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316 (Iowa App. 1985).~ Further, another provision permitted
<br />certain home occupatidns, including facilities used by a
<br />phys,c~an, surgeon, devlt,st, lawyer, clergyman, or other
<br />professional person, lo,emergency consultation or treatment,
<br />but not for the general ~ractice of their profession. Finding that
<br />a realtor was a "professibnal person," and that the realtor's use
<br />of her home for calls an~d contacts with clients was the type of
<br />consultation use conten~plated by the ordinance, the court
<br />concluded that the horfi'e occupation was valid.
<br /> Another important i[sue may arise in home occupation cases
<br />when thc local ordinance contains separate definitions for
<br />accessory uses and hom~ occupations. Under these
<br />circumstances, thc couri' will need to examine the ordinance's
<br />purpose and intent andlcons,der whether the accessory use
<br />definition and home oc{;upation sections arc to be construed
<br />together in light of the ~tated purpose set forth in the ordinance.
<br />[See ?lam v. Zoning H/~ring Boardand Borough of Bradford
<br />Woods, 654 A.2d 149 (l~a. Commw. 1995).]
<br />
<br />Validity of Hom~ Occupation
<br />
<br />A number of relevant fa
<br />whether a home occupa
<br />prerequisites for a lando
<br />home occupation on rcs
<br />thc applicable zoning or
<br />necessary criteria arc spt
<br />language is. Broadly wol
<br />home occupations as lot
<br />accessory use. This type
<br />landowner show that th~
<br />
<br />:tors contribute to the determination of
<br />ion is a valid accessory use. The
<br />verier to establish the right to conduct a
<br />idential property should be contained in
<br />linance. The degree to which the
<br />led out depends on how detailed the
<br />:led provisions may permit all types of
<br />~ as they fit thc general definition of
<br /> .f ordinance requires that the
<br /> home occupation is customarily
<br />
<br />incidental and seconda4 to the primary use of the property as a
<br />single-family dwelling. ~thcr ordinances may require that the
<br />landowner make this shc~wing in addition to satisfying other
<br />criteria specific to homeloccupation accessory uses. This latter
<br />type, which is more prevalent, can be further broken down into
<br />two general subcatcgorie~: ordinances that specifically list
<br />permitted and prohibite{J_ home occupations, and those that do
<br />not identify different ho~ne occupations by name. In either of
<br />these common types, mc[st enumerate criteria that all permitted
<br />home occupations must jneet in order to be valid as accessory
<br />uses in residential zones.5
<br />
<br />Incidental and S~condary to Primary Use
<br />The requirement that th{= home occupation use be incidental
<br />and secondary to the primary use of the residential property is
<br />the least clearly defined df the factors used to establish the
<br />occupation's vah&ty s,n~e its proof depends on the fact-specific
<br />nature and scope of the ~ccupation in relation to the dominant
<br />use. To satisfy this requi/~ement, the landowner must put forth
<br />facts that show that the igtensity of the accessory use is clearly
<br />secondary or subordinat~ to the use of the property as a
<br />residence. Further, the la~downer may need to offer proof that
<br />the particular home occupation is one that is "customarily"
<br />associated with single-farhily dwellings.
<br /> Courts may s~mply ta~c not,ce of general expe.rience as to
<br />what business occupatiods are customary in relation to
<br />dwellings. Evidence of c4stomary home occupations may be
<br />established through cxpe~.t witness testimony from a planning
<br />
<br />Mark Den,/son is a, attohney in private practice i, Westwood,
<br />New Jersey. He is the authbr of numerous books a,d articles on
<br />zo,i,g, land use, and e,m~onmental law issues.
<br />
<br />2
<br />
<br />consultant or real estate professional who knows the history of
<br />permitted uses in the area. Landowners may try to present
<br />evidence that local officials have issued building, occupancy, or
<br />home occupation permits to other landowners with the same or
<br />similar type of home occupational usc. Their goal is to establish
<br />that it has been a customary practice to allow certain types of
<br />home occupations as accessory uses.
<br /> The intensity of the use and nature of the activities
<br />conducted in connection with the home occupation will often
<br />determine whether a particular type of home occupation is
<br />subordinate to the primary use of residential property. The
<br />intensity of business use of residential property will often
<br />indicate whether the home occupation is the secondary or
<br />predominant use.
<br />
<br />Impact on Residential Character
<br />A primary purpose behind single-family zoning is the
<br />preservation of neighborhood character. Accordingly, another
<br />factor considered when determining the validity of a home
<br />occupation is whether that use will adversely impact the
<br />neighborhood's residential character. A home occupation that is
<br />detrimental to residential character may properly be excluded.
<br /> To minimize the adverse effects of home occupations on
<br />residential character, some ordinances require that they be
<br />conducted entirely within the residence, eliminating outdoor
<br />business activities. Similar restrictions may be based on
<br />neighborhood aesthetics, such as prohibitions against the display
<br />of business signs on the property's exterior or outdoor storage of
<br />business equipment.
<br />
<br />Floor Area/Size Restrictions
<br />Some ordinances restrict the maximum floor area that the home
<br />occupation may use. Typically, these provisions limit home
<br />occupation use in terms ora certain percentage of the floor area
<br />of the dwelling unit. They also may be phrased in terms of
<br />maximum allowable square footage. Such a requirement is
<br />designed to ensure that the home occupation remains
<br />subordinate to the primary use as a dwelling. [See Reynolds v.
<br />Zoning Hearing Board of Abington Township, 134 Pa. Commw.
<br />382, 578 A.2d 629 (1990).]
<br /> Of course, proper calculation of the floor area used for the
<br />home occupation is necessary. Determining which areas should be
<br />included in the floor-area calculation is not always cut and dried.
<br />Should hallways and staircases be considered part of the floor area
<br />for the home occupation? The exact percentage or square footage
<br />allocated to the home occupation may be subject to debate.
<br /> For example, in Town of Sullivans Island v. Byrum, 306 S.C.
<br />539, 413 S.E.2d 325 (1992), there were conflicting views over
<br />whether an upstairs hallway should be included when calculating
<br />the percentage. The trial court excluded the hallway from the
<br />calculation, so that the use did not exceed the' 25 percent
<br />limitation required by the ordinance. However, on appeal, the
<br />South Carolina Supreme Court concluded that the trial court
<br />had erred. The court found that all of the upstairs rooms in the
<br />dwelling were part of the bed and breakfast operation, thus the
<br />only use of the upstairs hallway was for the same operation.
<br />When the court added the square footage of the hallway into the
<br />floor-area calculation, the use exceeded the limitation.
<br />
<br />Onsite Residency Requirements
<br />Another common criterion for establishing a home occupation
<br />accessory use is the requirement that the landowner reside on
<br />the premises where the use is being conducted. This residency
<br />
<br />
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