mounting series of demands from officials. Shaw was told to remove recording equipment from his house, strip his prices and address off his business' website, and take videos of his studio recordings off his YouTube channel. Failure to comply would mean fines and possibly even jail time.

Shaw had violated an obscure provision in Nashville's zoning code that bans home businesses from serving clients on site. The code effectively outlaws his studio and thousands of others like it in a city made famous for its music. As written, it may even prevent home studio owners from inviting fellow musicians into their homes.

He and another local entrepreneur are now suing the city with the help of a libertarian law firm, the Institute for Justice. Their suit claims that Nashville's home business ban is an unconstitutional restriction on the right to earn a living. More than that, the suit is an attempt to protect Nashville's storied music scene from outdated zoning codes that segregate cities into commercial and residential categories while criminalizing the sort of creative spontaneity from which great music is born.

Making Music in Music City

Nashville is home to one of the world's biggest, most successful music scenes. One study found the music industry contributes some $5.5 billion a year to the local economy. The place has played a crucial role in the development of country music, and artists from Elvis Presley and Bob Dylan to Taylor Swift have recorded there, helping give Nashville its famous nickname: Music City.

Over the years, home studios have become increasingly central to this thriving scene. Dave Pomeroy of the Nashville Musicians Association estimates that there are thousands in the city.

"The evolution of technology over the last 20, 30 years has made many things possible that were unthinkable," he says. "So in any music center, home studios are playing an increasing role. In Nashville, I think it's heightened because there is such a high per capita of musicians—perhaps higher than anywhere else in the world."

Yet thanks to local zoning rules, what Shaw and so many others have been doing in their homes is against the law.

Nashville, like almost every city in the country, has what's known as Euclidean zoning, which tries to separate cities into discrete blocks of what activity is allowed to happen there: residential, commercial, industrial, etc.

Most local governments will make some exceptions, so that telecommuters or after-school tutors are able to work from home. This includes Nashville, whose code allows some "home occupations." But the code does not allow paying clients or patrons to visit a home business.

This rule was passed in 1998 as part of a comprehensive overhaul of the city's zoning code. It's also a provision that appears to be unique to Nashville.

"I've seen cities that will allow a certain number of customers per day, but I've not seen anything that makes it illegal to even have a student over for a piano lesson," says Keith Diggs, an attorney with the Institute for Justice. "In that sense it is pretty much the most extreme version of the home business ban that I could imagine."

Much the same thing was said by a then-councilman on Nashville's Metro Council, Mike Jameson, who led a brief, ultimately failed effort to ditch Nashville's client prohibition in 2011.

"We went through the zoning codes of every comparable city in the United States. There is not a city in the United States that flatly prohibits clients and patrons on site," Jameson said during a Metro Council meeting.

Stranger still, there does not appear to be any record of why this prohibition on clients visiting home businesses even exists. In that same meeting, Jameson said his staff examined all the records from the zoning code overhaul ("15 bankers' boxes") and found nothing explaining why this change was made.

"There was no individual attention to this issue," said Jameson. "Nobody understands why the client and patrons prohibition was added."

Visiting Hours

Adam Livingston

Yet the prohibition exists, and it is ensnaring studio owners like Shaw. The line between who they are allowed to have in their homes and what exactly they're permitted to do once there is fuzzy, frustrating, and inherently complicated by the social nature of their business.

One thing Shaw would do to promote his business was to have musicians come over to play in his studio, often for free. Shaw and his guests would record these sessions on their iPhones, then upload them to his studio's YouTube channel. It was a mutually beneficial activity, he says, allowing him to showcase his studio and allowing musicians to raise their profile and get more gigs at local venues.

But because he was using this to promote his home business, and because these musicians were considered his clients, Shaw had to stop making videos. Indeed, he says code enforcement officials made him take down his entire YouTube channel. Much of his website had to be taken down too, from his rates to a video inviting people to come record in his studio. It was too closely connected to the underlying illegal activity of recording people for pay at his home.

Todd Burkette is a former engineer who started building a home studio in the '00s as a way of giving his two adult sons, both of whom are musicians, a place to play. When the Great Recession put a squeeze on his income, he decided to try to monetize his set-up by renting out his space to bands and to other producers.

In October 2018, he was hit with a cease and desist letter. The code enforcers demanded he take his prices down from his website and not allow people to his house to record.

For musicians, work and play often intermingle and it can be hard to tell which is which. A friend stopping by for a drink might play a song in progress. A casual jam session might turn into a night of serious recording. Art and commerce intermingle freely.

"All my friends are musicians," Burkette says, "and a lot of what we do isn't for money. I don't exactly know what they expect you to do if you can't have musicians over." Burkette said code enforcement officials wouldn't even positively affirm his right to record people at his home for free. (A public information officer declined to comment on Metro's enforcement practices, citing ongoing litigation.)

The Right to Record

The sweeping and vague nature of Nashville's client prohibition makes Nashville's home business restrictions legally problematic, says Diggs, the Institute for Justice lawyer.

Since the 1950s, the Tennessee Constitution has been held to protect peoples' right to earn a living and use their property as they see fit. For the government to put limits on that right, says Diggs, it has to show that there is a rational connection between the restriction and public health or safety.

Unlike parking or noise restrictions in a residential area, which can plausibly be linked to some sort of impact on one's neighbors, a flat ban on client visits is purely a restriction on private activity in a private home.

"It causes Nashville to enforce this law in situations where there's not any actual government interest," Diggs tells Reason. "Just the simple fact that you're having someone at your house for something that looks to the neighborhood indistinguishable from a plain old social visit" doesn't cut it, he says.

The ban on client businesses is further divorced from any public purpose by the way Nashville enforces the law, he says.

Nashville's combined city-county government, known simply as Metro, explicitly relies on a "don't ask, don't tell" policy to enforce its home business restrictions. Metro officials will not proactively seek out offenders to ticket, instead relying on a system of anonymous tips.

This means Metro doesn't go after people simply offering piano lessons in their living room, adding an element of restraint to the policy. But it also means that when Nashville's policy is enforced, it's done so in an arbitrary way, often at the behest of petty neighbors or potentially jealous competitors.

When being deposed as part of Shaw's lawsuit against the city, the Metro code enforcement official who ticketed Shaw estimated that 40 percent of the complaints she received were motivated by something other than righting the violation being reported.

"They get a little upset because the neighbor got a new car, or they get upset because the neighbor painted their house and maybe a little of the paint got on their fence. Or it's just people being people," she said.

Indeed, when Diggs appeared on a local Nashville call-in show to discuss Shaw's case, one caller identified himself as the person who had filed an anonymous complaint against Shaw, saying that he was motivated by frustration at having his own attempt at starting a home computer repair business thwarted by Metro code enforcement.

Pomeroy of the Nashville Musicians Association likewise notes that an anonymous complaint system could be weaponized in a hotly competitive music scene where almost everyone with a home studio is breaking the law.

"You could imagine a scenario where a competitor in the home studio business might turn in a competitor anonymously to try and harm their ability to do business…which seems like a very unjust situation," he says.

Diggs argues that the various elements of Nashville's ban on client visits—the attempt at regulating essentially private behavior within one's home, the arbitrary way the law is enforced, the carve-outs for specific business types (day cares and short-term rentals like AirBnb are allowed to have patrons on site)—add up to an unconstitutional infringement on his clients' basic rights.

In December 2017, the Institute for Justice sued Nashville on behalf of Shaw and Patricia Raynor, a hair stylist that had been cited by Metro for operating a single chair salon in her home. Their lawsuit is asking for the city's prohibition on client visits to be struck down.

Like a Bad Neighbor

The Institute for Justice's lawsuit is the latest effort to reform Nashville's restrictions on home studios, but it is not the first. There have been two prior attempts to change the law in the past decade, both of which failed for the same reason: the neighbors.

In 2011, Councilman Jameson introduced a bill that would legalize client visits for a long list of acceptable home businesses, including not just recording studios but photography, tutoring, one-chair salons, massage therapy, and a host of other activities.

Jameson's bill also came with a number of new regulations on home businesses to assuage the fears of neighborhood groups worried that their quiet residential street would be transformed into a bustling commercial corridor. Home businesses could only have clients over between 8 a.m. and 6 p.m., for instance. Only two clients could visit per hour, and no more than 10 clients could visit a home business in a single day.

The proposed ordinance also required that home businesses abide by all the normal residential noise and parking restrictions, that they not receive large deliveries at their home, and they not post signage for their business outside.

Yet even after extensive community meetings, public hearings, and amendments, Jameson's colleagues on the Metro council were not convinced any change to existing law was needed.

Instead, council members defended an idea that amounted to "don't ask, don't tell" for home businesses—as a way of protecting neighbors.

"I've got tons of small businesses," said one councilmember at a Metro Council meeting. "Down the street, there's a tutor. Farther down the street, there's a woman that teaches swim lessons. All these things technically may be against the law, but they don't bother anybody, nobody complains about it, and it works."

In the same meeting, another councilmember said, "The people that buy a piece of property in a residential, single-family zoned location, they have reason for doing that. They want to live in a neighborhood…opening this up is a disservice to people who want to just live in a neighborhood."

Jameson's bill was crushed in that meeting, with only 11 out of 40 councilmembers voting in favor of it.

Another attempt at reform, in 2012, was aimed solely at legalizing home recording studios.

That effort got a bit further, says Pomeroy, who worked closely with the bill's sponsor, Megan Barry, on a measure that would give home studio owners legal protection for their existing businesses without accidentally subjecting them to a whole host of new taxes and regulations.

Everything was going pretty smoothly, Pomeroy tells Reason, and he was optimistic that the bill would easily pass. Then, just a few days before the bill was going to be brought up for a final vote, Pomeroy got a call from Barry saying it was dead.

Barry told Pomeroy that the neighborhood associations had gotten wind of the legislation and had sprung into high gear to stop it. Angry residents had been calling Metro councilmembers all day demanding they stop musicians from taking over their neighborhood.

What support had existed for the bill evaporated. Rather than have the bill die on the council floor, Barry pulled it.

"That was really a drag," remembers Pomeroy. "What these neighborhood associations don't realize is that we're already here. We're already doing it. We're good neighbors. That's why they don't know about us."

Yet for many of Nashville's neighborhood advocates, the idea that there are hundreds if not thousands of extant home studios is hardly comforting.

"Is it OK if they just don't get caught? No, it is not. It's a use that was not envisioned for these residential areas," says John Stern, chairman emeritus of the Nashville Neighborhood Alliance, a coalition of neighborhood associations. "They've invested all this money into something they knew wasn't legal, so I don't know how much empathy one can give them."

For Stern, strictly residential neighborhoods offer unique benefits of community, tranquility, and safety that mixed-use areas just can't.

"I think relationships that develop in residential communities are some of the most important ones in our lives. It's the kids next door that our children play with. It's the older couple behind us," he tells Reason. "It's this daily interaction and the physical place where these bonds can be created."

Stern thinks reforming the city's laws to allow for things like home studios in residential neighborhoods would endanger those bonds. It would also be unfair, he argues, to the people who bought property in residential area with the expectation that it would in fact be residential. The change, he says, would be like putting "a size 12 foot into a size six shoe."

After being hit with the 2015 cease and desist letter, Shaw tried his own individual attempt at reform in December 2016, applying for what is known as a "specific plan" rezoning. In essence, this asks the Metro Council to carve out an exception in the zoning code for his property that would allow for his recording studio.

As part of the process, Shaw went around to all his neighbors asking them to sign a petition in favor of his studio, which 39 of them did. When his application came before Metro's Planning Commission, commissioners offered words of praise for his home studio as contributing to the city's thriving music scene.

Nevertheless, when it came time to vote on his application, the Metro's Planning Commission couldn't bring themselves to support it.

Past efforts at loosening home business restrictions failed because many officials thought they were too general and didn't account for the variation the city's neighborhoods. Shaw's request for rezoning failed for the opposite reason—Metro officials thought it was too specific.

"I had hoped that we might come up with some magical answer that would do more than just make this an ad hoc decision based on whether we like the story of the person who wanted the decision. We haven't been able to do that," said one commissioner at a February 2017 planning commission.

"As much as we've struggled with how do we keep the music in music city, I don't think we've come upon the tool yet," added another at the same meeting.

In essence, Metro's planning commissioners were arguing that if they assented to Shaw's request, they could soon be asked to rule on spot rezonings of any home businessowner who requested an exception, and do so without any real guiding principle of what exceptions they should carve out.

Metro's Planning Commission unanimously rejected Shaw's application in February 2017. The full Metro Council, which has the final say, shot down his request in October of that year.

The whole experience was surreal, says Shaw.

"It was pretty remarkable," he says. "[Planning Commissioners] were openly acknowledging that home studios were an integral part of the fabric and life blood of Nashville, that everyone knows that they exist, and that they're everywhere. They would even name drop some of the famous musicians that have home studios in Nashville!"

In one 2017 meeting, a planning commissioner mentions country singer Big Kenny, who he says has "a huge recording studio. He doesn't charge anybody. He makes music out of it. He doesn't have permission to do it." People all over the city, he says, "put the recording studios in. Then they ask for forgiveness."

As someone whose business was targeted by Metro, Shaw doesn't think much of the argument that the current "don't ask, don't tell" policy is a sensible compromise.

"That's total bullshit," he says. "You pour 20 years of your career into this and everything you got, but just know that at some point somewhere down the road if someone randomly pulls the rug out from everything you've done, sorry about that, that's just the way it is."

Shaw's business has taken a huge hit as a result of being forced to pull so much of his content offline, costing him not just money but also a hard-earned brand recognition that's crucial for pulling in clients. Burkette likewise has seen a lot of his business wither away, and he lives with the fear that even simple social gatherings of musicians at his house might incur Metro's wrath.

The one home studio owner Reason spoke with that managed to avoid this fate after being reported to Metro was Rachel McCann.

An architect by trade, McCann fell into the home recording business in much the same way Burkette did. As part of a major renovation of their home, she and her husband, both musicians, decided to add a studio in the basement.

"As these things go, you get going and you think well as long as we're doing this, we should do this next thing and it turned into more than we thought," says McCann. "A lot of friends who came over to see us and visit would say, 'Man, can I record here? This is awesome.' So we started letting people we know record in it, and taking money for it. And that's illegal."

Sure enough McCann soon got a letter from Metro demanding that she cease and desist her recording operations. Like Shaw, McCann sought a special rezoning of her home. Unlike Shaw, she asked that it be given historical landmark status (her home originally belonged to a prominent Nashville doctor), which would allow commercial activity to continue but also would place limits on the alterations that could happen to the property in the future.

For whatever reason, this compromise succeeded where Shaw's effort had failed, with the Metro Council voting in August 2018 to grant her home landmark status. Pending some required alterations, McCann will be able to continue with her recording business. She estimates that the process of getting a historic designation and bringing her studio up to code cost her $70,000.

As with Shaw and Burkette, objections to McCann having a studio in her home boiled down to objections about neighborhood character, something she, as an architect who also taught the subject for 25 years at Mississippi State University, finds offensive. Invoking the famed American urbanist Jane Jacobs, McCann argues that home businesses add life to residential neighborhoods.

"Our neighbors tutor, do framing, dogsit, work wood, and record music in their homes, and all of it adds to the vibrancy of the streets around us," she says. Critics of home businesses "brand themselves as neighborhood advocates, but they are terrible neighbors. They suspect everything, want to control everything, and ban any commercial activity."

Shaw's lawsuit is still winding its way through the courts, and he says he's hopeful that it will secure for him the right to go back to making music in his home. "I would like to see this change for everyone in Nashville, to be allowed to work out of their home studio if they can," he says. More than that, Shaw hopes that his lawsuit will "keep a legendary music scene alive and well going into the future."