Tuesday, March 18, 2014

The SLUP process has always been wrong for regulating home occupations

Karma is a b***h.

Less than five months after Heneghan, Deutsch, Bonser, and Shortal gutted the carefully-crafted permitting process for home occupations (with attention to every detail to avoid blatant nuisances while making the law internally consistent) a SLUP application has shed light on their hasty decision and the problems created in its wake.

First some background.

In spite of the widespread practice of home occupations in Dunwoody with very few confirmed complaints, Dunwoody leadership has broken away from other cities and imposed a grueling public process.  The first time a SLUP for a home occupation with customers was pursued, it was a disaster, both for the applicant and the membership numbers of the HOA involved.  City government didn't come out of it looking too good, either.

Next came the zoning rewrite.  Home occupation regulations were on the agenda because those trying to drum up opposition to them made it a "hot button'.  It really isn't a hot button, but Heneghan and Deutsch and their friends insisted on beating the drum.
During the zoning rewrite, the sounding board realized that the purpose of a SLUP (Special  LAND Use Permit) could be misused for home occupations.  SLUPs were intended to change the development character of a lot.  Home Occupations, in the original zoning rewrite, are only intended to allow business activities by the full-time occupant of the property as long as they do NOT change the character of the neighborhood, or generate activity beyond what is considered normal in that area.   Totally different things. So the consultants developed a permitting process that would have made it simpler for home business owners to comply, without the public dog-and-pony show that leads to the histrionics and slander that the first applicant endured.  The added benefit of the permitting process is that it could be modified to include whatever limitations you wanted:  time limits, public notifications, periodic reporting - anything!  Plus the public was still to be notified within a certain radius, comments both pro and con could be submitted and considered, anonymous complaints could be filed to Code Enforcement, the whole nine yards.  All the while, the same stringent standards of home occupation regulations were in effect:  certain occupations were banned outright, noise and smoke and the like were banned - nothing on that end was loosened, in fact, they were more clearly defined for better regulation.

The new code was passed unopposed by Community Council and Planning Commmission.  There wasn't even any discussion on the matter.

But at City Council itself, the political machine was grinding away.  Everyone expects Shortal to try to ban acknowledgement of home businesses outright, he's the only one whose ideas of a "neighborhood" are consistent, even if they are outdated.  Heneghan and Deutsch knee-jerked to that one element:  they didn't bother to acknowledge that the type and operations of home businesses were still very strict.  They objected only to the permitting process.  They demanded that the dog-and-pony SLUP for home businesses be maintained with absolutely no changes at all.    I'm not convinced they even read it.  Further, these same council members demanded that city staff research the home business regulations of other cities to see how Dunwoody matches up.  That research showed that most other major cities that permit home occupations (some comprising as much as 50% of the commercial base) had far fewer regulations in place with no degradation of "community quality.)  The "research" was discarded as it did not support the foregone conclusion.

 On top of that, a member of Community Council deliberately misrepresented the content and intent of the code to smear home business owners and inflate opposition.

To add to the irony, these are the same people who think back yards should house farm animals without the homeowner having to submit a single piece of paper and that complaints about animal nuisances should require several signed statements from neighbors, instead of anonymous reporting for other code enforcement problems.  That's what we call a "double standard".

Upon this action, I had a conversation with a couple dozen fellow home business owners about the outcome.  (Only a small fraction of the several hundred in operation but it was the best one person could do, informally.)  All of them were disappointed that even though they get on with their neighbors, they are considered "nuisances" by definition.  They all decided that they would simply carry on with business as usual and refuse to comply - employees, contractors, customers, or whatever.  None of them have had a complaint lodged against them.

That brings us to the present day.  A potential home business owner has filed a SLUP to operate a very small scale home daycare center to supplement her income while being a full time parent and to serve her local community.  I find it miraculous that anyone would voluntarily enter this process considering its history.

So what's the problem?  The process so far has not seen too many of the mistakes that were made the first time around.  (I've been withholding commentary on the process as I am not living in the neighborhood and therefore not impacted by it and I wanted to see what would happen before analyzing it here.)

The problem is that the Planning Commission (the first official committee to publicly review the application) asked the applicant to accept a 10-year limit on the permit.  She readily agreed, as well as answering all concerns that were brought to the meeting by nearby homeowners.  According to city legal counsel, SLUPs can't be time-limited.  And wouldn't you know it, Heneghan is all freaked out because his ASSumptions about being able to limit the time frame of SLUPs isn't legal.

This is what happens when certain council members do not consider the outcomes of their decisions before implementing them.  This is what happens when you  make assumptions about the future without talking to your lawyers.  This is what happens when you discuss or enact legislation that you haven't read, or are trying to manipulate by talking out of both sides of your mouth.

John - this snafu is your fault.  You were so eager to keep home occupation SLUPs in place that you didn't stop to consider that they regulate property use the wrong way - SLUPs regulate the land, not the full-time occupant.  The Zoning Sounding Board and Community Development tried to circumvent that problem while "preserving neighborhoods" and you totally blew them off.   You threw some of your "friends" under the bus and for what?  Your decision wasn't legally sound or even consistent with your previous actions or other legislations you want to see enacted.  A true epic fail.  I hope the first comment you make on March 24 is that you own up to your mistake and revisit the administrative permitting process that was recommended in the initial rewrite.  

Try to make a decision that mitigates the impact of a use, and doesn't pass personal judgement on the alleged intention of a homeowner.  Try really, really hard.