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HomeMy WebLinkAboutItem 16 Second Reading of Ordinance for LDC Amendment to Chapter 180, Articles II and V - Home Base Businesses House Bill 403 '1101I cic AGENDA ITEM COVER SHEET Meeting Date: November 16, 2021 Item # /a) Reviewed By: Contact Name: Anoch P. Whitfield Department Director: Contact Number: Ext. 1016 City Manager: Subject: Land Development Code Update House Bill 403 Home-Based Businesses Commission District: City-wide Background Summary: The First Reading for this amendment was held on Tuesday, November 2, 2021. 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 (F.S.), 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 since the standards exist in Section 5-17 and keeping a simplified definition for a home occupation. Amendments to Section 5-17 Home Occupations in Article V: • Require that employee/operator/proprietor 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; • Require that heavy equipment shall be completely screened from view from the right-of-way or adjacent properties and that there shall be no display of goods visible from the street; • 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; • Require that home occupation or home-based business be subject to the payment of applicable business taxes under Chapter 205, F.S.; and • Authorize the Development Services Director to revoke a home based business tax receipt and/or pursue remedies as appropriate if business activities are conducted in violaton of this Code. 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") X Public Hearing For Clerk's Dept Use: Ordinance First Reading Consent Agenda X Ordinance Second Reading A Public Hearing Resolution Regular Agenda X 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 () 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 conch- dons 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 Home-based businesses: local government restrictions.— (1) Local governments may not enact or enforce any ordinance, regula- tion, or policy or take any action to license or otherwise regulate a home- based business in violation of this section. (2) A home-based business that operates from a residential property as provided in subsection (3): (a) May operate in an area zoned for residential use. (b) May not be prohibited, restricted, regulated, or licensed in a manner that is different from other businesses in a local government's jurisdiction, except as otherwise provided in this section. (c) Is only subject to applicable business taxes under chapter 205 in the county and municipality in which the home-based business is located. (3) For purposes of this section, a business is considered a home-based business if it operates, in whole or in part, from a residential property and meets the following criteria: (a) The employees of the business who work at the residential dwelling must also reside in the residential dwelling, except that up to a total of two employees or independent contractors who do not reside at the residential dwelling may work at the business. The business may have additional remote employees that do not work at the residential dwelling. 1 CODING: Words strieken are deletions; words underlined are additions. Ch. 2021-202 LAWS OF FLORIDA Ch. 2021-202 (b) Parking related to the business activities of the home-based business complies with local zoning requirements and the need for parking generated by the business may not be greater in volume than would normally be expected at a similar residence where no business 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. Vehicles and trailers used in connection with the business must be parked in legal parking spaces that are not located within the right-of- way, on or over a sidewalk, or on any unimproved surfaces at the residence. Local governments may regulate the parking or storage of heavy equipment at the business which is visible from the street or neighboring property. For purposes of this paragraph, the term"heavy equipment"means commercial, industrial, or agricultural vehicles, equipment, or machinery. (c) As viewed from the street, the use of the residential property is consistent with the uses of the residential areas that surround the property. External modifications made to a residential dwelling to accommodate a home-based business must conform to the residential character and architectural aesthetics of the neighborhood. 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 comply with any relevant local or state regulations with respect to signage and equipment or processes that create noise,vibration heat, smoke, dust, glare fumes,or noxious odors. 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 local, state, and federal regulations with respect to the use, storage, or disposal of any corrosive, combustible, or other hazardous or flammable materials or 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 reasonable appellate attorney fees and costs. (5) The application of this section does not supersede: 2 CODING: Words stricken 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 strielfen 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 2, 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 VIII 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. SHUFFIELD 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. *** j (151) Heavy equipment: Commercial, industrial, or agricultural vehicles, equipment, or machinery. (154) Home Occupation: An occupation or a business operating 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.-eoted entirely in a dwelling unit, provided that: engaged in such occupation; (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} the main entrance to the residence; (d) No home occupation shall be conducted in any accessory building; (e) No home occupation shall occupy more than thirty (30) percent of the floor area 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 Building Department; (f) No traffic shall be generated by such home occupation in greater volumes than would normally be expected—in a residential nefgrhborhood anda —Teed for parking generated by the conduct of such home occupation shall be met off the street and other than in required front yard; -4- (g) No equipment or process shall be used in such home occupation which cr ate 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 dwelling, or outside the dwelling unit if conducted in other than a single family dwelling. In the case of audible interference in any radio or television receivers off the premises, or causes fluctuations in line voltage off the premises; band instrument other than a piano or dance instructor, swimming instructor, art studio for group instruction, public dining facility or tearoom, antique or gift shops, photographic studio, fortune telling, outdoor repair, food processing, sale of antiques, 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 occupation for those activities listed in subparagraph (h) above; (j) Fabrication of articles such as are commonly cla"sified under the terms "arts and handicrafts" may be deemed a home occupation, subject to the other terms and conditions of this definition; (k) A home occupation shall be subject to all applicable City occupational license and other business taxes. ARTICLE V § 5-17. - HOME OCCUPATION. A. Employees, including proprietor/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: B-.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 similar spare not si uteri or intender! for occ upanc„ as li„inn q arters. Rooms which haruve been constructed as an addition to the residep her) porch or 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 infor a residential neighborhooddwelling 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-way, 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 screening 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 proce shall be used in such home occupation :hich creates se vibrat��gl, re f es, odor-s—e-relect�� Gal interference detectable to the normal senses off the lot, if the occupation is conducted in a cingie 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 other than 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. There shall be no display of goods or advertising visible from the street. H_The following shall not be considered home occupations shall not be permitted: 1. Uses or activities, including retail transactions, which generate traffic and parking greater than those generated by a single-family 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. -6- facility or tea room, antique or gift shops, photographic studio, fortune-telling, kindergarten. .l. 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-not-be , such as art, photography, music, dance or piano teacher, to one (1) person, such as an art or piano teacher, shall be deemed a home occupation, provided, however, that the provisions of this Section can be met. these provisions shall apply to prohibiting G.J_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 definition; and K. A home occupation shall be subject to all applicable City occupational license and other business taxes under Chapter 205, F.S. and HI The Development Services Director shall have the authority and responsibility to revoke any home business tax receipt and/or to pursue other remedies as provided in the Land Development Code if any of these provisions are violated. -7- COPY OF ADVERTISEMENT Date Published and Media Name 2B The West Orange Times Thursdavj'ovember 4. 2021 Advertisement or Article FIRST INSERTION CITY OF OCOEE NOTICE OF PUBLIC HEARING LAND DEVELOPMENT CODE(LDC)UPDATE TO AMEND ARTICLES II AND V TO COMPLY WITH HOUSE BILL 408 REGARDING HOME-BASED BUSINESSES • NOTICE IS HEREBY GIVEN,pursuant to Article I,Sections 1-9 and 1-10,of the City of Ocoee Land Development Code that on TUESDAY,NOVEMBER 16,2021, AT 6:15 P.M.or as soon thereafter as practical,the OCOEE CITY COMMISSION will hold a PUBLIC HEARING at the City of Ocoee Commission Chambers lo- cated at 150 North Lakeshore Drive,Ocoee,Florida,to consider amending Articles II(Language and Definitions)and V(Land Use and Density Regulations)of the Land Development Code to comply with new legislative requirements established by House Bill 403 regarding 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 BUSINESS- ES;PROVIDING FOR SEVERABILTTY;PROVIDING FOR CODIFI- CATION;PROVIDING AN EFFECTIVE DATE. Interested parties may appear at the public hearing and be heard with respect to the proposed action.The complete case file may be inspected at the Ocoee Plan- ning Department located at 150 North Lakeshore Drive,Ocoee,Florida,between the hours of 8:00 a.m.and 5:00 p.m.,Monday through Friday,except legal holidays. The Ocoee City Commission may continue the public hearing to other dates and times,as it deems necessary. Any interested party shall be advised of the dates, • times,and places of any continuation of these or continued public hearings shall be ' announced during the hearing,and no further notices regarding these matters will be published.You are advised that any person who desires to appeal any decision made at the public hearings will need a record of the proceedings and for this pur- pose may need to ensure that a verbatim record of the proceedings is made which includes the testimony and evidence upon which the appeal is based. In accordance with the Americans with Disabilities Act,persons needing a special accommodation or an interpreter to participate in this proceeding should contact the City Clerk's Office 48 hours in advance of the meeting at(407)905-3105. November 4,2021 21-04274W