2004 ANNUAL TOWN MEETING AMENDMENT TO ZONING BYLAW HOME OCCUPATIONS

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1 2004 ANNUAL TOWN MEETING ARTICLE 8 AMENDMENT TO ZONING BYLAW HOME OCCUPATIONS RECOMMENDATION The Planning Board recommends that Article 8 be APPROVED. BACKGROUND (Note: This report includes information and recommendations developed by Taintor & Associates, consultants funded by a grant obtained through the Commonwealth under executive order 418.) Proposal: This article refines and updates the definitions of home occupations by allowing uses based on their impacts rather than attempting to compile a list of all possible home-based uses, which are usually rendered obsolete by changes in technology, market trends and work patterns. The current bylaw limits home occupations to the exercise of personal or professional skills in the fields of music, dramatics, arts and crafts and academic pursuit and the giving of instructions or lessons, for compensation, in such skills, and also the performance of custom work of a domestic nature, such as dressmaking, millinery, and clothes washing. As currently written the bylaw does not allow telecommuting or many other home-based businesses for which there is greater demand due to job restructuring in a changing economy. The proposed changes are intended to accommodate limited business opportunities for Lexington residents, while at the same time protecting residential neighborhoods from possible adverse impacts from these activities. History: The definition of home occupations has remained the same since it was first placed in the Zoning Bylaw in At that time home offices for physicians, dentists, opticians and real estate brokers were prohibited within residential zones. In 1987 the Bylaw was amended to allow, by special permit, an office of a physician, dentist or other professional person in a residential district with the same restrictions on client visits and non-resident employees that exist today. Nothing regarding home occupations or other commercial uses within residential zones has been modified in the last seventeen years. Lexington s Comprehensive Plan recommends that the Zoning Bylaw s regulations on home occupations be modernized in order to expand the options for home-based businesses in the Town. An expansion of home-based businesses will enhance the climate for local entrepreneurs, provide a legal basis to embrace recent start-ups created in response to the economic downturn, and at the same time remove some peak hour trips by residents who no longer have to drive to work. Since 1990, thirty-four residents have received special permits for home occupations from the Zoning Board of Appeals. Of these special permits, twenty have been for home offices, six for psychotherapy practices, two for telephone answering services, and one each for a dentist, art

2 Article 8 2 gallery and acupressure therapy. It is likely that there are many more home businesses in existence in Lexington that are operating without a special permit. The proposed changes would provide an opportunity for current home business, if reasonably operated, to be permitted. The Zoning Bylaw currently addresses home-based businesses by defining the term home occupation ( 135-8, p ) and specifying use regulations for two levels of home occupation and for professional home offices ( , Table 1, Part A, Lines 1.24 and 1.25). The definition of home occupation is as follows, reformatted to call out its key elements:. Certain occupations engaged in within an existing dwelling or a building accessory thereto by a resident thereof, provided that: there shall be no sign, advertising device, exterior storage, or other exterior indication of the home occupation, and such occupations are limited to the exercise of personal or professional skills in the fields of music, dramatics, arts and crafts and academic pursuit and the giving of instructions of lessons, for compensation, in such skills, and also the performance of custom work of a domestic nature, such as dressmaking, millinery, and clothes washing The Bylaw s use regulations differentiate among home occupations principally in terms of the number of customers or clients who visit the dwelling, but there is also some discretionary authority to impose limitations when a special permit is involved: 1.24 Home occupation in which there is no exterior evidence of the occupation, no employee who is not also a resident in the dwelling, and not more than one customer or client visits the dwelling at one time Home occupation, or office of a physician, dentist or other professional person, residing in the dwelling, provided there is no exterior evidence of the occupation and each employee is also a resident in the dwelling; may have customers or clients visit the dwelling. Permitted as of right in RO, RS, RT, RM and CN districts Special permit required in RD district Special permit required in all residential districts Permitted as of right in CN district As accessory uses, home occupations and home offices are limited in area to 25% of the area of a lot or 25% of the gross floor area on a lot ( G). These regulations are less restrictive than in many other communities, in several respects: Home occupations in Lexington may be located in the principal dwelling or in an accessory

3 Article 8 3 building. Many communities limit the home occupation to the dwelling itself. The Bylaw does not specify any off-street parking requirements for the accessory use. There are no restrictions on hours of operation; customer visits, deliveries, etc. These may all be considered positive attributes of the existing regulations in terms of accommodating home-based businesses. However, the lack of controls on intensity of use and off-site impacts may also be potentially detrimental to the residential character of the neighborhood. Some limitations of the existing regulations include: The definition of home occupation and the description of home office represent a narrow range of specified uses that do not include many low-impact or no-impact home office uses. These prohibited uses include word processing, data processing, accounting and bookkeeping, and offices of sales representatives where no sales are conducted on the premises and no goods are shipped to or from the premises. Because home occupations are permitted as accessory uses, they are subject to the definition of accessory use which requires that such uses be subordinate and customarily incidental to the principal building or use. This definition excludes many new and emerging occupations that have little or no neighborhood impact, but are not customarily incidental to residential use, including technology-based uses such as data processing, word processing, and Internet research. Also, the spatial restriction for accessory uses (25% of gross floor area) would likely have a prohibitive effect upon certain uses as home occupations. The regulations do not address off-street parking needs or hours of operation. (These can be issues, particularly for higher-level uses that permit more than one customer or client at a time.) The updated home occupation regulations incorporate the following attributes: 1) A focus on the impacts of the use, rather than an attempt to define specific uses. Impacts of concern include: traffic (both customer/client traffic and delivery vehicles), parking (employees and customers), noise, and visible changes to the property that alter the primarily residential character of the neighborhood (including signs, outside storage, and display windows). 2) A hierarchy of use categories based on the impacts, including uses permitted as of right, uses that require a special permit, and prohibited uses. 3) Accommodation of individual or small-group instruction (such as music lessons) as a customary home occupation that does not conform to the low number of client visits expected of business uses in residential districts. The recommended approach to changing the home occupation regulations consists of three parts: 1) revised definitions; 2) changes to the table of accessory use regulations reflecting the new definitions; and 3) creation of a new set of detailed performance standards, to be inserted in Article V of the Zoning Bylaw (Supplementary Use Regulations, Residential Uses), which includes regulations for other accessory residential uses such as accessory apartments and bed-andbreakfast homes.

4 Article 8 4 PUBLIC HEARING A duly advertised public hearing was held on February 11, Mr. Harden opened the hearing at 7:40 p.m. There were approximately a half-dozen people in the audience. Ms. McCall-Taylor gave a brief overview of the article, explaining that it was a change from a list of allowed uses to an impact-based regulation. Ms. Judith Uhrig and Mr. Nyles Barnert of the Zoning Board of Appeals expressed some concerns over aspects of the amendment that would restrict certain uses that are now allowed. They suggested changes that would allow the Zoning Board of Appeals to regulate the number of clients that could visit the home at one time, thus allowing psychotherapists to hold group or family counseling sessions. They also thought that the hours of operation being proposed were too restrictive. Ms. Dawn McKenna asked if there had been any attempt to ascertain what types of home occupations are currently being conducted in town. Ms. Uhrig said that the Board of Appeals mostly sees requests for professional home offices. Mr. Galaitsis asked if the proposed changes would affect the Zoning Board of Appeals caseload. Mr. Barnert said it probably would not, as only major home occupations would come before the Appeals Board and the minor occupations would be allowed as of right. The hearing was closed at 8:05. The Board agreed to modify their proposal by extending the as-of-right hours of operation and allowing the Board of Appeals to authorize other hours by special permit and, in the case of a major home occupation, to only specify the total maximum number of customers or clients visiting the premises during a day and leave the distribution of those visits as a matter to be addressed by the special permit conditions. Upon further deliberation at a public meeting, the Planning Board decided to remove the sentence from the proposed definition of Home Occupation, Instruction that read No more than two students can receive instruction at any time, with the exception of no more than four recitals per year. This is in keeping with the current bylaw that does not restrict the number of students receiving instruction. The Board felt that this was warranted because they knew of no complaints about the impacts of home instruction so they felt there was no need to change the impact standards by making them more restrictive. MOTION The actual motion is as follows, except that it will not include the text in italics, which is included here for informational purposes only: 1. DEFINITIONS In 135-8, delete the existing definition of Home Occupation : HOME OCCUPATION -- Certain occupations engaged in within an existing dwelling or a building accessory thereto by a resident thereof, provided that there shall be no sign, advertising device, exterior storage, or other exterior indication of the home occupation, and that such occupations are limited to the exercise of personal or professional skills in the fields of music, dramatics, arts and crafts and academic pursuit and the giving of instructions or lessons, for compensation, in such skills, and also the performance of custom work of a domestic nature, such as dressmaking, millinery, and clothes washing provided that equipment utilized is such as is customarily incidental to residential occupancy.

5 Article 8 5 and insert in its place the following new definitions: Home Occupation Any business, occupation, or activity undertaken for gain within a residential structure, by a person residing in the structure, that is incidental and secondary to the use of that structure as a dwelling unit. Home Occupation, Instruction A home occupation that consists of teaching that takes place inside the dwelling unit of the instructor. Typical instruction includes music lessons and academic tutoring. Home Occupation, Minor A home occupation with no nonresident employee, partner, or contractor working on the premises; no more than one customer or client visiting the premises at a time; and no more than 6 customers or clients visiting the premises over the course of a day. Home Occupation, Major A home occupation subject to a special permit with no more than one nonresident employee, partner, or contractor working on the premises; and no more than 10 customers or clients visiting the premises over the course of a day. 2. USE REGULATIONS In Article IV, , Table 1, Part A, delete lines 1.24 and 1.25: Line 1.24 Home occupation in which there is no exterior evidence of the occupation, no employee who is not also a resident in the dwelling, and not more than one customer or client visits the dwelling at one time 1.25 Home occupation, or office of a physician, dentist or other professional person, residing in the dwelling, provided there is no exterior evidence of the occupation and each employee is also a resident in the dwelling; may have customers or clients visit the dwelling RO RT RM RD* CN CBS CS CB CRO CM RS CLO Y Y Y SP Y N N N N N SP SP SP SP Y N N N N N and insert in their place the following: Line RO RT RM RD* CN CRS CS CB CRO CM RS CLO 1.24 Home Y Y Y SP Y N N N N N occupation, instruction (see ) Home Y Y Y SP Y N N N N N occupation, minor (see ) Home occupation, major (see ) SP SP SP SP Y N N N N N

6 Article PERFORMANCE STANDARDS In Article V, insert a new to address performance standards for home-based businesses: A. Intent. The provisions of this section are intended to accommodate limited business uses in dwellings, conducted by the residents thereof, in order to promote wider economic opportunities for Lexington residents, while at the same time protecting residential neighborhoods from adverse impacts. B. Applicability. The provisions of this section shall apply to all permitted home occupations except where specifically stated otherwise. C. Accessory Use. Home occupations shall be considered accessory uses to the principal residential use of a dwelling, and shall be conducted by a resident of the dwelling. A home occupation shall be incidental to the principal use as a residence, but need not be a use that is customarily associated with residential use. D. Maintenance of Residential Character. There shall be no exterior indication of the home occupation, except as provided herein in the form of off-street parking. (1) The business shall not require alterations to the exterior of the building. (2) There shall be no exterior storage of materials, supplies, or equipment related to the business. (3) There shall be no sign indicating the business. E. Number of home occupations. More than one home occupation may be established in a dwelling, subject to the use regulations of , but all home occupations combined shall not exceed any of the standards of this section. F. Hours of Operation: Business visits to a home occupation shall be limited to the hours from 7:00 A.M. to 9:00 P.M., unless otherwise authorized by Special Permit. G. Employees. (1) A minor home occupation or instruction home occupation shall have no nonresident employee, contractor, or partner. (2) A major home occupation shall have no more than one full-time nonresident employee, contractor, or partner (or the equivalent thereof) on the premises at any one time. (3) The number of nonresident employees working at off-premise locations is not limited, provided that such employees do not regularly visit the premises. H. Commercial Vehicles, Pickups and Deliveries. (1) Commercial vehicle parking shall be subject to Article IV, Table 1, Part A, line (2) Vehicles used to deliver goods to the home-based business shall be limited to passenger vehicles, mail carriers, and panel trucks or small vans such as used by express package carriers and office supply companies. (3) Pickups and deliveries shall not exceed those normally and reasonably occurring at a residence and shall not include more than an average of two pickups and deliveries of products or materials per day. I. Parking. A major home occupation shall provide off-street parking spaces for the home occupation, in addition to two spaces for the dwelling unit, as follows: (1) One parking space shall be provided for a nonresident employee, partner, or contractor regularly working on the premises;

7 Article 8 7 (2) When a home occupation requires a special permit, the Board may require, at its discretion, the provision of up to one parking space for each client or customer expected to visit the premises at one time, if site-specific conditions warrant it. Provision of such a space shall be in addition to parking required for the dwelling unit and nonresident employees. J. Environmental Impacts. The equipment used by the home occupation and the operation of the home occupation shall not: (1) create any heat, glare, dust, odors, or smoke discernable at the property lines; (2) exceed the noise standards in the Lexington Noise Control Bylaw (Code of Lexington, Chapter 80, Sections 1 through 11 inclusive); (3) create any electrical, magnetic or other interference off the premises; or (4) use and/or store hazardous materials (as defined in Massachusetts General Laws, Chapter 21E, Section 2) in excess of quantities permitted in residential structures.

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