The Boys From the County Hell, a raucous Irish party band, are perennial favorites at The Harp, the expansive pub at West 44th and Detroit on the western edge of Ohio City. But mention the band's name to nearby residents, and it's like lighting a fuse. The group's performances on The Harp's outdoor patio this year have led to a neighborhood spat that is now in Common Pleas court.
"I've had music for 13 years," says Harp owner Karen O'Malley, who opened in 1999. During that time she's featured a mix of Irish music, blues, and singer-songwriters, both indoors and out, three nights a week.
But according to city code, she'd been doing it illegally. So earlier this year, she decided to go to Cleveland's Board of Zoning Appeals (BOZA) to seek a zoning variance and become legal.
"She went through the process," says Ward 3 Councilman Joe Cimperman. "She did the right thing."
The "right thing" included a well-attended May 24 meeting of the Franklin Block Club, at which O'Malley and her supporters spoke about what a great business they run. Neighbors agreed for most part, but some testified – in tears – that the noise makes them want to move. Even block club Chairman Bill Merriman, while saying "the Harp has done marvelous things at this wonderful lakefront location," admitted he sometimes hears the music at his home over a quarter-mile away.
"Entertainers such as The Boys From the County Hell have failed to exercise restraint," he said in his letter to BOZA.
A few weeks later, some 60 people packed the BOZA hearing at City Hall. O'Malley's supporters talked about how she'd transformed a corner gas station that had attracted drug dealers and prostitutes into a neighborhood gathering place, and the charity benefits she sponsors. They pointed out the taxes she pays, and offered petitions with hundreds of signatures and letters of support. (One claimed that the quality of the food would diminish if no live music was offered.)
Clinton Avenue residents like Julie Kurtock and Lucy Clinton testified that they'd like to get some sleep. "It's like SurroundSound," said Kurtock. "You can hear the thumping with the windows closed."
Much of the discussion centered on the fact that The Harp offers outdoor music only a few times a year, typically on St. Patrick's Day and holidays like the Fourth of July, when there's a lot of other noise in the city. But neighbors feared that a zoning variance would make it a regular occurrence. Those fears seemed to be confirmed a few weeks later, during The Harp's July 14 Harpfest, when Kurtock's kitchen was rocked by the thumping of The Boys From the County Hell until 11:30 p.m.
In spite of the objections, the Appeals Board granted The Harp a variance to have music three days a week, indoors or out. Board members talked more about the warm feelings toward O'Malley and her business than the legal issues involved.
But Kurtock would not let those legal issues go, filing a lawsuit against the city and The Harp that asks to have the ruling overturned. She declined to speak to Scene, referring questions to her lawyer, Alan Rapoport.
"The Harp's case consisted of a bunch of testimony that they have a great establishment, and I don't think Julie debates that," he says. "But zoning requires a longer-term perspective. One has to consider not only the present occupants, but all future occupants. What was granted is a use variance, which stays with the land, Treating this as matter that concerns only one owner doesn't benefit long-term development."
And the ramifications of the variance extend beyond that particular site, Rapoport notes.
"Another business might want to open up across the street tomorrow, and they might say, 'The Harp can do it, why can't we?'" he says. "You can't say, 'Well, we like the Harp, but we don't like you.'"
Cimperman feels the entire controversy could have been avoided if the process of updating the city's antique entertainment code had not been derailed last year. "If we had the new code, this wouldn't be a problem," he says.
For several years, Cimperman spearheaded a task force of citizens and city officials that worked on revising the 1920s code, under which all live outdoor music is illegal in the city without a specific variance. A new code was ready to go to Cleveland City Council for consideration last spring when a handful of musicians misread its provisions, which they thought would make live music illegal. In the ensuing controversy, the proposed law got shelved.
The new code would have mandated input from neighbors within 500 feet. (The current code just suggests it, as far as practicable.) It would also have provided for a "conditional use" permit, which is less permanent than a variance and could be revoked if a business violated the terms attached to it.
"Variances are property rights, while conditional use permits are what it sounds like — use permits," says Tremont resident Henry Senyak, who was on the task force that worked to revise the entertainment code.
He agrees with Cimperman that with the new code in place, much of the tension between The Harp and its neighbors would have been defused.
"The new laws included a set of protocols where if [a business] negatively impacted or became a nuisance, its conditional use permit would be revoked, whereas a variance stays with the property for life," explains Senyak.
For now, Kurtock and her neighbors can only look to a favorable court decision – or more likely, the arrival of cold weather – for relief.
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