HomeMy WebLinkAboutHO201400111 Legacy Document 2014-10-30 (3)Amelia McCulley
From: Greg Kamptner
Sent: Friday, June 20, 2014 4:38 PM
To: Amelia McCulley
Cc: Rebecca Ragsdale; Ron Higgins; Francis MacCall; Wayne Cilimberg
Subject: RE: RA home occupations and # of people
As far as any home occupation analysis may be relevant to this issue, I think the home occ regs now lay the issues out
fairly well. As I mentioned at the Legal Meeting, you can simply state that the use is not permitted as a by -right use in
the RA under section 10.2.1. The use also is not a home occupation. Here the notes I mentioned regarding the home occ
analysis.
Definition of major and minor home occupations and home occupation location regulations
I would begin with the definitions of major and minor home occupations in Section 3.1, the "location" regulations for
major and minor home occupations in Section 5.2A(b), and the "no visible evidence" regulations in Section 5.2A(c)
("There shall be no ... other visible evidence of the conduct of a major [or minor] home occupation") and consider that
the definitions and the regulations require that some (major) or all (minor) of the activities have to be conducted within
the dwelling and that there be no visible evidence of the home occ. Major home occs also can be conducted in accessory
structures. Every photo on various Trident -related sites I found shows the activity taking place outdoors, so this use does
not meet the definition of a home occupation.
But even if it did:
Private schools and other prohibited home occ uses
Section 5.2A(I) lists a range of uses that are prohibited, including "any use requiring a special use permit under section
10.2.2," and that includes private schools. So you are correct, private schools are prohibited home occupations and an
SP is required under section 10.2.2. I'm not sure this is a "school," but it may be the closest applicable use. Note also
that shooting ranges are also expressly prohibited under section 5.2A(I)(10). Finally, note that section 5.2A(I)(11)
authorizes you to prohibit any other use you determine to be contrary to the purpose and intent of the section 5.2A
home occupations. The purpose and intent section provides a compelling argument as to why this use is contrary to the
purpose and intent of home occs (assuming that it met the definition of a home occ):
a. Purpose and intent, The purpose for authorizing home occupations in the rural areas zoning district is
to encourage limited home-based economic development, balanced with the need to protect and
reserve the quality and character of the county's agricultural areas and residential neighborhoods in
the rural areas zoning district. The regulations in this section are intended to ensure that authorized
home occupations will be compatible with other permitted uses, the agricultural areas, and the
residential neighborhoods by regulating the scale, hours, external activities, external appearance and
other impacts that may arise from a home occupation.
The determination does not change even though the home occupation regulations refer to "students" coming to the
home occupation
Section 5.2A(d)(1) allows "students" to visit a major home occupation. But that reference does not conflict with the
prohibition of private schools under section 5.2A(I). The regulations are speaking about two different things —the
students referred to in section 5.2A(d)(1) would be individuals who come to the home, for example, art or music lessons.
Once multiple students show up for "classes," it becomes a school.
Other performance standards — outdoor parking and storage vs. the activity itself
This point pertains to the "it's addressed in the performance standards" argument you say that some people are making.
Even if the home occupation definitions (section 3.1) and location regulations (section 5.2A(b)) were not as specific as
they are to require that the activities be conducted in the home or in an accessory structure, none of the outdoor
1
activities that are regulated by the home occ performance standards deal with the home occupation activity itself. So
under sections 5.2A(f) and (g), parking vehicles, and storing vehicles and natural landscaping materials such as mulch
and plants, are the only home occupation activities allowed outdoors. Although interpreting the regulations is not
needed because the regulations are unambiguous, we can throw in a little Latin phrase here to drive the point home —
expressio unius est exclusio alterius— which is a rule of statutory interpretation that means that the reference to one or
more things in a particular class excludes all other things in that class. Thus, in the class of outdoor activities allowed in
conjunction with home occupations, the references to parking and storing vehicles, plants and mulch comprise the class
of home occupation -related activities that may be conducted outdoors, and the home occ regulations' creation of this
class therefore excludes any other outdoor activities related to the home occupation.
Greg Kamptner
Deputy County Attorney
County of Albemarle
gl<amptner@albemarle.org
From: Amelia McCulley
Sent: Wednesday, June 18, 2014 3:17 PM
To: Greg Kamptner; Wayne Cilimberg
Cc: Rebecca Ragsdale; Ron Higgins; Francis MacCall
Subject: RA home occupations and # of people
The consistent administrative practice I've followed is that if multiple people would be onsite at onetime, such as for
training classes, it is a private school. It therefore is not a home occupation but requires an SP for private school in RA.
If training isn't occurring but a service such as counseling or consulting is taking place, it isn't obviously a school. It's
possible that couples or siblings come for that service (accountant, interior design, counselor), resulting in multiple
customers onsite. None of this practice is explicitly in the ordinance (except that prohibited home occupations are those
uses by special use permit, which includes a private school in RA). We also can't find any written determinations about
this. I'm writing because we have a pending somewhat contentious application that is pushing the limits and we need to
make a determination to apply to all home occupations.
Some would argue that the RA home occupation regulations address land use impacts through the performance
standard of traffic. In other words, if the traffic max can be met then it doesn't matter if they have classes and/or
multiple people onsite at one time. We've historically considered the number of people onsite at one time as a land use
impact beyond the traffic, even though the activities take place within the structures. In our discussions, a staff person
noted that the new RA home occupation regulations relaxed some standards and codified performance standards to
address impacts. Mandy checked the home occupation ZTA to see if there is any legislative intent we can gather
through discussion (reports or minutes) about this issue — and she's found none. There is no mention of multiple people
or classes, with the exception of the open houses (twice a year or so) that artisans have. I don't know if either of you
have recollections on this.
I recommend a written determination that clarifies this point and applies to all home occupations. The pending home
occupation advertises classes (2-6 people) and an open gym and is willing to limit numbers in the class or open gym,
even to a family unit arriving together in a car.
https://www.facebook.com/trident.shield.911
http://trident-shieId.com/