Agenda - Planning Commission - 02/06/1996

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Tews JANUARY 1996 AMERICAN PLANNING ASSOCIATION Home Occupations as Accessory Uses By Mark S. Dennison With the rise of telecommuting, telecommunicating, and the need for day care in families with two working parents, full-time 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 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 customary 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. If a home occupation fits the broad definition of accessory use, ir 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 this art gallery in rur~zt Maine, are subject to an array o floral 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 ora 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 ora real estate business from an individual's home when such an office was not otherwise listed in the prohibition. [ Visllsel v. Board of Adjusrment of Cedar Rapids, 372 N.W. 2d