Agenda - Planning Commission - 02/06/1996

Home

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, ir ma), be found that the home occupation is not secondary to the primary use of the propers3, 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 o/Pekin v. Kaminski, 155 III.App.3d 826, 508 N.E.2d 776 (19879.] Most ordinances, however, allow for limited employment of workers in connection with the hom. e occupation. Most of these impose a residency requirement on all workers, and some additionally requite that the employees be family members who reside on the premises. Some ordinances will permit employment of nonresident workers, but they usually Jimit 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. 19929, 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- ing 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 ma), 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 the3, will use to eYaluate home occupations. Calling on the Militia 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 reheazlng, 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. Finding Home Occupational Use Valid ' · Winnie v. O'Brien, 171A.D.2d997, 567N. Y.S. 2d943 (S. Ct. · 19919 Ordinance d6ffnition of home occupation was broad, general one that included installation of dental chair). * Ci~yofWhiteJ~talns v. DerUvo, 159A.D.2d534, 552N. ES. 2d 399 (S. Ct. 19909 (use o/residence in connection with limousine service constituted permissible customary home occupation). · * Osbornv. Planning Board of the To wn of Cotonie, 146A. D. 2d 838, 536 N. Y.S.2d 244 (S. Ct. 198R) (social worker}proposed home office use ~r the practice of her profession was not the dominant use of the premises). Findlng Home Occupatlonal Use Invalid · tfohheimer v. Columbia County, 890P.2d447(Ore. App. 19959 (landowner} storage of equlpment and paving materials for a paving busi,ess did not qs~ali~ as home occupation). · Criscione v. City of Albany Board of ZonlngAppeals, 185 A.D.2d 420, 585 N.Y.S. 2d 821 (S. Ct. 19929 (law office not clearly incidental and secondary since lawyer did not reside in the dwelling unit). /34 · Baker v. Polsinelli, 177A.D.2d844, 576N. Y.S.2d460 (S. Ct. 19919 (it was reasonableJ~r the zoning board to find that the dance studio was more extensive than what was intended to be permitted under the ordinance'as a home occupation). · Gzssidy v. Zoning Board of Adjustme'nt o/City ofpitUburgh, 559 A.2d 610 (Pa, Commw. 19899 (beauty shop was not home occupation within meaning of general Z°ning ordlnance permiMng home occupations in residentially zoned districts). · ]:rancai v. Zoning HearingBoard of the Borough o/New Brighton, 543 A.2d 239 (Pa. Commw. 19889 (landowner} accounting office did not quali~ as a vaad accesso~y use because it was not secondary to the primary'use as a residence). · Rendin v. Zoning tfearingBoardofthe Borough o/Media, 488 A.2d391 (Pa. Commw. I9859 (zoning ordinancepermitted professional offices in a residential district only if the practitioner aho resided in the building). · Page v. Zoning Hearing Board of Walker Township, 471 A.2d t348 (Pa. Commw. 19849 (vehicle i~upection and repair business was not activity customarily associated with dwellings).