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Thread: Home occupation versus principal use

  1. #1
    Cyburbian CDT's avatar
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    Home occupation versus principal use

    Quick question for some feedback.

    I've got a permit request for an in home daycare that exceeds the number of children permitted in the residential district. We have a permit process for this and are going forward with that, but my question is regarding use classification.

    Here's the definition the use falls under (within our use type classifications)

    General daycare: Day-care services (general). This use type includes all classifications of day-care facilities regulated by the State of Nebraska that operate providing care for more than eight children. This term includes nursery schools, preschools, day-care centers for children or adults, and similar uses but excludes public and private primary and secondary educational facilities.

    Here's our def. of Home Occupation: An accessory occupational use conducted entirely within a dwelling unit by its inhabitants, which is clearly incidental to the residential use of the dwelling unit or residential structure and does not change the residential character of its site.

    So my question is this: Since it has a separate use type definition (and home occupations are not defined as a specific use type just defined in the definitions section of our zoning ordinance), then is it either a general daycare OR a home occupation or is it both?

    I am writing the report and there's not a consensus on whether or not the home occupation regulations SHOULD apply or SHALL apply.

    What are your opinions??? Thanks for your thought provoking insights

  2. #2
    NIMBY asshatterer Plus Richmond Jake's avatar
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    IMO, it exceeds the scope of a home occupation. Thus, the home occ regulations would not apply.

  3. #3
    Unfrozen Caveman Planner mendelman's avatar
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    Quote Originally posted by RichmondJake View post
    IMO, it exceeds the scope of a home occupation. Thus, the home occ regulations would not apply.
    Ditto...the day care use is not accessory and clearly principal use.
    I'm sorry. Is my bias showing?

    Let's not be didactic in this profession, because that is a path to disillusion and irrelevancy.

    Six seasons and a movie!

  4. #4
    With home occupations, we ask this question: would anyone suspect that a business is being operated at the dwelling? If the answer is "yes", then it fails to meet our customary home occupation test. In this case, I would expect the daycare to fail the test for drop-off/pick-up; a sign perhaps; and maybe even the playground/fenced play area.

    Indiana is very favorable to *child care homes* and limits local authority to regulate them -- and they seem one of the most amended sections of the statute, making them a moving target. Certainly, you'd want to rechceck your state statutes to make sure you're okay.

  5. #5

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    We (California) do permit them as a distinct use, "Family Day Care Home" and the State largely preempts local regulation for fewer than 14 children. HOWEVER, the difference here is that we require residency by the operator in the Family Day Care Home.

    Larger facilities with nonresident owners are considered a "Day Care Center" and are subject to stricter regulations (including a Conditional Use Permit and a Public Hearing). We do not allow the larger facilities on local streets and cul-de-sacs.

  6. #6
    Cyburbian Jess's avatar
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    There may be some considerations why they only allow max of 8 children. Since it's primary residential, more than that will create more noises and other non-favorable things that is unusual for a neighborhood.

  7. #7
    Cyburbian solarstar's avatar
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    I agree with the previous comments - certainly not a home occupation. Home occupations don't increase traffic to a residential neighborhood, and I'm sure that's why you have the child limits on in-home daycares. Once they exceed that, they aren't doing a home occup anymore.

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