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Thread: Define "primary" vs "accessory" in your city

  1. #1
    Cyburbian Habanero's avatar
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    Define "primary" vs "accessory" in your city

    Situation: two homes next door to one another in a single family residence are owned by one family. The wife says she lives in both full time and should be considered eligible to run a residential day care out of the second home. Here's the problem, the second home is mostly empty except for children's toys. They have installed a gate between the two residences that allows them to pass over property lines freely, but if they aren't actually living in the second home (no clothes, toiletries, or anything of that nature that makes a house appear to be lived in), only conducting a business for compensation how can the business be considered an accessory use? She's maintaining she lives in both homes full time. Another point, the first house was bought 5 years prior to the other house.

    Would you say both shoudl be considered primary dewlling units, or would you think the second home is being used for commercial purposes and is not an accessory use to the primary function of the home.

    Arguments both for and against are welcome.
    When Jesus said "love your enemies", he probably didn't mean kill them.

  2. #2
    Cyburbian nerudite's avatar
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    I would say if the two structures are on two different lots and one is being used as a business and nobody is habitating there (sleeping overnight, making meals, doing laundry and other household tasks there, etc) then that use is not accessory to anything on that lot. I would vote for commercial use. It would qualify for a conditional use permit if it were in my town (although we call them discretionary uses here).

    The only problem is that you can't prove that she doesn't live there, unless you are allowed an inspection of the premises. But enforcement is my weak point, so I have no idea if that's even allowed in the States.

  3. #3
    Cyburbian Habanero's avatar
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    I was allowed to do a walk thoruhg based on the Use Permit application, it's obvious that no one lives there at this point. The master bedroom had a tx, futon couch, and large desk with a computer on it. There was a large oak table in the kitchen as well. Other than that, everything is for the children. Two bedrooms have been converted into indoor play areas, all living areas were also dedicated to children. She calims they eat at this house, yet there were no dishes anywhere to be seen or typical kitchen products in sight. I would buy it, but that would mean they wouldn't use the other kitchen at all. Her son even answers the phone and says "she's at the daycare". Ihave a copy of her driver's license and it also states the address next door as her address. All tax mail is also recieved at the other home. I know I'm going to have a fight with this one.
    When Jesus said "love your enemies", he probably didn't mean kill them.

  4. #4
    Cyburbian jordanb's avatar
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    Who cares?

    I mean, so the lady wants to take care of some kids on the side. It's not like she's smelting iron or something.

  5. #5
    Cyburbian donk's avatar
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    I would go with and argue the idea that as she owns two residences that are on two separate lots she can not and probably does not have a distinct housekeeping unit in both. As such there is no secondary use occurring on the one property. The key here is that the units are on two separate lots. I'll let you know if this argument works, we are going to appeal on a similar manner.

    In our definition of accessory use we use words like "clearly incidental to" and "usually associated with". Thisprovides some leeway, but also makes it clear what we mean and what we examine in applications.

    Here they are "conditional uses" too. The wrinkle is that we can't refuse a conditonal use, only attach reasonable terms and conditions to it. It is then up to the applicant to meet the conditions or appeal them.

    As for the "who cares". Daycares can create many problems in neighbourhoods. traffic, noise, garbage disposal problems, servicing issues, health issues to name a few. The reason someone should care is that if the law requires something to occur/not occur then the person/agency that is supposed to enforce the regulation is duty bound to care.
    Too lazy to beat myself up for being to lazy to beat myself up for being too lazy to... well you get the point....

  6. #6
    Cyburbian jordanb's avatar
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    Donk writes:
    As for the "who cares". Daycares can create many problems in neighbourhoods. traffic, noise, garbage disposal problems, servicing issues, health issues to name a few.
    But they only appear if she does it out of a side house rather than her primary house?

    The reason someone should care is that if the law requires something to occur/not occur then the person/agency that is supposed to enforce the regulation is duty bound to care.
    So if you have to enforce a silly regulation, interpret it as liberally as possible. Give her the benefit of the doubt.

  7. #7
    Cyburbian Emeritus Chet's avatar
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    I agree with Donk 100%

    But in addition, she argues she resides at both full time? Bullsh*t.

    Jordanb - How can you say in good conscience 'who cares'? Have you ever had to deal with a case like this, where
    neighbors property rights are being infringed because of a woman trying to skirt the law? When the neighbor files a complaint about the commercial operation are you going to tell them "I don't care"?

  8. #8
    Cyburbian jordanb's avatar
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    Honestly. If she does it in her house, she's legal, if she does it in a room of an ancillary house, she's not. That's silly. How can the latter impact the neighbors any more negativly than the former?

  9. #9
    Cyburbian Emeritus Chet's avatar
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    Originally posted by jordanb
    How can the latter impact the neighbors any more negativly than the former?
    Scale of activity.

    If operated from the home you reside in, the operation must take place within the spatial confines of your residence, i.e. around your possessions and lifestyle needs.

    Habanero said thsi home has no furnishings, thus freeing the entire floorplate of the structure for day care use. Realisitically, its about a 300% increase in available space.

    My mother ran a home day care for 25 years, and even with a 2,200 square foot house, limited herself to 4 children due to space issues. Take out all of the living room, dining room, and family room furniture, lose my bedroom furniture and those of my siblings, and with staffing that place could earily accommodate 20+ kids.

  10. #10
    Cyburbian jordanb's avatar
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    So how did this even come to the attention of the planning board? Did she apply for a buisness license? In that case, why not limit the number of children allowed on the license? I'm sure the fire inspector (at least) would have the authority to do that.

    Also, it's pretty arbitrary anyway. What if her house had as much spare room as that house had usable space? What's to keep her from building a large room on the back of her house to use?

  11. #11
    Cyburbian Cardinal's avatar
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    Several issues come to mind.

    Traffic. A commercial day care is going to generate some substantial traffic, and the need for parking. This can be very disruptive to neighbors, especially if there is a need for on-street parking.

    Noise. Ever heard kids playing? Do you want that outside of your window every day, from maybe 7 AM to 6 PM?

    Day care regulation. It has been mentioned that you need a certain square footage for each child. Is she getting around this by claiming the square footage of both homes, to have more kids?

    Several people have commented that if each home is on its own lot, they are the primary structure on that lot. The second house would not be accessory to the first. One way to establish this is to follow the same guidelines as the IRS. She has a designated primary dwelling, and owns a second home.

  12. #12
    I agree with Chet about the space issue. Say she ran a law office from her home. If it was in her primary dwelling she would likely have one room dedicated for an office. If it was in this second home she could have an office in every room and have several people working there. By having a house that is completely dedicated to a daycare, it is no longer an accessory use but a primary use, making it a business. When people buy a home in a residential neighborhood they assume that all other homes in the area will be primarily used for residential purposes. Having one parcel completely dedicated to business use (daycare) goes way beyond what is considered accessory use of residential parcel.
    "I'm a white male, age 18 to 49. Everyone listens to me, no matter how dumb my suggestions are."

    - Homer Simpson

  13. #13
    Cyburbian jordanb's avatar
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    I think I'm having trouble with why having some commercial activity in a residential area might be a problem (Other than the suburban obsession with "traffic" which would be negated by limiting the number of kids she can have). It might even be a benefit neighboors who need daycare service and just have their kids walk across the block to her place.

    Certianly limit the scale of operation she can do there, but splitting hairs over if it is or isn't her primary residence is just stupid.

    By the way, my mother ran a preschool in her house that the local planning board goons would never have allowed for a few years some time back. She just squared it away with the neighbors and the parents that it wasn't approved so don't tell anyone.

  14. #14
    Cyburbian Emeritus Chet's avatar
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    Originally posted by jordanb
    I think I'm having trouble with why having some commercial activity in a residential area might be a problem...
    Euclidian Zoning
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    Originally posted by jordanb
    It might even be a benefit neighboors who need daycare service and just have their kids walk across the block to her place.
    It might, but if she skirts the apllication, public notice, and review requirements of the law, Habanero will never know.

  15. #15
    Cyburbian jordanb's avatar
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    Chet wrote:
    Euclidian Zoning
    . . .
    That's where the practice of planning in no way relates to ether the science of planning or reality, right?

  16. #16
    Cyburbian Habanero's avatar
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    Originally posted by jordanb
    But they only appear if she does it out of a side house rather than her primary house?

    So if you have to enforce a silly regulation, interpret it as liberally as possible. Give her the benefit of the doubt.
    The average house here gets 10 trips a day. One of the homes being turned into a daycare pushes that up to 20 just for the drop-off/pick-ups of the children, so you've got her 10 average form her other house, then at least 20 from this home as well, not even counting the employees she wants. So 2 employees into the mix and that's 4 trips for them to come and go to work and if they leave for lunch that another 4 trips, so out fo the daycare home alone she's got at least 28 trips per day when the average house has 10.

    It's not a silly regualtion, it actually makes sense. You cannot physically be at two places at once. They are separate homes, and the inside of the second home is dedicated to children.

    Beyond that, there are externalities of the excessive traffic and the fact it's a commercial use in a residentail zone.
    When Jesus said "love your enemies", he probably didn't mean kill them.

  17. #17
    Cyburbian Habanero's avatar
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    Originally posted by jordanb
    So how did this even come to the attention of the planning board?
    I called the contact number and her son kept saying she's next door or she's at the daycare. Checked it out and foudn the contact number given is the phoen number for the other home she never menitoned. The entire time she's maintained to both state and city she lives here but did not mention she lives at both homes.


    Originally posted by jordanb
    Did she apply for a buisness license?
    A business license will not regulate the number of children, it's for tax purposes. Both State and City have the requirements spelled out, she acknowledged she was abiding by both when she was not.

    Originally posted by jordanb

    In that case, why not limit the number of children allowed on the license? I'm sure the fire inspector (at least) would have the authority to do that.
    The City has the authority to do that through the Use Permit process, she applied for a residential in home daycare which is clearly defined as an accessory use to the primary use of the home as a residence. She does not have the space at the other hoem to have a smany children because the backyard has a pool. She also syas that's the house for adults, clearly making the distinction this house is set up aroudn children. Regardless of license she is not meeting any standards to even be considered for the UP because she's conducting a commercial project in a residential zone.

    Originally posted by jordanb
    Also, it's pretty arbitrary anyway. What if her house had as much spare room as that house had usable space? What's to keep her from building a large room on the back of her house to use?
    It's a little thing called lot coverage. Beyond that there are indoor and outdoor space requirements that must be met, she has a pool in her actauly residence, as listed on her license, so expansion is not an option. She cannot replat because that would be multifamily in a single family neighborhood, well, she could if she demolished on kitchen.
    When Jesus said "love your enemies", he probably didn't mean kill them.

  18. #18
    Cyburbian jordanb's avatar
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    Oh, so this is NIMBYism. I thought you were on the planning board.

  19. #19
    Cyburbian Habanero's avatar
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    Originally posted by jordanb
    Oh, so this is NIMBYism. I thought you were on the planning board.
    If you can't say anything intelligent, don't say anything at all.
    When Jesus said "love your enemies", he probably didn't mean kill them.

  20. #20
    Cyburbian Cardinal's avatar
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    Originally posted by Habanero
    If you can't say anything intelligent, don't say anything at all.
    Agreed. Jordanb, your comments don't show much thought, or really attempt to counter the legitimate comments and concerns expressed by others in an intelligent manner. State codes regulate day care operations to ensure the protection of the children. Local zoning and subdivision codes ensure the safety and quality of the neighborhood environment of community residents. This woman apparently wants to flaunt both. She has the option of a variance process, or asking the city to change the codes if she can make a valid case. If you agree with her and want to make her case, do so. Don't just troll.

  21. #21

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    Would she be able to legally operate the day care if she merged the two lots and removed the kitchen (or other elements that make the structure a dwelling unit) from the second home?

  22. #22
    Cyburbian jordanb's avatar
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    I don't think you are giving what I'm saying the thought required.

    What we have here is a appearently vindictive neighbor who discovered a home buisness not by all of that horrible "traffic" it was supposedly causing, but by spying through the women's child. I suspect that there's some ill-will going on here. There certanly will be if the place gets shut down.

    So now all of you planners who can't see past one use pods despite everything you were taught in planning school are up in arms because she's "flaunting" your precious zoning laws.

    Also, since when has the children's safty been in question? I thought the issue was that she was using the place against zoning regulations, not against health and safty regulations.

    Now, as far as the NIMBY statement, I thought the original poster was on a planning board trying to interpret the law, I didn't know it was just a neighbor trying to stir up trouble. I wouldn't have bothered with it if I had known it was the latter.

  23. #23
    maudit anglais
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    Originally posted by jordanb
    Now, as far as the NIMBY statement, I thought the original poster was on a planning board trying to interpret the law, I didn't know it was just a neighbor trying to stir up trouble. I wouldn't have bothered with it if I had known it was the latter.
    Just to clarify for you Jordan, Habanero is a planner for the community in question, not a NIMBY.

  24. #24
    Cyburbian Emeritus Chet's avatar
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    Originally posted by jordanb
    Also, since when has the children's safty been in question? I thought the issue was that she was using the place against zoning regulations, not against health and safty regulations.
    Among other reasons, zoning ordinances are enacted to promote health, safety, welfare ,and morals. I really dont understand your arguments.

  25. #25
    Cyburbian Emeritus Chet's avatar
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    Originally posted by jordanb
    That's where the practice of planning in no way relates to ether the science of planning or reality, right?
    I presume that was sarcasm. Otherwise, I'll just chalk up the lack of knowledge to being a college sophomore - maybe you didn't have that class yet.

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