April 12, 2013

Howard County Zoning Regulation Unduly Regulates and/or Prohibits Home Occupations

         Katherine Taylor, a land use, zoning, small business and real estate attorney, has been practicing in Howard County for more than 20 years. Andrea LeWinter joined efforts with Katherine Taylor almost 10 years ago and together with Kelcie Longaker, who joined with Taylor Legal a few years ago, they pursue a common goal - to represent individuals and small businesses throughout the County, choosing to eschew the lucrative compensation of the larger law firm in order to provide quality representation to those businesses and individuals who cannot afford to hire larger firms for important representation. In order to be able to provide reasonably priced representation, these lawyers have chosen to work from home-based offices rather than leased commercial space. They interact frequently with IT consultants, bookkeepers, office assistants, and other individuals and small businesses who also practice from home-based offices. Importantly, many of the Taylor Legal clients are themselves individuals and small businesses who seek either business, employment, real estate and zoning advice from like-minded lawyers with the primary goal being quality representation to their clients.
            The Taylor Legal lawyers do not have any doubt that they would be able to navigate and meet any requirement for a permit or even a conditional use were they required to do so in order to maintain their businesses. However, the real concern is for the multitude of other Howard County residents who chose to live here, work here and send their children to school here, and who also maintain home offices or home occupations.
            Howard County is touted in the press and on its own website as one of the most affluent and highly educated Counties in the country, and for having an excellent school system. Many of the highly educated residents of the County are practicing as business consultants, IT specialists, computer programmers, and too many professions to name – all from home based offices. Why do they do this? There are many reasons. One reason is because their education and experience allows them the ability to do so. Some are required to maintain home offices. Some choose to telecommute. Many are retired from government and have chosen to continue working in government industry as contractors or consultants. Many are moms (or dads) who have professional degrees who want to work while at the same time having flexible schedules so that they can attend to their most important job: raising their children and being there when their kids come home from school.
So, what makes this County one of the most educated, and what makes this County have one of the best school systems in the Country? It is not because the developers of land have made fortunes building on land appropriately zoned for their projects. It is not because of the Route 1 corridor vitalization or Route 40 vitalization or the fact that huge shopping centers or grocery stores are sprouting up; it is not even because the County prides itself on having excellent services and fantastic parks. These are the things that may draw people here, but the primary characteristic that defines this County are its people, their dedication to their education and work, their dedication to community and their dedication to their children.
            Now, it appears that rather than foster this dedication for which our residents are known, the County wants to quell the ability of many people to work from their homes and either prevent them from doing so or place so many constraints on doing so that these very people who love this County will be forced to move elsewhere or seek employment elsewhere, leading to the decline in the very attributes that define us as a County worthy of distinction.

DPZ Cannot and Should not be Regulating Business
First, we believe that this proposed regulation requiring permits for Home Occupations is stepping into territory that should not and cannot be regulated by DPZ or by the County as a zoning regulation. Nowhere in the Land Use Article of the Annotated Code of Maryland is there authority for the County, as a zoning regulation, to regulate business. Title 4, Sections 4-101, et seq., of the Land Use Article of the Annotated Code of Maryland set forth the powers granted to the County by the State to regulate use of land. Powers not expressly granted to the County are reserved to the State.
While the enabling provisions of the Land Use Article do grant the local counties the power to regulate the use of privately owned property, any regulation must be based on a determination that such regulation is necessary for the health, safety, comfort and welfare of all persons in the community. That is why zoning as a whole has withstood countless challenges over the years – because the overall welfare of the community is and can be the basis for zoning regulations. In the case of the instant regulation proposal, there is no overriding public interest that can be served by the regulation as now drafted.
Further, the proposed regulation seems to be attempting to regulate professions or professional offices by reference to professional offices. However, the State has not granted any powers to this County (or any other counties) to regulate professions or businesses. See, Business Occupations and Professions Article, Titles 1 through 13, of the Annotated Code of Maryland, and Business Regulation Article, Titles 1 through 18 of the Annotated Code of Maryland/

Neither DPZ nor any County Agency Should be Regulating What Happens Inside People’s Own Homes
We believe the regulation interferes with basic constitutional rights to be free to do what we please in our own homes, so long as we are not bothering our neighbors, creating a nuisance, or engaging in criminal activities (which are enforced by our police and law enforcement agencies and not by DPZ). Yet, DPZ wants to come into our homes and require us to provide perhaps proprietary or classified information about the business we conduct.

The Regulation is Void for Vagueness
Last, the regulation as written is so fraught with vagueness, mistakes and uncertainty that any challenge would likely be upheld. Examples are:
1.    The proposed regulation states that professional offices, which are licensed by the state, are allowed; however, professional offices are not licensed, professional people are licensed.
2.    The regulation does not distinguish between people who have their own businesses and people who work for others from their own home. Under the regulation, if two people who live in a residence both happen to work from home full time, that business would need to
3.    Net floor area is not defined.
4.    There is no definition of “sale or rental of commodities.” What about internet sales? What about a sales engineer who arranges a call to a customer from her home, or a consultant who lands a deal with a client from his home office computer?
5.    The regulation fails to state what “authorized” by covenants or property managers of an association means. Does that mean that there must be an HOA Board decision authorizing the use, or just that the covenants allow the use? Who will be interpreting the covenants?
6.    There is no indication as to how this will be enforced. Will a person who earns a living from a home office receive a violation notice stating that they must cease and desist until they can attend a hearing or obtain a conditional use?

The Regulation Will have a Chilling Effect on the Ability of
Many Residents to Earn a Decent Living
This proposed regulation would require any person who uses their home for a business purpose to request a permit from DPZ or have a person who conducts a home occupation be subject to being shut down if a permit or conditional use is, for some reason, not granted. The undersigned residents are fortunate in that they practice in the realm of land use, business and real estate and had notice (albeit at the last minute while reading through the myriad of zoning regulations proposed) of the proposed regulation. Yet, because there is no process for notifying all of the residents who may be affected by this proposal (publication of the regulations on the County website is not adequate notice for such a regulation), most of the people who will be affected will have no idea that the regulation was passed until an inspector shows up at their front door.
This regulation purports to regulate use of property, but in fact it allows DPZ to require information about what a resident does inside his or her own home in connection with that person’s business. Further, amazingly, it would prohibit any person from having a Tupperware party, a Longaberger party, or having a Mary Kay makeover party. Many families in Howard County rely on a second income from this type of work.
It is easy for government employees with secure jobs and excellent benefits to look at this as just another regulation that allows DPZ to address complaints made when a person’s neighbor is having a Pampered Chef party and there are too many cars parked on the street, or when a home business has a few employees who quietly come and go during the day. But what these well-paid government employees do not recognize is that all of this is being done in order to make a living.
It astounds us that DPZ seems to have gone above and beyond to cater to those who want to build high-density apartments close to single family neighborhoods, to allow mixed use centers in what used to be clearly residential areas, and to allow intense business uses in existing residential areas, all with the effect of eroding the standard of living to which many in this county have become accustomed.  But now the County wants to shut down the livelihood of many of those who fight the hardest to maintain the standard of living and, frankly, to be able to pay their mortgage.
Many people in this County work from their homes – they telecommute, consult, sell, provide advice, prepare tax returns, tutor children and make a living in this new age of electronic communications. How can you tell a consultant who runs a business from home that he or she cannot do so anymore because they cannot obtain authorization from their HOA which is required for a permit, or that they have to go through the conditional use process in order to be “legally” doing their job?
Why is DPZ concerned about people who cannot afford the housing prices in Howard County, but not concerned about the people who are making a living working from their home because they cannot afford commercial space?
The negative ramifications of this proposed regulation cannot be overstated. You will have a multitude of people prevented from making a living, or an underworld of people who work from home, afraid to tell anyone they are breaking the law by doing so.
If parking is the problem, then regulate parking.
If signs are a problem, then regulate signs.
Surely there are better ways to handle the occasional complaint of a neighbor who moved into a neighborhood but does not now like people parking on their street or carrying loads of baskets or make-up to their cars to deliver to customers. But, do not force us - or anyone else - to provide to DPZ sensitive information about our business and our employees, and please do not allow a regulation to stand that allows a DPZ inspector to come into our homes and measure the number of square feet that we use for our work.
We implore Howard County to look at this closely, and stop this in its tracks. And then we request that the Howard County leaders, if they truly believe the health, safety and welfare of our community requires regulation of home business, work with people who actually operate home businesses and, within the confines of the County’s authority, devise a way to achieve whatever goals are intended to be met by this proposal.
For the actual text of the proposed regulations, you may go to the Howard County website: http://www.howardcountymd.gov/compzoning.aspx?id=6442466051 and click on “Text Amendments.” That website also describes the Comprehensive Zoning process.


1 comment:

  1. Howard county should be supporting and applauding those citizens who choose to work from home. They are cutting down on the use of fossil fuels and helping ease congested roads in Howard Co, thereby cutting down comute times for those that are unable to telecomute.

    I have many friends in Howard Co and I take great offense to having my privacy invaded in this manor! Yes, my Constitutional Rights as a citizen in what I thought was a FREE country!

    This is the second major infingement of the unconstituional acts of government I have encounted in the past week. I am appauled at what elected and appointed officials think they can get away with! I will be following the outcome of Howard Co zoning. I was fortunate to be able to stay home and raise my children for 10 years. I made ends meet by being a Longaberger consulatant for 12years, without which we would have struggled.
    Rolinda Collinson
    Anonymous was the only choice I had.