Do any of our resident lawyers have any zoning law experience?
Apparently, I can not get a use permit for my home based business because I can not prove a hardship for the variance. So, I am considering trying to get it rezoned as R2 which would allow a home based business.
Here is a link to relevant zoning rules:
http://www.municode.com/resources/gateway.asp?pid=10285&sid=32
Quote:Sec. 80-8.9. Home occupations.
(a) Purpose. Accessory home occupations are activities accessory to uses in the household living category. Home occupations have special regulations to ensure that they will not be a detriment to the character and livability of the surrounding neighborhood. The regulations ensure that the accessory home occupation remains subordinate to the residential use, and that the residential viability of the dwelling is maintained. The regulations recognize that many types of jobs can be done in a home with little or no effects on the surrounding neighborhood.
(b) Description of type A and type B accessory home occupations. There are two types of home occupations, type A and type B. Uses are allowed as home occupations only if they comply with all of the requirements of this chapter.
i. Type A. A type A home occupation is one where the residents use their home as a place of work; however, no employees or customers come to the site. Examples include, but are not limited to, artists, crafts people and writers. Type A home occupations also provide an opportunity for a home to be used as a business address but not as a place of work.
ii. Type B. A type B home occupation is one where the residents use their home as a place of work, and either one employee or customers come to the site consistent with the regulations outlined in subsection (d) below. Examples include, but are not limited to, counseling, tutoring, legal, medical, accounting, and hair cutting and styling.
So, my business would be a type B business.
Quote:Sec. 80-8.3. R-1 single-family residential district.
(a) Purpose. To provide for single family residential development.
(b) Permitted uses.
i. Detached single-family dwellings.
ii. State-certified modular dwellings.
iii. Attached single-family dwellings subject to site plan review as per section 80-5.
iv. Schools: Primary, elementary, junior high or senior high, publicly owned.
v. Agricultural uses, provided, however, that the lot upon which the use is situated is at least five (5) acres in size.
vi. Governmental structures or uses including public park, playground, recreation building, fire station, library or museum.
vii. Churches and religious institutions.
(c) Uses allowed by special permit.
i. Golf courses and clubhouses.
ii. Schools: Primary, elementary, junior high or senior high, privately owned.
iii. Cemeteries.
iv. Utility substations or pumping stations with no equipment storage.
v. Wireless communications facilities.
(d) Permitted accessory uses.
i. Private garages or carports.
ii. Family day care homes.
iii. Group family day care.
iv. Type A home occupations as defined in section 80-8.9.
v. Private barns and stables as an accessory to a permitted agricultural use situated on a parcel at least five (5) acres in size.
vi. Noncommercial storage sheds, noncommercial tool sheds and greenhouses.
vii. In-season storage of recreational vehicles. Off-season storage of recreational craft, recreational vehicles or recreational vessels shall be permitted as set forth herein at subsection 80-17.2(k).
viii. Noncommercial recreational structures which could include, but are not limited to, swimming pools and recreational ball courts.
ix. Energy systems.
As I am zoned R1, I am allowed a Type A business which would mean no customers can visit which means no dropping off or picking up computers for repair which would impede my business as I would not be competitive with other businesses.
R2 is defined as such:
Quote:Sec. 80-8.4. R-2 single-family, small lot residential district.
(a) Purpose. To provide for small lot single-family residential uses including attached single-family and duplexes.
(b) Permitted uses.
i. Detached single-family dwellings.
ii. Attached single-family dwellings.
iii. Two(2)-family dwellings.
iv. State-certified modular dwellings.
v. Schools: Primary, elementary, junior high or senior high, publicly owned.
vi. Governmental structures or uses including public park, playground, recreation building, fire station, library or museum.
vii. Churches and religious institutions.
(c) Uses allowed by special permit.
i. Bed and breakfast inns as defined in section 80-8.10.
ii. Group foster homes.
iii. Cemeteries.
iv. Schools: Primary, elementary, junior high or senior high, privately owned.
v. Utility substations or pumping stations with no equipment storage.
vi. Wireless communication facilities.
(d) Permitted accessory uses.
i. Private garages or carports.
ii. Family day care homes.
iii. Group family day care.
iv. Accessory dwelling units.
v. Type A or B home occupations as defined in section 80-9.
vi. Storage sheds, tool sheds and greenhouses.
vii. In-season storage of recreational vehicles. Off-season storage of recreational craft, recreational vehicles or recreational vessels shall be permitted as set forth herein at subsection 80-17.2(k).
viii. Noncommercial recreational structures which could include, but are not limited to, swimming pools and recreational ball courts.
ix. Energy systems.
This outlines why I can not get a use variance:
Quote:(c) Use variances.
i. The board, on appeal from the decision or determination of codes enforcement officer, shall have the power to grant use variances, as defined herein. No such use variance shall be granted by the board without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship the applicant shall demonstrate to the board of appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located:
a. The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
b. The alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;
c. The requested use variance, if granted, will not alter the essential character of the neighborhood;
d. The alleged hardship has not been self-created;
e. That the granting of the variance requested will not confer a special privilege to the property that is denied other lands in the same district; and
f. The board, in the granting of the variance, shall grant the minimum variance that will make possible the reasonable use of the land, and at the same time, preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
So, I am left with trying to get rezoned... This totally sucks.
Any questions, let me know and I will try to answer them best I can.
