I Fought the Law

If you are remotely interested in opening a home-based business, you need to get educated on what (if any) zoning regulations are in place.  For example, the State of Virginia allows home-based businesses, and in 2016 I built a single chair salon in my basement. But a business in a residential area has to conform to pre-set “Standards” that a business in a commercial area would not have to.

 

Those “Standards” are the rules a business like mine needs to follow. I live in the Town of Herndon.  They have written their own standards, which supersede the State and County Standards. Meaning: Regardless of what the State of Virginia says about home-based businesses, I must adhere to what my town has written.  This is actually a very good thing because if you find yourself unable to follow a Standard, the appeal process should be relatively simple because everything can be done on the local government level (as opposed to the county or state level). 

Here’s The Problem

There is a Standard in place that I felt was prohibitive to the success of my business:

• “Limit on nonresident employees and visitors . Between the hours of 8:00 a.m. and 9:00 p.m., the number of nonresident employees and visitors shall be limited at any one time to the following:
  • No more than four arrivals of nonresident persons who are employees, clients, customers, or associates of the home-based business shall occur during any 24-hour period.”

 

That means my business is allowed only 4 clients a day, or if I have an employee (which I do) it is reduced to 3 clients a day because my employee counts as one of those “nonresident arrivals”. If you are familiar with the hair industry, you know that three or four clients do not fill up an 8 hour day.

 

Why Does the Town Limit the Number of Clients Per Day?

To understand this, you have to look at it from a different angle. The town doesn’t want to limit how much money I can make, or how many heads of hair I can do. What the town cares about what my business looks like from the outside, ie: How many cars are in my driveway, how long those cars remain parked there, and if my business is in anyway negatively impacting the properties around me:

 

“Town Council intends to preserve the sanctity, tranquility, value, appearance, and ambience of the town’s residential neighborhoods and residential units, and prevent, eliminate, or discontinue home-based businesses that negatively impact residents living near, around, or next to the site of the home-based business.”

Sec. 78-80.5. – Standards for home-businesses as accessory uses.

From the outside, my house should look just like all the other houses in the neighborhood, and a passerby should not even know of the existence of my home business.  Those “four non-resident arrivals” are meant preserve a harmonious neighborhood feel.  But, as my business grew I began asking myself: Is it possible to appeal any of the Standards set on a home-based business? And it turns out, you can. 

 

How to Appeal

I researched it online first and found that I could apply for a “Special Exception” in my town:

 

“Special exception for home-based business . The town council may approve by special exception a business conducted in a residential unit or in an accessory building or both when the use would not be consistent with the standards set forth in this section. The town council may impose conditions to assure that the business shall as nearly as practicable conform to the purposes of this section. Any such business use approved by a special exception shall be deemed a home-based business under this section, which shall apply to such home-based business with necessary changes.”

Sec. 78-80.5.C – Standards for home-businesses as accessory uses.

When I reached out to the zoning administrator to inquire about this, I learned that no other home salon in my town has ever requested a special exception, so there was no precedent, but it sounded like it would be pretty straightforward and simple.  You may be wondering:  What makes some requests simple and other ones complicated? Quite frankly, a big part of the equation is how other residents in your town react to your request. 

 

It becomes increasingly complicated for the town to give you what you want if they feel a lot of resistance from the neighborhood.  That is why zoning processes like this always include Public Hearings.  I had two public hearings, and nobody showed up to air their grievances about how allowing me to see seven clients a day will ruin their life/endanger their children’s wellbeing/reduce their property value/etc.  So, it was simple.

 

The Special Exception Request Process

• Pre-conference
  • This is a closed meeting between the business owner/applicant and the town zoning official(s).  It will determine the viability of your request and give you a general idea of some concerns they may have with what you are asking for.
• Application Fee $300
  • Submitted with your application for a Special Exception, this will cover some costs like signage they will be posting to make the public aware of your request.
• Work Session with the Planning Commission
  • The planning commission (part of the zoning department) will hear your request as told by a zoning official. You do not speak at this, you as the applicant are there to listen and get better prepared for the public hearing.
• Planning Commission Public Hearing
  • This is where members of the community can come to voice their support or their concerns about your request, and this is also when the Planning Commission votes to either pass of reject your special exception application.
• Work Session with the Town Council
  • If your application passes the Planning Commission Public Hearing, it will then go on to the Town Council. Much like before, the town council will hear your request as told by a zoning official. You do not speak at this, you as the applicant are there to listen and get better prepared for the next public hearing.
• Town Council Public Hearing
  • This is the final step.  Again, members of the community can come to voice their support or their concerns about your request, and the Town Council will move to vote on it to either grant or reject your request.

 

It took 4 months to get through the process, but in the end the town granted my request and my business can be prosperous while still conforming to the Standards. 

 

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Frequently Asked Questions

 

• What if you have a HOA?
  • If your house is part of a Home Owner’s Association, it doesn’t matter what the State/County/City/Town standards are, the HOA will supersede those and you will need to seek approval from your HOA first, then begin your process with the local government. 
• Do you need to hire a lawyer?
  • I opted not to. My special exception request was very simple and the zoning officials I was speaking with gave me no reason it wouldn’t pass.  However, I learned something interesting: If even one resident of the town came forward to complain about my request, or my business, it would make it much more difficult for the Planning Commission to approve the application. For example:  If I asked 10 neighbors to write me letters of support, it would not carry as much weight as one complaint would. So, if I had even the whiff of someone who may try to block my request I would have 100% hired a lawyer to fight for what I wanted.  
• How would “they” know if you see more clients than 4 per day?
  • It is highly unlikely the zoning department would ever know that.  But, if someone complained about my business, a zoning official would set up a time to come and meet with me to find out if I am adhering to all of the standards. 
• Can you be shut down for not following the rules? 
  • Simply put: Yes! It’s very important to be well-versed in the zoning requirements your business needs to conform to, otherwise all it takes is one complaint and your whole business (and livelihood) can begin to unravel.  Plus, if you are a business owner, whether you like it or not, you are a role model for the rest of the community.  Be a positive one.