HomeMy WebLinkAboutItem 10 First Reading of Ordinance for LDC Amendment to Chapter 180, Articles II and V - Home Base Businesses House Bill 403 ocoee
florido
AGENDA ITEM COVER SHEET
Meeting Date: November 2, 2021
Item # /0
Reviewed By:
Contact Name: Anoch P. Whitfield1 Department Director: / / _
ff
Contact Number: Ext. 1016 City Manager: 4g,•1/
Subject: Land Development Code Update
House Bill 403 Home-Based Businesses
Commission District: City-wide
Background Summary:
House Bill 403, which was signed into law on June 29, 2021 and which became effective as of July 1, 2021,
amended Section 559.955, Florida Statutes (ES.), to restrict local governments from enacting or enforcing
any ordinance, regulation, or policy or take any action to license or otherwise regulate a home-based business,
except in accordance with Section 559.955, F.S.
Discussion:
Section 559.955, F.S., states that a home-based business that operates from a residential property may
operate in an area zoned for residential use, may not be prohibited, restricted, regulated or licensed in a
manner that is different from other businesses in the City's jurisdiction, and is only subject to applicable
business taxes under Chapter 205, F.S.
HB 403 does provide, however, general standards for the operation of a home-based business in residential
property. A copy of HB 403 is attached; however, below is a summary of the pros and cons of HB 403 for the
City:
PROS CONS
1. Employees who work at the dwelling must also 1. Local governments may not prohibit, restrict,
reside in the dwelling; however, up to two (2) regulate or license a home-based business.
employees/independent contractors not residing in a manner different from other businesses
at the dwelling may work at the dwelling where in the local government.
the home-based business is conducted. Current
Code does not have a requirement that the 2. Retail transactions are permitted in the
employees/operator reside in the dwelling. residential dwelling only; however, incidental
business uses and activities may be
2. Heavy equipment (definition provided in Statutes) conducted at the residential property.
visible from the street may be regulated by the
local government. 3. A business operating in the dwelling whether
in whole or in part is considered a home-
3. Parking needs generated by the business may based business. Thus, City can no longer
not be greater than that normally generated by a limit the percentage or amount of area within
residential use without a home-based business, the dwelling that can be used for the home-
and parking must be in legal parking space(s), based business.
must be on an improved surface, and may not be
within the ROW or on/over any sidewalks.
4. Use of the property must remain primarily
residential (home-based business is secondary).
5. Must still pay applicable Local Business Tax.
Home-based business regulations currently existing in Section 2-4(154), Article II as a definition and in Section
5-17, Article V, as development standards. Staff's specific recommendations are provided in the attached
draft ordinance; however, below is a summary of staff's recommended changes to the Code:
Amendments to Section 2-4 Definitions in Article II:
• Add a new definition for the term "heavy equipment" using the definition provided in HB 403; and
• Shortening the current definition of "home occupation" by removing development standards from the
definition and keeping a simplified definition for a home occupation.
Amendments to Section 5-17 Home Occupations in Article V:
• Require that employee/operator must reside at the dwelling;
• State that only up to two (2) employees may work at the dwelling/residential property who do not reside
at the residence;
• Require that parking and traffic generation generated by the home occupation or home-based business
shall not exceed that generated by a home without the home occupation or home-based business;
• Require that parking must be provided on-site and may not be within the right-of-way, on or over
sidewalks, on any unimproved surface, or within any required front yard;
• Heavy equipment shall be completely screened from view from the right-of-way or adjacent properties;
• Require that home occupation/home-based business activities shall not create noise, vibration, glare,
fumes, odors, or electrical interference detectable to the normal senses off of the lot on which the
business is conducted;
• State that use of the dwelling or residential property shall maintain the residential character of the
property and surrounding neighborhood;
• Include uses and activities that would not be permitted as home-based businesses due to their potential
impacts on surrounding neighbors and the residential character of the neighbhorhood,
• Upated the list of business activities that would be deemed home-based businesses, and
• Require that home occupation or home-based. business be subject to the payment of applicable
business taxes under Chapter 205, F.S.
Issue:
Should the City Commission approve the adoption of updates to Section 2-4 of Article II and Section 5-17 of
Article V of the Land Development Code to incorporate the legislative directives from House Bill 403 regarding
home-based businesses?
Planning and Zoning Commission Recommendation:
The Planning and Zoning Commission (P&Z) reviewed House Bill 403 and the proposed Land Development
Code Updates. The P&Z was in agreement with staff's recommendations for the proposed LDC updates;
however, there was discussion relative to:
• Clarification on the requirements for screening of heavy equipment, such as a backhoe in the backyard,
• Signage,
• Residential character,
• Parking,
• Types of home-based businesses, and
• Impacts on existing community residential homes.
Staff shared that over the past several months, the majority of the applications received for home-based
businesses were for offices of convenience, tele-health, and handyman/general household services.
Additionally, the presence of heavy equipment, such as backhoes and other heavy construction vehicles, in
the backyards of residential lots would not be expected in a residential neighborhood and would detract from
the residential character and, as such, would not be compliant with HB 403. HB 403 grants local governments
the authority to regulate the parking and storage of heavy equipment if they are visible from the street or
neighboring property, thus other equipment would be acceptable so long as they can be screened from the
street and adjacent residential uses. Staff also explained that the proposed ordinance does not impact existing
or future community residential homes as they are regulated by Section 419.001, Florida Statutes, and are
required by Statutes to be treated as a residential use.
Following discussions, the P&Z unanimously voted to recommend approval with a condition to add a
requirement for a six (6) foot opaque screening all around heavy equipment.
Staff Recommendation:
Staff has revised the proposed ordinance to add the 6-foot opaque screen and recommends that the Honorable
Mayor and City Commission approve the adoption of updates to Section 2-4 of Article II and Section 5-17 of
Article V of the Land Development Code to incorporate the legislative directives from House Bill 403 regarding
home-based businesses.
Attachments:
Chapter 2021-202, Laws of Florida for House Bill 403
Draft Ordinance
Financial Impact:
None
Type of Item: (please mark with an "x")
Public Hearing For Clerk's Dept Use:
X Ordinance First Reading Consent Agenda
Ordinance Second Reading Public Hearing
Resolution Regular Agenda.
Commission Approval
Discussion&Direction
Original Document/Contract Attached for Execution by City Clerk
Original Document/Contract Held by Department for Execution
Reviewed by City Attorney
Reviewed by Finance Dept.
Reviewed by 0
CHAPTER 2021-202
Committee Substitute for House Bill No. 403
An act relating to home-based businesses; creating s. 559.:955, F.S;
prohibiting local governments from taking: certain actions relating to
the licensure and regulation of home-based businesses; specifying condi-
tions under which a business is' considered a home-based business;
defining the term"heavy equipment"; authorizing home-based businesses
to operate in areas zoned for residential use; specifying that home-based
businesses are subject to certain business taxes; authorizing adversely
affected,current or prospective home-based business owners to challenge
certain local government actions; authorizing the prevailing party in such
challenge to recover specified attorney fees and costs; providing that
certain existing and future residential association declarations and
documents are not Superseded by the act; providing that certain local
laws, ordinances, or regulations are not are not superseded; providing an
effective date:
Be It Enacted by the Legislature of the State of Florida:
Section 1. Section 559.955, Florida Statutes,:is created to read:
559:955- Home4Yasidibnaiii-e-s-ses;--lo-eal goveniment restrictions,--
T (1) ?local-governments may not enactor enfot ce-any-nrdinance;
policy or:take any action toJiceñse or otherwise retilkeialioino-
b-6.--sed-busine-s8 Violation-of thiS--Seetion-.-
:2 Aliiiiiie;ba-led_huSities-s that as
provided in subsection (3):
(a) Way:Oppratejn-an area:zoned-fdr—rdkdiiiffalafia.
(b) May not be-prohibit6d,-fe-Strieted,--regiilgt0-,-or lid6nsedin a manner
that is different from other businesses in a local'government's jurisdiction,
except as otherwise provided in this section.
(c) tinderidliaiite-i1205'in the
county and municipality in which the home-based business is located.
;7(3/ For purposes of this section, a eimaidefed.-a--h-ofrieljased,
IniSilieSS.ifit operates, in.-whole or-in-pa:ff,-froir residential property àfld
_
defs_therfolioWirik-ariteria:
t:ta)1 The-employeeS,,of the business who work-at the-residential-a*Telling
'must also-resid-e-in the residential dwelling- -exce t that up-ta-a-ttital-oftwo
employees-or-jndePendent contractors who do not reside-at-the TeSidehtial
dwelling niay-Wdrk-at-the-_-b-tisiffe-SS:',The biAines inayThave additional
remote employees that do not work at the residential dwelling.
1
CODING: Words stricken are deletions; words underlined are additions.
Ch. 2021-202 LAWS OF FLORIDA Ch. 2021,202
(b) .Rarkiii-grerateettii the'husineaiidertiViti-ea'of the home-based business
complies with loearioning reqfiireinerits and the need forparkirig generated,
,by-the business'may net be-greater-in'volume than would:normally-be
expected at: aTaiiiiilar realdeilee-Where- no :biraifiess is- conducted.- Local
governments may regulate the use of vehicles or trailers operated or parked
at the business or on a street right-of-way, provided that such regulations
are not more stringent than those for a residence where no business is
conducted..Vehielea-and trailers Usedin-cernie-Ction.'with-the blisineaSintiat
be-parkedifileg-al parking-4)&6a that are not located within-the riga:4=
way;-on-or:overa-aidewalk,-or-on-any Unlit:proved-Sfirfaces at-therei derice
Local governments may regulate the parking or storage of heavy equip-min
attlie'Vu7siiiesavadch is visible from the street or neighboring property For
purposes of this ara a h the
industrial, or agricultural vehicles,.equipment; or machinery.
!As-viewed-from the street; -th.Ota-e Of the_resid.eritial propertY-is,
consistent-withrtlie-iiies OfthoreSidentiarareas-that surrelind-th6-prop-eity,
External modifications made to a_residential dwelling to accommodate a
home-based business 7 must-caiiforinifoTthe residential h'tract'erähd
architectural__-_deathetics of. tfib-,fieiglib6rlidoct., The home-based business
may not conduct retail transactions at a structure other than the residential •
dwelling;however,incidental business uses and activities may be conducted
at the residential property.
(d) The activities of the home-based business are secondary to the
property's use as-a residential dwelling.
(e) The business activities -conifigy—Withi any 4616V-dn. Or
i---e-g-ulations-with:respect-to.signago and equipment or_processes•that create
heat; smoke, dust, glare, fumes, or noxious- odera. Any local
regulations on a business-With respect to noise,vibration,heat,.smoke, dust,
glare, fumes, or noxious odors may not be more stringent than those that
apply to•a residence where no business is conducted.
(f) All business activities comply"With any releVant-lobalatate, and'
-federal:re- latitiffs-Witli-rel-e6(to7the. use, storage, or disposal of any
corrosive; combustible; or other hazardous or-flaminable-materials -or: -2
'liquids. Any local regulations on a business with respect to the Use, storage,
or disposal of any corrosive, combustible, or other hazardous or flammable
materials or liquids may not be more stringent than those that apply to a
residence where no business is conducted.
(4) Any adversely affected current or prospective home-based business
owner may challenge any local government action in violation of this.section.
The prevailing party in a challenge may recover reasonable attorney fees
.and costs incurred in challenging or defending the action, including
reasonab ,gppiittorney fees and costs,
(5) The application of this section does not supersede:
2
CODING: Words strieken are deletions; words underlined are additions.
Ch. 2021-202 LAWS OF FLORIDA Ch. 2021-202
(a) Any current or future declaration or declaration of condominium
adopted pursuant to chapter 718, cooperative document adopted pursuant to
chapter 719, or declaration or declaration of covenant adopted pursuant to
chapter 720.
(b) Local laws, ordinances, or regulations related to transient public
lodging establishments, as defined in s. 509.013(4)(a)1., that are not
otherwise preempted under chapter 509.
Section 2. This act shall take effect July 1, 2021.
Approved by the Governor June 29, 2021.
Filed in Office Secretary of State June 29, 2021.
3
CODING: Words stricken are deletions; words underlined are additions.
ORDINANCE NO. 2021-
(LDC Update for House Bill 403
Home-based Businesses)
AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA, AMENDING
SECTION 2-4 AND SECTION 5-17 OF THE CITY OF OCOEE LAND
DEVELOPMENT CODE, RELATING TO HOME-BASED
BUSINESSES; PROVIDING FOR SEVERABILITY; PROVIDING FOR
CODIFICATION; PROVIDING AN EFFECTIVE DATE.
WHEREAS, as provided in Article VIII of the Constitution of the State of Florida and
Chapter 166, Florida Statutes, the City of Ocoee (the "City") enjoys all home rule authority,
police power, land development and zoning authority, and governmental and proprietary powers
necessary to conduct municipal government and perform municipal functions; and
WHEREAS, the City may exercise any power for municipal purposes, except as
expressly prohibited by law; and
WHEREAS, House Bill 403 ("HB 403") was approved by the Governor on June 29,
2021 and became effective on July 1, 2021 amending Section 559.955, Florida Statutes (F.S.)
relating to restrictions upon local governments regarding the local regulation of home-based
businesses; and
WHEREAS, on October 12, 2021, the Planning and Zoning Commission held an
advertised and publicly noticed public hearing and recommended approval of an amendment
proposed by staff to revise Sections 2-4 and 5-17 of the City of Ocoee Land Development Code
("LDC") in accordance with Section 559-955, Florida Statutes, relating to home-based
businesses; and
WHEREAS, following advertisement and a duly noticed public hearing on the
Ordinance on November 16, 2021, the Ocoee City Commission approved the amendments to
Sections 2-4 and 5-17 of the LDC; and
WHEREAS, the Ocoee City Commission in good faith determines that this Ordinance is
in the best interest of the City and its residents and promotes the health, safety, and welfare of the
public.
NOW, THEREFORE,BE IT ENACTED BY THE CITY COMMISSION OF THE
CITY OF OCOEE, FLORIDA,AS FOLLOWS:
SECTION 1. AUTHORITY. The Ocoee City Commission has the authority to
adopt this Ordinance pursuant to Article VITT of the Constitution of the State of Florida and
Chapters 163 and 166, Florida Statutes.
SECTION 2. AMENDMENT OF THE LDC. Sections 2-4 and 5-17 of the City of
Ocoee Land Development Code are hereby amended to read as depicted in Exhibit "A" with
underlines representing additions and strike-throughs representing deletions.
SECTION 3. SEVERABILITY. If any section, subsection, sentence, clause, phrase,
or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, such portion shall be deemed a separate, distinct, and independent
provision and such holding shall not affect the validity of the remaining portion hereto
SECTION 4. CODIFICATION. It is the intention of the Ocoee City Commission
that the provisions stated in this Ordinance shall become and be made a part of the Code of
Ordinances of the City; and that sections of this Ordinance may be renumbered or relettered and
the word"ordinance" may be changed to "chapter", "section", "article",or such other appropriate
word or phrase in order to accomplish such intentions; and regardless of whether such inclusion
in the Code is accomplished, sections of this Ordinance may be renumbered or relettered and the
correction of typographical errors which do not affect the intent may be authorized by the City
Manager, without need of public hearing, by filing a corrected or recodified copy of same with
the City Clerk.
SECTION 5. EFFECTIVE DATE. This Ordinance shall become effective
immediately upon passage and adoption.
PASSED AND ADOPTED this day of , 2021.
ATTEST: APPROVED:
CITY OF OCOEE,FLORIDA
Melanie Sibbitt, City Clerk Rusty Johnson, Mayor
(SEAL)
ADVERTISED ,2021
READ FIRST TIME ,2021.
READ SECOND TIME AND ADOPTED
,2021.
UNDER AGENDA ITEM NO.
-2-
FOR USE AND RELIANCE ONLY BY THE
CITY OF OCOEE,FLORIDA; APPROVED AS
TO FORM AND LEGALITY
this day of ,2021.
SHUFFIH:LD LOWMAN&WILSON,P.A.
By:
City Attorney
-3-
EXHIBIT "A"
Changes are hereby made to Sections 2-4 and 5-17, as follows, with underline
representing additions and strike-through representing deletions:
ARTICLE II
***
§ 2-4. - DEFINITION OF TERMS.
***
(151) Heavy equipment: Commercial, industrial, or agricultural vehicles, equipment, or
machinery.
(154) Home Occupation: An occupation or a business operatina in whole or in part from a
residential property in an area zoned for residential use in accordance with Section 559:955,
Florida Statutes, and that meets the criteria established in Section 5-17, Article V.-conducted
enticely-in-a-dwelling-unitrprevicied-that
(a) No person other, than members of the family residing on the premises shall be
engagef31-iRsLish-oesupatien
(b)--Tile-utse-ef the dwelling unit for the home 000upation shalt be clearly-inoidental and
subordinate to its use for residential purposes by its occupants, and shall under no
circumstances change the residential character thereof;
fe- -T-ifier-e-shalt-be-410--ehange-iri-the-eutside-appeaFanee-ef--the-building-Of-pr-emisesr-GF
other visible evidence of the conduct of such home occupation other than one (1)
sign, not exceeding one (1).square foot in area, nonilluminated, mounted flat against
the wall of the principal building at a position not more than two (2) feet distance from
the main entrance to the residence;
(d)--Ne44eme-eceupatien-shal1-13e-eonelueted-in-any-aeeesselinck;
(e)---Pkie--Ileme--eGGLipatien--shall--eseupmece-than-thiFty7(-30)-pereent-ef--the4leer--ar-ea-of
the'residence, exclusive of the area of any open porch or attached garage or similar
space not suited or intended for occupancy as living quarters. No rooms which have
been constructed as an addition to the residence, nor any attached porch or garage
which has been converted into living quarters, shall be considered as floor'area until
tw€ 42-)-yeafs--afteF-thedateef-completion4hereefr-as-shewn-by-the-reeerds-in-the-Gity
Building Department;
(f) 'No traffic shall be generated by such home occupation in greater volumes than would
• normally be expected in a residential neighborhood, and any' need- for parking
generated by the conduct of such home occupation shalt be met off the street 'and"
other than in required front yard;
-4-
(g)—Ne--equipment--er-preGess--shall-49e--useel--in--sbieh-heme-eocupatien-whiell-ereates
noise, vibration, glare, fumes, odors orelectrical'interference detectable to the normal:
senses off the lot, if the occupation is conducted in a single family dwelling, or outside,
the dwelling unit if conducted in other than a single family dwelling. In the case of
electrical interference, no equipment or process shall be used,which creates visual or
audible, interference in any radio or television receivers off the premises, or causes
fluctuations in line voltage off the premises;
(h) The following shall not'be considered home occupations: Beauty shops, barbershops,
band instrument other' than a piano or dance instructor, swimming instructor, art
studio for group instruction, public diningfacility or tearoom, antique or gift shops,
photographic studio, fortune telling, outdoor repair, food processing, sale:of antiques,
reta11 sales; nursery school or kindergarten. The giving of group instruction shall' not
be deemed a home occupation
(i) The giving of individual instruction to one person, such as an art or piano teacher,
shall be deemed a home occupation, provided, however, that the provisions of
subpafagFaph-(h)--abeve-stialt 'to' prohibiting
occupation for those activities listed in subparagraph (h) above;
(j) Fabrication of articles such as are commonly classified under the terms "arts and
handicrafts" may be deemed a home occupation, subject to the other terms and
conditions of this definition;
(k)----A--herne--ocekwatiGn---shall--be--subjed-t -all-apialisable-Gity-eGeupatieaat4iGense-and
other business taxes.
ARTICLE V
§ 5-17. - HOME OCCUPATION.
A. Employees, including owner/operator, of the business working at the residential
dwelling must also reside in the.dwelling, except that up to two. (2) employees or
independent contractors who do not reside at the dwelling may work at' the
residential dwelling or engage in other business activities at the residential dwelling
or property.
A.B. The use of the dwelling unit for the home occupation shall be clearly incidental
and subordinate to its use for residential purposes by its occupants, and shall
under no circumstances change the residential character thereof;
&C. There shall be no change in the outside appearance of the building or premises,
or other visible evidence of the conduct of such home occupation other than one
(1) sign, not exceeding one (1) square foot in area, nonilluminated, mounted flat
against the wall of the principal building at a position not more than two (2) feet
distance from the main entrance to the residence;
-5-
C. No home occupation shall occupy more than thirty (30) percent of the living area of
the: residence, exclusive of the area of any open porch.or attached garage or
similefspase-net-suited-ef-intendeb40E-Gebizipanby-as-liviffig-guactecs,-Reems-whieh
have been constructed as.an addition to the residence, or any attached porch.or
gar-age-whieh--has-been-becivected-inte-IMN-quafter-sr-shall be considered as living
area.
D. No traffic or parking, including parking of heavy equipment associated with the
home occupation, shall be generated by such home occupation in greater volumes
than would normally be expected in a residential fteigbbefheeddwellinq without
•such home-occupation or business. Any need for -parking generated by the
conduct of such home occupation or business shall be provided on-site and may
not be within the right-of-wav, on or over sidewalks, on any unimproved surface, or
within the required front yard. Heavy equipment as•defined in Article II must be
completely screened from view from the street and adjacent properties with six (6)
feet of opaque screeninq material;
E. No equipment, process or activities shall be•used or conducted for such home
occupation in the dwelling, in an accessory structure or on the residential property
which create noise, vibration, glare, fumes, odors or electrical interference.
.detectable to the normal senses off of the, lot in which such activities are
conducted. No equipment- or process shall be used'in such home occupation.
which creates noise, vibration, glare,- fumes, odors or electrical interference
detectable to the normal senses off the lot, if the occUpation. is conducted in a
single family residence, or outside .the. dwelling unit if.conducted in other.than a
single,family residence. In the case of electrical interference, no equipment or
process shall be used which creates visual or audible interference in any radio or
television receivers off the premises, or causes fluctuations in line voltage off the
premises;
• F. Retail- transactions shall not be conducted in any structure on the residential-
property otherthan the principal dwelling. Incidental business uses and activities
may be conducted in any accessory building or on the property so long as such
uses and activities are completely screened from view from the street or adjacent.
properties:
G. The following shall not be considered home occupations shall not be.permitted:
I. Uses or activities, including retail transactions, which generate traffic Sand
parking greater than those generated by a sinqle-familv residential home without
a home-occupation or home-based business;
2. Uses or activities involving manufacturing or wholesale distribution of goods.and
services.
3. Uses or activities which involve the use, storage or disposal of harmful, noxious,
combustible, flammable or other noxious or hazardous materials; and
4. Uses or activities which change or otherwise result in the change to, the
character and appearance of the dwelling as primarily a residence and which
affect the residential,character of the surrounding neighborhood. Beauty chops,
bar-bershops -swimmin' g--instfuctoF--aft-studie4er--group-instruetion—bublie-dining,
fasility--er--tea-feern -antictue-er--gift-shbps—phetegfaphiestudie—feFtune-telling- •
-6-
outdoor repair, food processing, sale of antiques, retail sales, nursery school or
kindergarten.
F-H. Offices of.convenience (such as attorneys, accounting, professional office or
office-based functions, telehealth, writing/editing, etc.), handyman/general
household services, and tThe giving of group individual instruction-shall-net-be
deemed a home occupation, however the giving of individual instruction, such as
art, photography, music, dance or piano teacher, to one (1) person, such as an art
teacher,or piano. shall be deemed a home occupation, provided, however, that the
provisions of this Section can be met. prohibiting
individualinstruction asa home occupation forthose activities listed in above;
G,I. Fabrication of articles such as are commonly classified under the terms "arts and
handicrafts" and cottage food operations, in accordance with Section 500.80, F.S.,
may be deemed a home occupation, subject to the provisions of this Section.other
terms and conditions of this ; and
-1-17‘.1. A home occupation shall be subject to all applicable City occupational license
and other business taxes under Chapter 205, F.S.
-7-