Loading...
4 Home Occupation OrdinanceCITYOF 690 City Center Drive, PO Box I47 Chanhassen, Minnesota 55317 Phone 612937.1900 General Fax 612. 937. 5739 Engineering Fax 612937,9152 Public Safety Fax 612. 934.2524 Web www. ci. chanhassen, mn. us MEMORANDUM TO: Planning Commission FROM: Cynthia Kirchoff, Planner I DATE: December 29, 1999 RE: Home Occupation Ordinance Issue Paper SUMMARY Staff receives numerous complaints on outdoor storage and/or additional traffic associated with home-based businesses. The City regulates home occupations, however, some gray areas exist in the interpretation of the ordinance. That is, if it is not specifically stated, is the business activity permitted? The purpose of this memorandum is to offer an overview of the issues relating to home occupations and recommend amendments to the ordinance. BACKGROUND Although zoning has only existed since the turn of the century, its impacts are profound and far-reaching. Zoning originated to protect the value of the single- family home. The logic was, in order to protect its value, all other non-residential uses must be located as far away as possible, so distance is the key. This included two-family dwellings and apartments. Thus, all uses were segregated. Two- family homes were separated from single-family homes and the comer grocery store was relocated to the arterial roadway. Ultimately, zoning altered a functioning way of life in some older urban areas and created traffic problems in the outlying suburbs. For instance, Mrs. Smith can no longer operate a hair salon in the basement of her home because it violates the home occupation ordinance. The salon must be located in a business district, perhaps only a car ride away from home but more likely a 45-minute commute. Local governments attempt to mitigate the impacts of a small business in a residentially zoned district by adopting a home occupation ordinance. Issues such as the types of businesses permitted and prohibited, the number of non-resident employees and the hours of operation are typically regulated. Many of the ordinances are out of touch with today's economy and lifestyles. History of our zoning ordinance The City adopted its first zoning ordinance in February of 1972. This rather short document, only 23 pages, addressed regulations for various zoning districts, The Cit~ o£Chanhassen. A erowin~ community wit3 clean ]a~es, ,?uaL/tv sc3ovh, a charming downtown, thrivin¢ businesses, and beautiful barks. A great a/ace to live, work. and olav. Planning Commission Home Occupation Issue Paper December 29, 1999 Page 2 general regulations (e.g., signs, accessory buildings, etc.), non-conforming uses, variances and conditional use permits. A specific home occupation ordinance was not included, but the following definition was: "Home occupation is any occupation or profession carried on by a member of the immediate family residing on the premises in connection with which there is no display that will indicate from the exterior that the building is being utilized in whole or in part for any purpose other than that ora dwelling. There shall be no commodities sold upon the premises and no person employed therein other than a member of the immediate family residing on the premises or domestic'servants: and no mechanicalor electrical equipment shall be used except such as is normally used for purely domestic or professional purposes. No accessory building shall be used for such home occupation. Clinics, hospitals, barbershops, beauty parlors and animal hospitals are not home occupations." In 1983, the zoning ordinance was amended to allow home occupations in the residential and planned unit development districts. The next year, the ordinance was amended to allow contractors' yards as conditional uses in the R-lA district. In 1989 this amendment was repealed. A major zoning ordinance amendment took place in 1986. A home occupation ordinance was included in this revised document and has remained virtually unchanged in 13 years, with the exception of one amendment. In 1995 the home occupation ordinance was amended to prohibit contractors' yards as home occupations. The issue with the existing ordinance is that it permits some occupations and prohibits only one. Therefore, the ordinance is both inclusive and exclusive. It is also contradictory. For instance, it prohibits the use of an accessory structure yet it permits cabinet making. It is uncommon for one to build cabinets in a dwelling unit. Issues Associated with Home Occupations The City of Chanhassen does not require a license for home occupations, therefore, we are not aware of the business until a resident brings it to our attention. Hence, the City may not be aware of the business until it is fully established and becomes a nuisance. Generally, the ~zoning ordinance is enforced on a complaint basis. If a neighbor notices additional traffic or outdoor storage staff usually receives a telephone call. Staff inspects the property and drafts the property owner a letter indicating any code violations. Staff receives the greatest number complaints about contractor's yards. Contractor's yards are defined as any of use of land where vehicles, equipment, and/or construction materials and supplies commonly used by building, excavation, roadway construction, landscaping and similar contractors are stored or serviced..d contractor's yard includes both areas of outdoor storage and areas confined within a completely enclosed building used in conjunction with a contractor's business. Typically, the complaints involve materials or equipment being stored or parked in a driveway. Planning Commission Home Occupation Issue Paper December 29, 1999 Page 3 Technological and lifestyle changes mean more people can work from the home. Although a home office is permitted under the ordinance, a substantial number of delivery trucks and visitors/clients will create additional traffic, thus disturbing the neighbors (See Attachments 2-4). Purpose of a Home Occupation Ordinance A balance must be established between rights of both property owners. That is the purpose of a home occupation ordinance. It allows the incubation of a small business, yet protects the integrity of the neighborhood. In the following sections, staff attempts to review the issue associated with the home occupation ordinance and make recommendations for modifications. ANALYSIS Home occupation ordinances are essentially borne out of the same mold. However, they still are drafted and interpreted differently. The following section demonstrates the differences. Definition The definition of an item in the zoning ordinance may serve the purpose of a broad overview or may offer more specifics. Defining a home occupation is just as important as the ordinance because it may not address every occupation. A definition may provide additional insight not explicitly stated in the ordinance text. The following are definitions from various municipalities: "Any activity carried out for gain by a resident and conducted as a customary, incidental, and accessory use in the resident's dwelling unit." "A home occupation is defined as any business, occupation, profession or commercial activity that is conducted or petitioned to be conducted from property that is zoned for residential use." (Blaine) "Any occupation of a service character which is clearly secondary to the main use of the premises as a dwelling, and does not change the character thereof or have any exterior evidence of such secondary use." (Eden Prairie) "Any activity carried out for gain by a resident conducted as an accessory use entirely within the resident's dwelling unit, employing only the inhabitants thereof without the use of a sign to advertise the occupation, without offering any commodity or service for sale on the premises and which does not create obnoxious noise or other obnoxious conditions to abutting residential property such as odor, increased traffic, smoke, or electrical interference. Specifically excluded is the storage of display of merchandise not produced by such home occupation, any activity involving any building alterations, window display, construction features, equipment, machinery or outdoor storage, any of which is visible from off the lot on which located." (Piano, TX) Planning Commission Home Occupation Issue Paper December 29, 1999 Page 4 "A business or profession which is customarily carried on in a dwelling unit (or in a building or other structure accessory to a dwelling unit) by a member of the family residing in the dwelling unit. Home occupations shall be clearly incidental and secondary to the use of the dwelling unit for residential purposes, and shall conform to the regulations and requirements of Section 80.1001.1-2 of this ordinance. Receipt of mail and the making and receiving of telephone calls and other routine office work done exclusively by the dwelling unit resident are not prohibited and do not constitute a home occupation. If, however, the business involves storage of materials, goods, equipment or supplies other than ordinary office supplies or generates any traffic or deliveries other than mail, it is a home occupation." (Canandaigua, NY) "A home occupation is an accessory use of a dwelling unit that is: (A) used for gainful employment that involves the provision, assembly, processing or sale of goods and/or services; and (B) Incidental and secondary to the residential use of the structure and does not change the essential character of the dwelling unit; but (C) Excludes uses that provide shelter or lodging to persons who are not members of the family residing in the dwelling unit as defined in Chapter 18, 'Definitions,' of this ordinance." (Evanston, IL) "A 'home occupation' is an occupation or profession which is clearly incidental and secondary to the use of the dwelling unit for residential purposes and which is carried on by a member of the family residing in said dwelling unit." (Niskayuna, NY) "Home occupation means a business or enterprise conducted in a dwelling and incidental to the principle residential use whether conducted for profit or not for profit." (Stillwater, MN) In reviewing the definitions, several terms or phases are consistently mentioned: · customary, incidental · secondary to the main use of the premise as a dwelling · does not alter character of the residential neighborhood · carried out for gain by a resident · business, occupation, professional or commercial activity that is conducted from property that is zoned for residential use According to the majority of ordinances, a home occupation should be incidental and secondary to the main use of the property. If it becomes a primary use of the property, the business should be relocated to a more appropriate business or industrial zoning district. Currently, our definition of home occupation is as follows: "...an occUPation, profession, activity or use that is clearly a customary, incidental, and secondary use of a residential dwelling unit and which does not alter the exterior of the property or affect the residential character of the neighborhood." The definition addresses all issues except the activity is "carried out for gain by a resident." Planning Commission Home Occupation Issue Paper December 29, 1999 Page 5 Perhaps the definition should be amended as follows: "...an occupation, profession, activity or use carried out for gain by a resident that is clearly a customary, incidental, and secondary use of a residential dwelling unit and which does not alter the exterior of the property or affect the residential character of the neighborhood." Ordinance Contents Home occupation ordinances are usually organized around the following principles: permitted uses, prohibited uses and performance standards. The following table depicts the format of 11 home occupation ordinances. TABLE 1 Suburban Home Occupation Ordinances Specify Specify Performance Purpose or Permit Permitted Prohibited Standards Intent Required Community Uses Uses Statement Andover X X X Special use permit Blaine X X CUP, depending on use Bloomington X X X CUP, depending on use Burnsville X Chaska X Cottage Grove X X X Eden Prairie X Edina X X X Mankato X X Maple Grove X Minnetonka X Shakopee X X X CUP CUP, depending on use Administrative permit Permitted Uses Many communities, including the City of Chanhassen, list permitted home occupations. The most common permitted uses are dressmaking/tailoring, architect/landscape architect, teaching service, day care, sales representative, word processing service and photography. The problem associated with specifying permitted uses is that it may exclude a use that may be appropriate in a residentially zoned district. It would be easier to simply note the prohibited uses. Furthermore, some uses listed are outdated (e.g., millinery service or hat making) because the economy or lifestyles have changed. Planning Commission Home Occupation Issue Paper December 29, 1999 Page 6 Prohibited Uses The most common prohibited uses are barbershop/beauty parlor, hospital/clinic, contractor's yard, repair service, funeral home, restaurant, antique or gift shop, professional office, kennel, massage/health club, medical and dental office, landscaping service and music and dance school. Many of these uses created traffic problems or would quickly become the dominant use of the dwelling. Foremost, the business activities listed are not serving just the surrounding community or neighborhood many are regional, thus creating additional traffic or activity. Also, some uses that are specifically prohibited, if conducted in accordance with the ordinance, may not disrupt the neighboring properties. Performance Standards Performance standards are by definition, a set of criteria relating to certain characteristics that a particular use may not exceed. These standards may include limiting the occupation to one non- resident employee, the hours of operation and the area in the home occupied for the business. This is the best method for restricting home occupations. The City of Chanhassen limits the hours of operation, the amount of traffic and parking, the number of nonresident employees and prohibits retail sales. Purpose or Intent Statement A purpose or intent statement serves to express the objective of the ordinance. The intent in most cases is to protect adjacent properties from the business or activity. Bumsville's purpose statement is "The purpose of this Chapter is to maintain the character and integrity of residential areas and to provide a means through the establishment of specific standards and procedures by which home occupations can be conducted in residential neighborhoods without jeopardizing the health, safety and general welfare of the surrounding neighborhood." Chaska's intent statement is as follows "It is the intent of this Section to provide for those customary home occupations which will not be detrimental to the desired low intensity residential environment." The City of Chanhassen does not have an intent or purpose statement. Permits A few of the communities surveyed require a permit to operate some home occupations. For instance, Andover requires a special use permit for occupations conducted in a garage or accessory structure such as cabinet making, woodworking, repair services and similar uses. Cottage Grove requires a conditional use permit for all home occupations. If a conditional use permit is required, enforcement policies must be established. Typically, CUPs are reviewed on a complaint basis. Staff would review the conditions of approval of the Planning Commission Home Occupation Issue Paper December 29, 1999 Page 7 permit and determine if the property owner is in compliance. This would take the time of staff as well as the Planning Commission and City Council. Proposed Amendments Staff has prepared amendments to the existing ordinance. DIVISION 3. HOME OCCUPATIONS See. 20-976. Compliance. Purpose. A home occupation may be established and conducted only in accordance with this division. The purpose of this ordinance is to regulate home occupations in residential zoning districts to ensure they are incidental to the primary residential use of the property and to establish standards that intend to ensure compatibility with other permitted uses and maintain the character of the residential neighborhood. Sec. 20-977. Subordinate use. The use of a dwelling unit for any home occupation shall be clearly incidental and subordinate to its residential use. Not more than twenty-five (25) percent of the floor area one (1) floor of a dwelling unit shalI be used in the conduct of the home occupation. No garage or accessory buildings except accessory agricultural buildings existing on February 19, 1987 shall be used for' any home occupation. Sec. 20-978. Occupations permitted prohibited. (a) The following home occupations arc permitted: (1) Professional scrviccs such as architects, cnginccrs, attorneys, office, real cstatc agents, insurance agents, and computer pfogrammcrs, secretarial services, and manufacturer's representatives. (2) Drcssmaldng, sewing, and tailoring. (3) Painting, sculpturing or writing. (~) Ilome crafts such as model malting, rug weaving, lapidary work, pottery and cabinet making. (5) Tutoring services (c.g., piano teacher). (-6) (1) Contractors' yards/landscaping businesses arc prohibited for home occupations. Sec. 20-979. Outside appearance. Planning Commission Home Occupation Issue Paper December 29, 1999 Page 8 The home occupation shall be conducted entirely within a fully enclosed building. No change in the outside appearance of the building or land, or other visible evidence of the conduct of the home occupation shall be permitted. Outdoor storage of anything is prohibited in connection with a home occupation. Sec. 20-980. Hours of operation. The hours of operation of any home occupation shall be limited to between 8:00 a.m. and 8:00 p.m. Sec. 20-981. Use of equipment. No mechanical or electrical equipment requiring the use of voltage in excess of two hundred twenty (220) volts single phase shall be used in the conduct of a home occupation. Sec. 20-982. Traffic and parking. No traffic shall be generated by any home occupation in greater volume than would be normally be expected in a residential neighborhood, and no home occupation involving the need for more than three (3) parking spaces for the occupants and visitors shall be permitted. Adequate off-street parking facilities required to service the home occupation shall be provided on the premises, but no such parking facilities shall be established within any required front or side yard, except upon an established driveway. Exterior parking of trailers, Bobcats, landscaping equipment, cement mixers, and other similar types of equipment used in the home occupation is prohibited. Parking of vehicles in excess of 22 feet in length is prohibited. Sec. 20-983. Retail and wholesale sales prohibited. No commodities, merchandise or supplies shall be sold or offered for sale upon or from the premises, whether at retail or wholesale. Sec. 20-984. Nonresident employee. Only one (1) nonresident of the dwelling unit may be employed upon the premises of a home occupation. Sec. 20-985. Commercial vehicles. No commercial vehicles in excess of nine thousand (9,000) pounds gross weight shall be used in connection with the home occupation or parked on the property. Planning Commission Home Occupation Issue Paper December 29, 1999 Page 9 RECOMMENDATION Staff requests direction to draft an amendment to the home occupation ordinance based upon the information discussed in this memorandum. At a later date,' a public hearing would be held before the Planning Commission and your recommendation would be forwarded to the City Council. ATTACHMENTS 1. Home Occupation Ordinance 2. "Home Occupations and Zoningf New Hampshire Town and City, July-August 1988 3. "When Home is Where the Business is," Zoning News, December I99I 4. "Home Occupations as Accessory Uses," Zoning News, January 1996 g:\plan\ck~zoning ordinance amendments\home occupation issue paper, doc § 20-959 CHANHASSEN CITY CODE Sec. 20-959. Explosives. Any use requiring the storage, use or manufacturing of products which could decompose by detonation shall be located not less than four hundred (400) feet from any R District line provided that this section shall not apply to the storage or use of liquefied petroleum or natural gas for normal residential or business purposes. (Ord. No. 80, Art. VI, 1(6-1-9), 12-15-86) Sec. 20.960. Surface water management. All development shall comply with the city's surface water management plan dated February 1994, which is incorporated herein by this reference. (Ord. No. 227, § 1, 10-24-94) Secs. 20-961--20-975. Reserved. DMSION 3. HOME OCCUPATIONS Sec. 20-976. Compliance. A home occupation may be established division. (Ord. No. 80, Art. VI, § 8, 12-15-86) and conducted only in accordance with this Sec. 20-977. Subordinate use. The use of a dwelling unit for any home occupation shall be clearly incidental and subordinate to its residential use. Not more than twenty-five (25) percent of the floor area of one (1) floor of a dwelling unit shall be used in the conduct of the home occupation. No garage or accessory buildings except accessory agricultural buildings existing on February 19, 1987 shall be used for any home occupation. (Ord. No. 80, Art. VI, § 8(6-8-1), 12-15-86) Sec. 20-978. Occupations permitted. (a) The following home occupations are permitted: (1) Professional services such as architects, engineers, attorneys, office, real estate agents, insurance agents, and computer programmers, secretarial services, and manufacturer's representatives. (2) Dressmaking, sewing, and tailoring. (3) Painting, sculpturing or writing. (4) Home crafts such as model making, rug weaving, lapidary work, pottery and cabinet making. (5) Tutoring services (e.g. piano teacher). Supp. No. S 1238 ZONING § 20-979 (6) Contractors' yards/landscaping businesses are prohibited for home occupations. (Ord. No. 80, Art. VI, § 8(6-8-2), 12-15-86; Ord. No. 240, § 24, 7-24-95) Sec. 20.979. Outside appearance. The home occupation shall be conducted entirely within a fully enclosed building. No change in the outside appearance of the building or land, or other visible evidence of the conduct of the home occupation shall be permitted. Outdoor storage of anything is prohibited in connection with a home occupation. (Ord. No. 80, Art. VI, § 8(6-8-3), 12-15-86) Supp. No. 8 1238.1 ZONING § 20-1001 Sec. 20-980. Hours of operation. The hours of operation for any home occupation shall be limited to between 8:00 a.m. and 8:00 p.m. (Ord. No. 80, Art. VI, § 8(6-84), 12-15-86) Sec. 20-981. Use of equipment. No mechanical or electrical equipment requiring the use of voltage in excess of two hundred twenty (220) volts single phase shall be used in the conduct of a home occupation. (Ord. No. 80, Art. VI, § 8(6-8-5), 12-15.86) Sec. 20-982. Traffic and parking. No traffic shall be generated by any home occupation in greater volume than would normally be expected in a residential neighborhood, and no home occupation involving the need for more than three (3) parking spaces for the occupants and visitors shall be permitted. Adequate off-street parking facilities required to serve the home occupation shall be provided on the premises, but no such parking facilities shall be established within any required front or side yard, except upon an established driveway. (Ord. No. 80, Art. VI, § 8(6-8-6), 12-15-86) Sec. 20-983.. Retail and wholesale sales prohibited. No commodities, merchandise or supplies shall be sold or offered for sale upon or from the premises, whether at retail or wholesale. (Ord. No. 80, Art. VI, § 8(6-8-7), 12-15-86) Sec. 20-984. Nonresident employee. Only one (1) nonresident of the dwelling unit may be employed upon the premises of a home occupation. (Ord. No. 80, Art. VI, § 8(6-8-8), 12-15-86) Sees. 20-985--20-1000. Reserved. DIVISION 4. ANIMALS Sec. 20-1001. Keeping. The following animals may be kept in the city: (1) Household pets are an allowed use in all zoning districts. (2) Horses in the A-l, A-2, RR and RSF zoning districts in accordance with chapter 5, article III. (3) Farm animals are an allowed use on all farm property. Farm animals may not be confined in a pen, feed lot or building within one hundred (100) feet of any residential dwelling not owned or leased by the farmer. 1239 Home occupations and zoning Time to Modernize an Outdated Approach by Michael Donouan, Esq. Home occupations are a growth industry in our high- tech society. According to a recent TIME article, home pro- fessionals now total 9 million, with the number growing at a rate of 15% per year. By 1990, 11.4% of the U.S. work force will be working in the home. Computers and telecommunications advances have broadened the spectrum of home business activity, which once was limited to physicians, piano teachers, writers and the like. Engineering specialists, desktop publishers, word processors, bookkeepers, stockbrokers, graphic designers and "management consultants" of all kinds now work at home. Further, the evolution of "telecommuting" -- i.e. working at home while on a corporate payroll -- means that home occupations are no longer strictly the realm of the self-employed. This trend in our economy adds further complexity to an area of planning and zoning that has always been troublesome for local officials. Most zoning regulations governing home occupations evolved from language crafted more than 50 years ago when "customary. home occupa- tions'' of the time Were permitted in residential districts in order to make the then radical idea of zoning palatable. Since then, local officials have constantly struggled to determine what is (or what is not) an allowable home oc- cupation. Numerous disputes Over local decisions have made home occupations'-~ne of the most frequently litigated zoning issues. Some Legal Guidelines As a result, a number of relatively clear legal guidelines apply to home occupation questions. Local officials can avoid unnecessary conflict by understanding and correctly applying these principles. The following are provided with the caveat that the precise wording of the local zoning or- dinance may make them inapplicable in some cases. 1. Home occupations must be performed in the home. This rule seems simple enough to understand -- but it often is not. A frequent conflict involves the sole- proprietor building contractor who lists his home as his business address and then claims to have a home occupa- tion. A Concord case about a roofing contractor is often cited in treatises as a lead case on this matter [see Perron t: City of Concord, 102 NH 32 (1959)]. In affirming that home occupations must be performed in the home, the NH Supreme Court observed: "You don't take somebody's roof home and work on it:' 2. Large commercial vehicles cannot be parked on a residential lot. This rule is difficult for many to accept, but the law is quite clear. Unless a zoning ordinance ex- plicitly provides otherwise, one cannot park most large commercial vehicles on a residentially zoned lot -- either under the guise o~' a "home occupation" or as accessory to a dwelling. The cases do allow one to park smaller vehicles such as pick-up trucks at the home. However, even in a garage, larger commercial vehicles such as road graders, oil delivery trucks, backhoes, bulldozers, tractor- trailer cabs and dump trucks have all been prohibited by the courts. 3. A business office is not a home occupation. Case law has developed a distinction between a "business of- rice" and the "professional office" allowed as a customary home occupation by most zoning ordinances. The rule is that unless the ordinance explicitly allows a particular type of office (or implicitly allows it through the words "such as") most business offices will not be allowed. Ex- amples include contractors, interior decorators, realtors and insurance agents. 4. Realtors are not professionals. Contrary to their advertising claims, realtors are not professionals in the eyes of the Court. If a zoning ordinance merely allows "pro- fessional offices" but does not explicitly provide for real estate offices, one will not be allowed. Interestingly, one of the cases upholding this premise in New Hampshire was brought by former State Planning Director Mary Louise Hancock [See Hancock v. City of Concord, 111 NH 413 (1971)]. The same principle applies to insurance agents and other self-proclaimed professionals. The Need to Modernize Regulations The evolving trend towards both an increased amount and a wide diversity of home businesses will ultimately conflict with the outdated "customary home occupations" provisions of zoning ordinances and the court-imposed principles flowing from them. Many of the emerging home occupations of today fit the prohibited business office mode rather than the professional office mode. Yet, paradoxical]y, they may be much less intrusive to a neighborhood than some "customary" home business. For example, an import broker of specialty food products who buys and sells by telephone, manages by computer and seldom has more than a van-load of high.turnover in- ventory on.hand would be held to be a prohibited business office under most cuxrent home occupation provisions. Fur- thermore, the van might be prohibited, with or without the home office, under the commercial vehicles rule. However, such a home business would be far less disrup- tive of neighborhood tranquility than the office of a busy physician generating patient traffic and on-street parking problems to the neighborhood. In order to avoid senseless legal conflict that may end up thwarting desirable, unobtrusive economic growth, municipalities should modernize their home occupations restrictions. Reliance on the term "customary home oc- cupations'' and attempts to define it should be eliminated in favor of a set of explicit performance criteria designed to measure a home business against its impact on the (Continued on page 38) New Hampshire Town and City~July-August 1988 19 HOME OCCUPATIONS (Continued from page 19) residential environment. Performance criteria should in- clude the typical limitations on the number of non-family employees, parking and floor space found in some or- dinances as well as new criteria limiting trip generation, truck deliveries, on-premise inventory, on-premise business vehicles and exterior storage. Variations in criteria that m e sensitive to different residential densities should also be considered. With such an approach, the rules will be clear and not tied to an elusive, ever-changing concept. Administrative frustration and legal disputes will be reduced. Most ira- portantly, the exercise of developing the performance criteria will allow local planners to properly balance the right of individuals to use their home for meaningful economic pursuits against the right of neighbors to residential tranquility. · AUTHOR NOTES: Michael Donovan is an attorney and planning consultant specializing in land use matters. He is a former planning director and city manager of Berlin, NH. Site Planning/Engine®ring Highway Engineering Traffic Impact Studlel Surveying and Mapping Wet.er and Waltewatnr Engine®ring WRIGHT-PIERCE ENGINEERS 170 Commerce Way Portsmouth, NH 03801 (nO3) 438-0174 09 Main Street Top..ham. ME 04088 (20,) 725-872 t · ,:'~ GONITE:" ~1 ~; RESToRATIoli' -. AND SEALING ~. METHODS PhESSURE GROUTING DESIGN MIX PORTLAND CEMENT a CHEMICAL~ GROUTS CHEMICAL WATERPROOFING SOIL SOLIDIFICATION CRACK "INJECTION --. GUNITE & GROUTING CORP." EVERETT, MA 02149., _p~ 145. RESTORATION AND NEW CONSTRUCTION Restore Deteriorated Concrete Reface Brick and Block Refractory Applications Thin Shell Construction CONSOLIDATION, VOID FILLING AND SEALING ACTIVE LEAKAGE Pressure Injection of Polymer Base Materials to Consolidate Soils and Stabilize Structures "WELDING" CONCRETE AND MASONRY Pressure Injection of Specially Fcrmulated 100% Solids to Weld Structural Cracks and Voids Into A Restored Unit 38 New Hampshire Town and City~July-August 1988 (603) 224-2000 /.L ~_. ~ Prof cssiotml_ ~/.~sc)cl'a riot~ ACCOUNtAntS & ~umtoas SUITE 3-1 2 CAPITAL PLAZA CONCORD, NEW HAMPSHIRE Recognized Leaders in Municipal Accounting and Auditing in New Hampshire. THE SYVERTSEN CORPORATION CONTRACTORS FOR: MECHANICAL a ELECTRICAL · FIRE PROTECTION MANCHESTER, NEW HAMPSHIRE TELEPHONE (603) 625-5782 Put New Hampshire's recognized bond counsel to work for you. Initial consultation is free, Call: Attorney David H. Barnes 669-1000 Devine, Millimet, Stahl & Branch PROFESSIONAL ASSOCIATION · A'I-FORNEY'S AT LAW l l 1 Amherst Street, Manchester, Nil 0310.5 DECEMBER 1991 AMERICAN PLANNING ASSOCIATION When Home Is Where the Business Is Before the Industrial Revolution, it was common to work in one's home, and most neighborhoods were mixed-use dis- tricts. Times have changed since Renaissance artisans made shoes on the first floor and ate and slept in the back or upstairs. The old practice of traveling a few feet to work, however, is not only still alive but gaining in popularity. Office workers are using personal computers and modems to stay out of traffic --... jams and the early morning scramble for breakfast and '"--... clean socks. Artisans are still at home sewing and '--. repairing clothing, baking bread, or building cabinets. Even traveling salespeople may use their homes to set up appointments and update their books. Workers producing from dens and basements can help to solve some knotty land-use problems. For instance, they are staying off the highways during peak hours, contributing to neither traffic tie-ups nor auto pollution. Instead, they boost the daytime population in areas that might need a few more eyes on the streets. Finally, home workers often provide services, such as day care or dental care, that neighbors may be glad to have nearby. Drawbacks '~'--. But home occupations create problems, too. Some generate a steady flow of traffic, /~ causing parking problems and endangering children playing in the area. If too many home / businesses require signs, or if proprietors store goods outdoors, the area's residential nature may change to that of a commercial or transitional zone. An operatioh that began as an asset to the neighborhood could outgrow its space before the owner realizes it. For instance, expansion of a neighborhood catering service could mean more delivery trucks, parking spaces for clients and employees, and extra demands on the utility system. Local governments may also be concerned about losing tax dollars because property in commercial districts is taxed at a higher rate than that in residential areas. This raises the question of fairness to other merchants and business owners in the community. An owner who does not have to pay extra rent or property taxes has an advantage over competitors in a commercial district. In Canada, tax laws allow local governments to tax the portion of a house devoted to a business at a higher rate than the rest of the building. Definitions and Permits Plano, Texas, defines a home occupation as "any activity carried out for gain by a resident which results in the manufac- ture or provision of goods and/or services and is conducted as an accessory use in a dwelling unit." The Mount Prospect, Illinois, ordinance says, "A home occupation may include a for-profit home business or a home office for a resident who may work for another employer, or contract or consult with another company or individual." The term "cottage industry" is occasionally used, but can be confusing since it implies a bigger enterprise than most home occupations. Some municipalities control home occupations by requiring permits. Bellevue, Washington, has three types. Class 1 permits are for occupations with no external indications that the building is more than a home. Class 2 pe. rmits cover service businesses with external indicators such as signs or marked delivery vans. Class 3 permits cover family day care centers. People who want a class 1 permit merely register with the city, but other permits require an approval process. The Schaumburg, Illinois, ordinance requires a special permit only when there will be more than one home occupation on the site, or if the business involves food handling or the care and treatment of humans or animals. The ordinance requires that all home occupa- tions be inspected yearly for compliance. Lists Versus Standards All ordinances restricting home occupations are intended to prevent them from becoming nui- sances. This is not easy because different occupations become nuisances in different ways. Some generate noise and no traffic, others generate traffic and noise but no fumes, and others are a problem only occasionally. The zoning administrator must write an ordinance that protects the neighborhood while being flexible enough to allow a myriad of appropriate home uses. For years, zoning administrators used the laundry list approach. Zoning codes named permitted occupations-- writing, typing, and selling insurance--and those not permitted--repairing autos, practicing medicine, or running a bed and breakfast. With the advances of technology and the unlimited imaginations of those who want to work at home, this method no longer works. Ordinances now set standards describing how large a business may be and how it will affect the neighborhood. Ordinances that combine both methods are primarily based on the standards. However, -~ ~ they are also likely to list several occupations that clearly have little or no impact. These might include telephone sales, free- lance writing, or data entry. Another list might cover problem occupa- tions, those that will not be permitted under any circumstances. This could include beauty parlors, dance studios, or mortuaries. Standards Ideally, an ordinance should be flexible enough to let an owner incubate a small business, but firm enough to push a full-fledged enterprise into a neighborhood commercial zone. One way to do this is to limit the percentage of space in the home that can be dedicated to a business. While this maximum is usually 25 percent, Plano, Texas, allows 20 percent, and Fairview Heights, Illinois, allows 25 percent up to 300 square feet of floor space. William Toner, in Planning for Home Occupations (PAS Report No. 316), points out that this limit on floor space can cause problems. For instance, children at a family day care center will probably be permitted in most of the house, and professionals might want to hold group meetings that take up a lot of space. In his report, Toner suggests ways of developing a time-space ratio. This could be hard to administer, however. Thus, it may be better for the zoning administrator to recog- nize the ordinance's purpose and make reasonable exceptions. Another common limit is on the amount and type of business-related material that may be stored. The home is not to be a warehouse, and neither the residents nor the neighbors should be exposed to the dangers of hazardous, flammable, or explosive material. Mount Prospect allows a home business owner to store up to 100 cubic feet of inventory indoors, about enough to fill a closet. Bellevue, Washington, like most other communities, prohibits any outdoor storage of materials. If the ordinance's primary concern is to protect a residential neighborhood from becoming a commercial district, the standards regarding a building's outside appearance are particularly important. Some ordinances, such as those from Bellevue and Mount Prospect, forbid signs and any other indications that a business is being conducted behind the front door. Other municipalities, such as Eau Claire, Wisconsin, limit the owner to one sign, no bigger than one square foot, mounted flush against the wall or visible through a window. The sign may not be illuminated. Plano prohibits alterations that detract from the building's residential nature. Schaumburg, Illinois, does likewise, and also prohibits an owner from building a separate entrance just to accommodate the needs of the business. Standards also usually limit the number of outside employees who can work in a home. A few ordinances, such as Eau Claire's, limit business employees only to immediate family members who live in the dwelling. A better way to write this would be to omit the mention of family members, limiting employees to members of the household, whether blood kin or not. This is more in keeping with the law's purpose and protects the administrator from having to define "immediate family." Other communities, such as Bridgewater, New Jersey, allow up to two employees, while Piano, Texas, allows only one. Piano also defines an employee as one who "receives a wage, salary, or percentage of profits directly related to the home occupation." A key concern with the ordinance should be to limit traffic and prevent residents from having to compete with business employees and customers for parking places. Besides limiting employees, this can also be done by limiting sales. It is probably impractical to forbid any sales from taking place at the residence. After all, any exchange of services for money may be considered a sale, and Avon salespersons are also in the business of selling. But the home should not become the local branch of the nearest department store. Piano solves this by barring the display of merchandise on the premises but allowing incidental sales. The guitar teacher may sell a workbook to a student, but she cannot open a music store. Piano also lets a business owner fill telephone orders and give customers Tupperware ordered at a party. Schaumburg permits the sale of goods produced on the premises. Zoning ordinances generally cover trucks, both those owned by the home business proprietor and delivery ve- hicles. Schaumburg is vehement in restricting deliveries: "There shall be no commodities sold or services rendered that require receipt or delivery of merchandise, goods, or equipment by other than a passenger motor vehicle or by parcel or letter carrier mail service using vehicles typically employed in residential deliveries. No deliveries by semi° tractor/trailer trucks are permitted." Plano prohibits trucks with business signs from being parked on the street or within 30 feet of the curb. Eau Claire says that business vehicles cannot be bigger than a pickup and must be parked off the street. Schaumburg and Plano require that parking needs be accommodated with off-street spaces or along the front of the lot with' the home occupation. These ordinances also specify that traffic shall not be increased beyond the amount normally generated in a residential area. This specification is vague and may be difficult to enforce. Zoning originated to protect residential areas from the pollutants and irritations of factories. Home occupation ordinances should continue this tradition by forbidding the use of toxic materials and by discouraging the home occupation from becoming a nuisance. The Fairview Heights, Illinois, ordinance states that there shall be no offensive noise, vibration, smoke, dust, odors, heat, or glare spilling over the property line. Mount Prospect also prohibits television, radio, and electrical interference, and fire hazards. Rural Areas The standards for home occupations in less populous areas should be less strict. Fewer neighbors feel the impacts of increased traffic, noise, or vibrations. An even more important reason for relaxing the rules in agricultural areas has to do with the local economy. Family farm owners, most of whom rely on supplementary income, may work at home in order to stay ahead of debts. Also, if the closest town is more than a few miles away, the rural home worker can provide necessary services locally. While most urban home occupation ordinances prohibit animal hospitals and kennels, this use is more appropriate in the country. Rural areas have enough space to accommodate the odors and noises, while allowing the animals enough room to exercise. East Earl Township, in Lancaster County, Pennsylvania, also.permits butcher shops, a dry goods store with a limited display area, and shops for metalworking, woodworking, and craft manufacturing. East Earl attaches a few standards, however. For instance, only one building may be used to house the business, and only 2,400 square feet of floor area may be devoted to the business. The business space must be separate from nonbusiness space in any building larger than 2,400 square feet. The ordinance prohibits outside storage of products, equipment, and supplies, and requires that the business owner live on the property. The ordinance also allows bed and breakfasts in single-family detached units. (For more information about bed and breakfasts, see Zoning News, December 1989.) Enforcement By definition, people working at home are hard to find. Rather than populating commuter trains and busy downtowns, they are tucked away in dens and workshops. Often, this is not a problem. If the primary purpose of the home occupations ordinance is to limit nuisances, an owner running such a quiet shop is probably in compliance with most of the standards. The most effective enforcement often comes from irate neighbors. Mrs. Jones, who has had it with the noise from Mr. Smith's woodworking tools, calls one city department after another until she reaches the zoning administrator, who informs Mr. Jones that there is a code and that he is in violation. Mr. Jones may be required to apply for a permit for his operation or, if he has a permit, to comply with the standards before it can be renewed. While this ad hoc method of enforcement probably works better than any other, there should be an effort to educate the public about home occupations, if only in the interest of good will between Mrs. Smith and Mr. Jones. Mount Prospect developed a flyer written in plain language that defines home occupations and lists the standards. It is available in the lobby of the city hall. Zoning administrators shouid also consider sending press releases to local newspapers and distributing pamphlets through civic organizations. C.K. Preservationists Play Their Trump Card Donald Trump's latest real estate deal has produced a firestorm of controversy in Palm Beach, Florida. The battle lines have been drawn over the New York developer's plans for Mar-a-Lago, a lavish Mediterranean-style castle built in 1927 by cereal heiress Marjorie Merriweather Post. Trump bought the castle and estate in 1985 for $5 million, in a deal much heralded at the time because Post had spent $7 million to build what is now viewed by many as a white elephant. Trump, now in financial straits, plans to recoup some of his losses by subdividing the 17 acres surrounding Mar-a-Lago and building eight luxurious single-family houses, which he hopes to sell for $5 to $7 million apiece. Both Trump and his advisers apparently failed to recog- nize the significance of the castle's status as a National Historic Landmark and have been taken aback by the formidable opposition mounted by the Palm Beach Land- mark Preservation Foundation. Although final approval of any development rests with the town council, the Preserva- tion Foundation makes strong recommendations that carry real weight. Palm Beach has a tradition of conforming to strict design guidelines and protecting its historic buildings. On August 14, the foundation disapproved the development on the grounds that Trump did not present a preservation plan with the development plan. The town council upheld the denial at its October meeting. In the meantime, Trump had submitted a different proposal for a planned unit development incorporating 10 single-family units. This plan has also been rejected because it was not accompanied by a preservation plan. Trump's attorneys, however, have stated that the request for a preservation plan is unusual and unnecessary. They have also noted that, since both development proposals comply with the zoning regulations, there is no legal reason to oppose them. Although they have threatened to sue, no legal action had been taken by mid-November. Despite a town council invitation to do so, Trump also has not submitted his plans in a more acceptable form. National historic preservation organizations have backed the local critics, who perceive a lack of concern by Trump for the historic and aesthetic importance of Mar-a-Lago. The National Trust for Historic Preservation has described the plan as "ill-considered and insensitive." But a small number of sympathizers point out that neither the state nor the federal government can bear the expense of supporting the castle, and the town would benefit from the increased tax base the development would create. With Trump already paying $300,000 yearly in property taxes, however, Palm Beach seems unmoved by such concerns. F.D. The Ongoing Battle of Gettysburg A zoning battle is brewing over proposed new developments near Civil War battlefields in Gettysburg, Pennsylvania. The biggest controversy is over a proposed shopping center that would interfere with views of the battlefields from the town of Benner's Hill--many of which remain virtually unchanged since 1863. Since a Wal-Mart discount store opened earlier this year, pressure from developers has grown. One developer has proposed a 320,000-square-foot shopping center that would abut the battlefield. Proposed for a 75-acre site, the Mark Development Company's Gettysburg Commons would feature 25 to 30 stores, a cinema, and 1,900 parking spaces. Some of it would fall directly within the 12,000-acre federally protected Gettysburg Battlefield Historic District, which encompasses the 6,000-acre Gettysburg National Military Park. According to a historic preservation official in Adams County, this development has not won approval. Gettysburg Borough and the surrounding townships have long been at odds over the nature and amount of develop- ment that should be permitted, with some municipal officials contending that the economy has suffered because of attempts to keep the park pristine. Developers say that preserving the park by discouraging growth in adjacent sites is too high a price to pay when average annual income in the county is far below that of other counties in the eastern half of Pennsylvania. According to the Baltimore Evening Sun, Richard H. Schmoyer, planning director for Adams County, believes that protecting the views throughout the park may be jeopardizing the entire area's economy: U.S. Rep. Peter H. Kostmayer, however, cosponsored legislation last year that would significantly expand the boundaries of the military park and its buffering zone, stating, "We cannot permit the desecration of one of the most hallowed sites in America. There are plenty of places in which to build shopping centers, but allowing one to be built within sight of the Gettysburg JANUARY 1996 AMERICAN PLANNING ASSOCIATION Home Occupations as Accessory Uses By Mark S. Dennison XVith the rise oftelecommuting, ~elecommunicating, and the need for day care in families with two working parents, full-rime home occupations, as well as occupations that require some work at home, are on the rise. This issue of Zoning News presents a primer on the legal lq framework of home occupation regulations for communities wrestling with the changes wrought by technology and an evolving workforce. Accessory uses are ordinarily permitted in residential zoning districts, provided they are incidental, secondary, or subordinate to the primary permitted use of the property. It is well recognized that a professional office or other home occupational use can constitute an accessory use in a residential dwelling. In fact, most zoning ordinances specifically permit such accessory uses in residential districts provided that the profession or cnstomary home occupation is conducted in the house occupied by the worker and other applicable criteria are met. Home occupation provisions of residential zoning ordinances generally seek to accommodate professional business uses that are reasonably compatible with the residential districts in which they are located. Thus, home occupations are generally limited to those uses that may be conducted within a residential dwelling without substantially changing the appearance or condition of the residence or accessory structures. If the business use of residential property dominates, it will not be permitted as a valid accessory use. Ordinance Definitions of Home Occupation Accessory Uses Along with the list of permitted uses for residential zones, most zoning ordinances contain provisions for accessory uses that explicitly, or at least implicitly, address incidental use of the property for professional or occupational use. Some ordinances simply provide broad language that implies permission to conduct certain home occupations. Ifa home occupation fits the broad definition of accessory use, it may be permitted depending on the scope and intensity of the occupational use. These broadly worded provisions demand that home occupations conform to the general standards applicable to all types of accessory uses: principally, that they are customarily incidental to the dominant use of the property as a residential dwelling. On the other hand, many ordinances specifically address home occupations as a subcategory of accessory uses, including more specific additional criteria for home occupations. Some of these ordinances permit or exclude specific types of home Home occupations, such as thh art gallery in rural Maine, are subject to an array of local ordinances governing accessory uses of residential proper~y. occupations while others refer to home occupations broadly as a single category of accessory use. Both types of ordinances enumerate various standards that home occupational uses must meet before they will be permitted as accessory uses. Interpretation of Zoning Ordinance Judicial interpretation of whether a home occupation is permitted as an accessory use will focus largely on the language of the local zoning ordinance. Issues concerning ordinance construction will often settle the question of whether a particular home occupation is valid under the terms of the local ordinance. When the language is susceptible to more than one interpretation, courts will give weight to the interpretation that is least restrictive of the rights of the property owner, while staying within the confines of the ordinance. Still, if the local zoning body has substantial evidence to back its interpretation, courts will almost always accord deference to that interpretation. When an ambiguity exists, the principles of ordinance construction employed by the court will depend on the type of provisions formulated to address home occupations. When a broadly worded provision permits such occupations if they fit the general definition of accessory use, the court will generally hold that the provision allows the occupation if it is customarily incidental and secondary to the primary use of the property as a dwelling unit. When the ordinance specifically lists permitted and prohibited home occupations, parties will usually ask the court to determine the validity of a home occupation that is not listed. For example, in one case, the local ordinance specifically prohibited barber/beauty shops and automobile repair shops, but real estate offices were not listed. The court concluded that the ordinance could not be construed as prohibiting the operation of a real estate business from an individual's home when such an office was not otherwise listed in the prohibition. [ Vislisel v. Board of Adjustment of Cedar Rapids, 372 N.W. 2d 316 (Iowa App. 1985).] Further, another provision permitted certain home occupations, including facilities used by a physician, surgeon, dentist, lawyer, clergyman, or other professional person, for emergency consultation or treatment, but not for the general practice of their profession. Finding that a realtor was a "professional person," and that the realtor's use of her home for calls and contacts with clients was the type of consultation use contemplated by the ordinance, the court concluded that the home occupation was valid. Another important issue may arise in home occupation cases when the local ordinance contains separate definitions for accessory uses and home occupations. Under these circumstances, the court will need to examine the ordinance's purpose and intent and consider whether the accessory use definition and home occupation sections are to be construed together in light of the stated purpose set forth in the ordinance. [See Platts v. Zoning Hearing Board and Borough of Bradford Woods, 654 A.2d 149 (Pa. Commw. 1995).] Validity of Home Occupation A number of relevant factors contribute to the determination of whether a home occupation is a valid accessory use. The prerequisites for a landowner to establish the right to conduct a home occupation on residential property should be contained in the applicable zoning ordinance. The degree to which the necessary criteria arc spelled out depends on how detailed the language is. Broadly worded provisions may permit all types of home occupations as long as they fit the general definition of accessory use. This type of ordinance requires that the landowner show that the home occupation is customarily incidental and secondary to the primary use of the property as a single-family dwelling. Other ordinances may require that the landowner make this showing in addition to satisfying other criteria specific to home occupation accessory uses. This latter type, which is more prevalent, can be further broken down into two general subcategories: ordinances that specifically list permitted and prohibited home occupations, and those that do not identify different home occupations by name. In either of these common types, most enumerate criteria that all permitted home occupations must meet in order to be valid as accessory uses in rcsidential zones. Incidental and Secondary to Primary Use The requirement that the home occupation use be incidental and secondary to the primary use of the residential property is the least clearly defined of the factors used to establish the occupation's validity since its proof depends on the fact-specific nature and scope of the occupation in relation to the dominant use. To satisfy this requirement, the landowner must put forth facts that show that the intensity of the accessory use is clearly secondary or subordinate to the use of the property as a residence. Further, the landowner may need to offer proof that the particular home occupation is one that is "customarily" associated with single-family dwellings. Courts may simply take notice of general experience as to what business occupations arc customary in relation to dwellings. Evidence of customary home occupations may be established through expert witness testimony from a planning Mark Dennison is an attorney in private practice in Westwood, New Jersey. He is the author of numerous books and articles on zoning, land use, and environmental law issues. 2 consultant or real estate professional who knows the history of permitted uses in the area. Landowners may try to present evidence that local officials have issued building, occupancy, or home occupation permits to other landowners with the same or similar type of home occupational use. Their goal is to establish that it has been a customary practice to allow certain types of home occupations as accessory uses. The intensity of the use and nature of the activities conducted in connection with the home occupation will often determine whether a particular type of home occupation is suboMinate to the primary use of residential property. The intensity of business use of residential property will often indicate whether the home occupation is the secondary or predominant use. Impact on Residential Character A primary purpose behind single-family zoning is the preservation of neighborhood character. Accordingly, another factor considered when determining thc validity ora home occupation is whether that use will adversely impact the neighborhood's residential character. A home occupation that is detrimental to residential character may properly be excluded. To minimize the adverse effects of home occupations on residential character, some ordinances require that they be conducted entirely within thc residence, eliminating outdoor business activities. Similar restrictions may be based on neighborhood aesthetics, such as prohibitions against the display of business signs on the property's exterior or outdoor storage of business equipment. Floor Area/Size Restrictions Some ordinances restrict the maximum floor area that the home occupation may use. Typically, these provisions limit home occupation use in terms of a certain percentage of the floor area of the dwelling unit. They also may be phrased in terms of maximum allowable square footage. Such a requirement is designed to ensure that the home occupation remains subordinate to the primary use as a dwelling. [See Reynolds v. Zoning Hearing Board of Abington Township, 134 Pa. Commw. 382, 578 A.2d 629 (1990).] Of course, proper calculation of the floor area used for the home occupation is necessary. Determining which areas should be included in the floor-area calculation is not always cut and dried. Should hallways and staircases be considered part of the floor area for the home occupation? The exact percentage or square footage allocated to the home occupation may be subject to debate. For example, in Town of Sullivans Island v. Byrum, 306 S.C. 539, 413 S.E.2d 325 (1992), there were conflicting views over whether an upstairs hallway should be included when calculating the percentage. The trial court excluded the hallway from the calculation, so that the use did not exceed the 25 percent limitation required by the ordinance. However, on appeal, the South Carolina. Supreme Court concluded that the trial court had erred. The court found that all of the upstairs rooms in the dwelling were part of the bed and breakfast operation, thus the only use of the upstairs hallway was for the same operation. When the court added the square footage of the hallway into the floor-area calculation, the use exceeded the limitation. Onsite Residency Requirements Another common criterion for establishing a home occupation accessory use is the requirement that the landowner reside on the premises where the use is being conducted. This residency requirement helps to ensure that the property's primary use is residential. Onsite residency prevents the landowner from converting the property into a business use. Ifa landowner does not reside on the premises, it may be found that the home occupation is not secondary to the primary use of the property for residential purposes. Nonresident Employee Prohibitions Some home occupation provisions contain specific limitations on the status and number of employees that may be employed by a home-based occupation. Obviously, such a limitation depends on the language of the applicable ordinance. Some ordinances may prohibit employment altogether or state such a restriction as a prohibition against "employment of anyone in the home other than the dwelling occupant." [City oflPekin v, Kaminskg 155 Ill. App.3d 826, 508 N.E.2d 776 (1987).] Most ordinances, however, allow for limited employment of workers in connection with the home occupation. Most of these impose a residency requirement on all workers, and some additionally require that the employees be family members who reside on the premises. Some ordinances will permit employment of nonresident workers, but they usually limit their number. No matter which type of employment provision is contained in the ordinance, this condition may determine whether the home occupation is valid. For example, in a Missouri case, St. Louis County v. Kienzle, 844 S.W.2d 118 (Mo. App. 1992), the court found that the landowners' operation of an insurance and bonding business was, for the most part, not at odds with the definition of home occupation. There was no sign or any other display indicat- lng that a business was being conducted inside the home, no clients went to the residence to conduct business, and no products or goods in trade were sold from the premises. Nevertheless, the court was compelled to conclude that the landowners' employ- ment of two nieces who did not live on the premises violated the ordinance's home occupation employment limitation, which allowed employment of only resident family members. When it is unclear whether a particular home occupation accessory use is permitted under the terms of the local zoning ordinance, the landowner and municipality may be forced to resolve their conflicting opinions through litigation, To avoid this costly alternative, municipalities must do their best to spell out clearly the standards they will use to evaluate home occupations. Calling, ..o,n the M,I,tia James Dacey is fighting for his home. A New York appeals court has ordered him to remove his mobile home from his land because it violates the town zoning laws of Perry, New York. But he refuses to do so, and the state is charging him $50 a day until he complies. In 1992, Dacey applied for a permit at a zoning board of appeals hearing, requesting permission to replace his existing mobile home with a larger unit. His application was denied. Dacey's home on Van Valkenburg Road is on land zoned agricultural/residential, which allows one- and two-family units. Dacey claims that there are other mobile homes in this area that do not comply with town zoning laws but are allowed to remain. He then applied for a use variance, asking to become an exception to the law, and that application was also denied. The court ruled that Dacey was unable to demonstrate that he would suffer an "economic hardship" if he were denied the variance. Dacey appealed and was granted a rehearing. At the rehearing, no further information was brought forth, and he was again denied the application. In supporting the zoning board of appeals decision, the trial court ruled that Dacey had to remove his home within 60 days. He sought appeal in the appellate division, where he was ordered to remove the home within 30 days or face a $50 daily fine. In an effort to rally support behind his cause, Dacey has contacted local and national militia groups including the Michigan Militia and the Chemung County Militia. Other militia groups throughout the country have also rallied to help Dacey keep his home. Additional Cases InvolVing Home Occupation Accessory Uses Finding Home Occupational Use Valid · Winnie v. O'Brien, 171A.D. 2d997, 567N. Y.S.2d943 (S. Ct. 1991) (ordinance definition of home occupation was broad, general one that included installation of dental chair). · City of White Plains v. Deruvo, 159 A.D.2d 534, 552 N. Y.S.2d 399 (S. Ct. 1990) (use of residence in connection with limousine service constituted permissible customary home occupation). · Osborn v. PlanningBoardofthe Town ofColonie, 146A.D.2d 838, 536N. Y.S.2d 244 (S. Ct. 1989) (social worker's proposed home office use for the practice of her profession was not the dominant use of the premises). Finding Home Occupational Use Invalid · Holsheimer v. Columbia County, 890 P.2d 447 (Ore. App. 1995) (landowner} storage of equipment and paving materials for a paving business did not qualia~ as home occupation). · Crlscione v. City of Albany Board of ZoningAppeals, 185 A.D.2d 420, 585 N. Y.S. 2d 821 (S. Ct. 1992) (law office not clearly incidental and secondary since lawyer did not reside in the dwelling unit). 1991) (it was reasonable dance studio was more extensive than what permitted under the, Cassidy A.2d 610 occupation withi~ home occupations tn Franchi 543 A.2d 239 did not, to the primary-use as a Rendin v. Zoning Hearing Board c A. 2d391 (Pa. Commw. ~ 488 uance permitted professional offices in a residential district only if the practitioner ako resided in the building). Page v. Zoning Hearing Board of Walker Township, 471 A.2d 1348 (Pa. commw, i984) (vehicle inspection and repair business was not activity customarily associated with dwellings).