Business loophole in residential zoning?

August 31, 2006 10:22 AM

So when is a business not a business? This relates to zoning regulations, and what seems to be a way around a prohibition of businesses in residential neighborhoods.

Our little town has R-1 zoned neighborhoods where no more than two unrelated people may live in a residence, and a business may be operated in a residence only if the owner of the business lives there, and only the owner’s immediate family may be employees.
But what happens when a corporation buys a house and rents it to disabled folks (or their guardians, more likely), and another corporation then provides caregiver services to those who live in the house, but both corporations are owned by the same person?
The owner does not live in the house, and the employees of the caregiver service are not the owner’s family members.
Is this defacto, a single business, or has the owner found a valid loophole around residential zoning rules?
And what if the corporation that owns the property rents to the corporation that provides the caregiver service rather than the service’s clients?
There is a whole ‘nother issue regarding federal law and discrimination against disabled folks, but I’d rather leave that for another day…

posted by tommyD to law & government (9 answers total)

Wouldn't this be more a landlord/tenant issue? Presumably management companies are allowed to lease houses in this zoning?
posted by occhiblu at 10:26 AM on August 31, 2006

Providing a service to a resident is not the same as "operating a business" at that address otherwise a whole host of services from house cleaners to roofers would not be able to happen in the neighborhood.
posted by Quinbus Flestrin at 10:59 AM on August 31, 2006

Occibu and Quinbus - you are both right, but maybe I can make this more clear.

There is nothing wrong with renting a house in an R-1, and nothing wrong with providing services to folks who rent and live in a house in R-1, but now put them both together: Rent a house to a client, provide a service to that client 24 hours a day, 7 days a week, and own both the property-owning and service-providing businesses. Can this be considered a single defacto business and therefore banned in R-1, or is this a legal way to operate a business location in a residential zone?

In case it helps, this is in Pennsylvania.
posted by tommyD at 11:29 AM on August 31, 2006

Zoning regulations are created and enforced at the town (or maybe county in some states?) level only. It is probably not possible for someone without specific knowledge of your town's Zoning Ordinance to definitively answer this question. I'd suggest you contact your town's Planning Department and ask them directly. If you get an answer you like, see if you can't get it in writing (even as an email) should someone question you about it later. If you get an answer you don't like, look into getting a variance from your town's Zoning Board of Appeals (or similar organization).

On the surface this does not seem to violate the spirit of the ordinance, so I think you will be OK if you can explain the situation to them.
posted by Rock Steady at 11:42 AM on August 31, 2006

You would really need to talk to a lawyer familiar with local zoning regulations to know for certain. I am a lawyer, but I am not your lawyer. Providing services in a location isn't the same as running a business- you can have a pizza delivery service, and delivering the pizzas (or in this example, home-care services) is the service- the running of the business (payroll, accouting, etc.) take place elsewhere.

Additionally, from a public policy perspective, however, it doesn't make sense that renters would be precluded from hiring their landlord, or an entity affiliated with their landlord, to provide services in the home.

Finally, most zoning regulations against running businesses in a residential area are designed to prevent a scenario where customers from outside the neighborhood come in, creating extra traffic and a higher volume of "outsiders" wandering through the neighborhood. A home care service would not attract outside customers, so even if a narrow reading of the zoning regulations would prohibit it, a zoning variance ought to be within the realm of possibilities. Again, you need to consult a lawyer to be certain.
posted by ambrosia at 12:06 PM on August 31, 2006

This would be legal (I think, I'm not a lawyer just a student of architecture) in the two locations I'm familiar with (Calgary and Kamloops).

Most residential business zoning restrictions are aimed at preventing excess traffic and noise/light pollution. Considering this couplet of businesses wouldn't be noticeable above the background noise (unless there was an increase in density above the surrounding properties) even if it was technically prohibited it should be fairly easy to get a variance in all but the most NIMBY of neighbourhoods.
posted by Mitheral at 12:43 PM on August 31, 2006

The tough thing about this question is that we can't really tell which side you are on. Are you an interested observer of someone else's business, or are you thinking of starting this business up by attempting to exploit the loophole?
posted by MrZero at 2:04 PM on August 31, 2006

I’m an interested observer of the entire situation, but I guess what piques my curiosity is the how much weight should be given to legal fictions. That is, how should the zoning hearing board see this: as two distinct corporations serving a person in a residence (the fiction), or as a single corporation hosting clients in its facility (the reality)?

As far as the zoning issue itself, like many land use controversies, it’s not a simple situation, and when it comes down to the final decision, it will probably hinge on other matters.

“NIMBY” by the way, is often mischaracterized. I have seen folks just being selfish, but more often I have seen situations where “NIMBY” was used as an epithet against folks trying to exercise a little democratic self-determination.
posted by tommyD at 3:08 PM on August 31, 2006

tommyD, as an interested observer, there may be some key information that you don't have yet. Specifically, it may be a "pre-existing use," which means that if you were using property in a certain way before the zoning regulations came into effect, you can continue to use it in that way. Also, as some have mentioned, the owner may have gotten a variance for the use, since it seems pretty innocuous.

However, at the local level, stuff like this is very hit-or-miss. The enforcement authority may be unsure whether this is a violation or not (it does sound very ambiguous to me), or they may simply be ignoring it because it does sound like it has some social value. Or, the guy could be best friends with the brother-in-law of the zoning board of appeals president, and thus he gets a free pass for a while.
posted by MrZero at 4:42 PM on August 31, 2006