Last Thursday the Athens Planning Commission debated the proposed changes to the Home Occupation Ordinance.  This is the ordinance that allows certain businesses to be operated out of homes in residential areas.  The major points of debate included the new ordinance’s permission of cottage food businesses (great for the Farmers Market!), child daycares, and the continued prohibition of dog-related businesses.  The ordinance has a huge impact on entrepreneurship, community, and quality of life and deserves the attention it currently receives.

Prior to getting into the specific issues, it’s important to address the issues surrounding the idea of a home occupation ordinance.  Throughout the meeting the commissioners and the county attorney debated about the overall purpose and guidelines of the ordinance.  A home occupation ordinance is designed to make an exception for small business operations that would like to operate out of a residential home.  This fosters entrepreneurship by allowing commercial uses without the added cost of leasing a commercial space.  However, it is a narrow exception.  This is a still a residential area and it should retain the look and feel of a residential area despite the presence of any commercial enterprise.  The overall goal of the ordinance, and this is what the attorney and majority of commissioners agreed upon, is to allow in residential zones those businesses that can operate with little transparency; meaning without knowledge or inquiry, neighbors shouldn’t know the business is in operation.

Before addressing the more controversial aspects of the ordinance, I want to touch on the permission of cottage food businesses.  Currently almost all businesses related to the production and sale of food are considered catering operations and banned in residential areas.  This is (debatably) for a good reason.  Catering usually involves industrial equipment not found in an ordinary home and thus the ordinance shouldn’t allow this type of business.  (As discussed in the next paragraph, state regulation previously required all food production to meet certain guidelines which basically required all food production to use industrial/commercial equipment).  This is an off-shoot of the transparency idea of a home occupation in that this idea asks whether or not a business will be using equipment traditionally found in a home; if not, it likely won’t be discrete and should be prohibited from residential areas.  This is probably a more debatable viewpoint than the transparency viewpoint because you could often times use equipment not normally found in a residential home, but still operate your business in secrecy.

Athens Farmers Market
athensfarmersmarket.org

The real change that ushered in the proposed permission of cottage food businesses was a change at the state level.  The Department of Agriculture recently changed its rule to allow certain types of foods (cottage foods, i.e. foods that can be made without industrial equipment and are non-hazardous) to be manufactured from a home.  This gives local governments more discretion in determining what types of food production can be allowed in certain areas (not all food production has to use the same equipment and thus be classified as catering); this is done through a change in the home occupation ordinance.  Many people from the Athens Farmers Market came to the meeting to speak on behalf of the new ordinance stating that the current ordinance prevents many types of foods like jams, breads, dried fruits, and candies from being manufactured in homes and consequently it reduces the number of available items at farmers markets.  The permission of cottage businesses has widespread support among the commission and will likely find its way into the final ordinance.

The more controversial issues surround the potential arbitrariness, and unconstitutionality, of many classifications found in the proposed ordinance.  These are recurring issues that really have little to do with the exact wording of the updates.  The current and proposed ordinances both allow for child daycares with up to 6 children, including the owner’s children.  Both also prohibit any type of dog daycare or dog grooming business.  Both ordinances also prohibit any home business to occupy more than 25% of the heated floor space within the structure.  All of these issues drew debate among the commissioners as many felt these classifications and numbers were irrational and arbitrary.  Why decide 25%?  Why prohibit dog daycare, but allow child daycare? Why and how did you determine 6 children is the max?

Though many of these issues may seem arbitrary and pulled from thin air, the government has a great deal of discretion in determining what is rational.  Because this regulation does not involve a protected class (i.e. it makes no distinction between race, gender, etc.) a court will look to rational basis analysis.  A zoning regulation can be considered a violation of due process or equal protection if it is found to be arbitrary and irrational.  However, the burden on the challenger is high.  The court is going to ask whether or not the government had any legitimate purpose in enacting the regulation and whether or not the regulation is rationally related to the purpose.  Zoning is a local government’s application of the state’s ability to use its police power to protect the health, safety, welfare, (and morals depending on who you ask) of citizens so this is where the court will look to determine if a legitimate purpose exists.

A court could easily find that limiting a business to 25% of the floor space is rationally related to a legitimate government interest.  The legitimate government interest is basic zoning: segregating certain uses promotes the health, safety, and welfare of citizens.  Limiting businesses in residential areas to 25% of the floor space upholds the general residential character of the neighborhood.  The more floor space a business occupies, the more it morphs from residential to commercial and degrades the zoning plan.  A rational basis is the court’s lowest standard and this means it gives almost complete discretion to a legislative body to make a rational determination; unless it makes no sense whatsoever for the government to decide 25% is the limit, it will be upheld.  Many other municipalities have similar restrictions.

The same can be said for dog-related services and childcare.  Many of the commissioners who supported the continued ban on dog-related services cited that fact that dogs clearly make more noise, are likely going to need days or weeks to become familiar with one another, and could easily be left alone outside while the owner is away.  Conversely, children make less noise, will generally get along (or will disagree with less noise), and hopefully will not be left outside (to make noise) while the owner is away.  A court could easily reach the decision that this classification is not arbitrary, but rational.  A court could also easily reach the decision that 6 children is rationally related to the legitimate government interest of reducing noise and the amount of traffic generated by a daycare catering to more children.  Again, many other municipalities have similar restrictions.

Potentially More Noise…
petaanimalslover.blogspot.co

…Potentially Less Noise
futurethroughfoundations.wordpress.org

Enforcement must also be considered in the adoption of an ordinance.  Clearly if a dog daycare was allowed, some limit would have to be set on the number of dogs allowed.  This limit, like the child daycare limit, would set a maximum number of dogs not-owned-by-the-property owner allowed on the premises.  If a neighbor calls in a noise complaint, it will be difficult for the government to determine what dog belongs to what owner.  If the owner has 10 dogs and the ordinance allows 7 dogs not-owned-by-the-property owner, the government will basically have to take the word of the owner as to who owns what dog.  This makes enforcement very difficult.

An interesting issue is the debate between dog daycare and dog grooming.  The ordinance allows for barber and beauty shops, under certain conditions, but absolutely prohibits dog grooming.  One commissioner brought up the fact that a barber shop and dog grooming are basically the same in terms of the traffic generated.  In fact, human grooming uses many more chemicals not found in an ordinary home than dog grooming.  Assuming a barber shop meets the transparency viewpoint of a home occupation ordinance, and this is why it is allowed, a dog grooming business should also meet this viewpoint.  Under conditions you could operate both with no impact on neighbors. Unless you have several dogs making noise and waiting in line for a haircut, the two are basically the same.  From the equipment viewpoint, a dog groomer should be allowed and a human groomer should be prohibited due to the sheer amount of chemicals used by human groomers.  This is something that needs to be hashed out.  Though I agree with the ban on dog daycare I don’t see how you can allow a barber or beauty shop and ban a dog groomer.

In an effort to keep this post within a reasonable reading length, we will address many other interesting issues in the Home Occupancy Ordinance as it progresses from the Planning Commission to the Mayor and Commission for final approval.