Nobody Asked Me, But . . . (12/07/06)

NOBODY ARCHIVE

Last week's column began an examination of the Balkanization of Westchester County. Thanks to the county's fragmentation into a multitude of jurisdictions, we now have a crazy quilt of ambiguous codes that reveal bizarre anomalies. Nevertheless, when it comes to zoning, Westchester communities all seem to go their separate ways. Where you live can actually determine what you may or may not be allowed to do at home by your community's zoning laws.
In six communities in this part of Westchester--the villages of Briarcliff Manor, Croton, and Ossining, the towns of Cortlandt and Ossining, and a city, Peekskill--"customary home occupations" (a term with great potential for conflicting interpretations) are permitted in varying degrees as incidental to residential use of the premises. Sale of goods and display of merchandise are banned everywhere to prevent conspicuous commercial usage and to keep neighborhood values from being affected. All six communities also define permitted and prohibited occupations.
Cortlandt's zoning ordinance is the only law in touch with the times, pointing out that home occupations are increasingly appropriate in the light of new communication technologies. It is also the only law that specifically permits a homeowner to work at home "with connection to office or other persons by computer, telephone or other communications mode," and notes that "such occupations can be environmentally beneficial by reducing commuter trips." Who can argue that computers, monitors, laser printers, scanners, power backup systems, voltage regulators and other electronic equipment now so common in homes everywhere have not quietly become "customary household appliances," a common defining stipulation for home occupations?

Cortlandt allows the following 11 home occupations: "fine arts studio, dressmaking and millinery, mail-order business, preparation of food for sale off-site, office for resident professional, such as physician, dentist, architect, broker or attorney, telephone answering service." By contrast, Briarcliff Manor lists only five "learned professions" as permitted home occupations: architect, dentist, engineer, lawyer and physician. To these, the Village and Town of Ossining both add four: artist, clergyman, musician and teacher, making a total of nine permitted professions.

Croton generously itemizes 16 permitted home occupations, adding eight others to eight of the nine allowed in Ossining: "chiropractor, city planner, insurance broker, optometrist, osteopath, public accountant, real estate broker or ladies hairdressers, but not including veterinarians." Croton's failure to include clergymen and its inclusion of usually excluded ladies' hairdressers seems odd. Exclusion of veterinarians is not unusual; dogs tend to bark. This restriction, of course, does not prevent the use of commercial space by Croton veterinarians.

Peekskill allows 11 professionals to have home offices: "architect, artist, chiropractor, city planner, engineer, insurance broker, lawyer, musician, public accountant, real estate broker or teacher." But the city, which once had a booster group called the Friendly Town Association, is decidedly unfriendly to certain professionals working at home. Its zoning ordinance says bluntly that "a doctor, dentist, optometrist or similar medical practitioner" is excluded from setting up an office at home in Peekskill.

Croton and both Ossining Village and Town prohibit studios in which dancing or music instruction is offered to more than four pupils, and also prohibit concerts or recitals. On the other hand, while it is silent about dance instruction, concerts or recitals, Cortlandt's ordinance permits music instruction, and adds academic teaching and tutoring, also with the same limit on the number of pupils. Weighing in with its own array of prohibitions, Briarcliff Manor's ordinance says, "a clinic, hospital, barber shop, beauty parlor, tea room, tourist home or animal hospital are not deemed to be home occupations." Broad classifications inevitably risk vagueness; thus, in Briarcliff Manor how does a specifically prohibited animal hospital differ from, say, a veterinarian's office?

With specifically prohibited and permitted occupations, the rub comes with a category unanticipated by the framers of a zoning ordinance. Book authorship is nowhere identified as permitted--but why shouldn't the unobtrusive writing of books be considered a "customary home occupation"? What about photography? Or the preparation of tax returns? Home decoration consultants? Can someone offering "phone sex" claim to be operating a telephone answering service?

All six communities control the size of signs, limiting them to an area of one or two square feet. Space for a home-based business in Briarcliff Manor is limited to 25 percent of one floor in the dwelling unit. Croton sees it differently, liberally sanctioning the use of 30 percent of the total floor space of the entire building. Ossining Village increases the allowed 30% of one floor of a building when used by dentists and physicians to a sizable 50 percent. All six communities also set limitations on the number of nonresident workers who may be employed. Briarcliff Manor allows no nonresident employees, which surely works a hardship on professionals with offices in their homes.

Croton allows only one nonresident employee, as do the Village and Town of Ossining--but doctors and dentists in Ossining Village are allowed two. Peekskill and Cortlandt generously permit two nonresident employees. The paradox, of course, is that in any of these communities a homeowner can employ two, or six, or even a dozen servants. Yet a professional author in Briarcliff Manor who hires someone to type a book manuscript in the home is a lawbreaker. Similarly, engaging two such typists in Ossining or Croton also is a no-no.

Zoning ordinances are usually long on definitions and short on enforcement, as witness the widespread failure to control illegal accessory apartments. Today, the trend is toward placing less emphasis on defining acceptable and unacceptable home occupations. Instead, planners prefer to set the conditions under which a homeowner may operate a business or pursue a profession at home. The community sets up a permit process with a clear-cut list of performance standards and a case-by-case evaluation of each application, giving it complete control over the home-based enterprise.

Increasingly invasive regulation of how we may use our homes is a far cry from the time-honored principle affirmed in 1605 by English jurist Sir Edward Coke, usually paraphrased as "a man's house is his castle." The American Planning Association supports a policy of allowing home occupations by special permit as preferable to defining permitted occupations and letting people do whatever they want until someone complains. Admittedly, this imposes another layer of bureaucracy on already overloaded local administrators at a time when the thrust should be toward smaller government. Proponents claim the permit process has the advantage that potential problems are uncovered and solved before the home-based business begins to operate. Complaints by neighbors and the inevitable frictions they engender usually do not arise.

Westchester's regulations on home occupations are wildly inconsistent. Its creaky zoning laws hardly reflect the lifestyles, the needs or even the desires of the respective communities. A logical solution would be modernization and standardization to match the realities of today's economic scene and the swift advances of technology. Now is the time to begin reversing the costly Balkanization of Westchester County. The conflicting, outdated and inconsistent zoning laws of its communities would be a good place to start.