What is the legal process for a person to operate a business on land zoned residential in Brown County if that business is not conducted entirely inside that person’s home or outbuilding, like a contractor or landscaper?
The Brown County Area Plan Commission is planning to take another look at its rules for “home occupations” after questions and debate surfaced at the December meeting.
What spurred the discussion was a case that was settled out of court between Jerry Cowan of J.C. Lawncare & Snow Removal and the APC.
Cowan signed a settlement agreement in November to come into compliance with the rules for home occupations by the end of January or pay a $25,000 fine. If he does come into compliance this month, he’ll still have to pay a $10,000 fine.
At the December APC meeting, county resident Sherrie Mitchell questioned APC members and their attorney, David Schilling, about what laws Cowan broke and why they decided to sue him.
Cowan told the meeting audience that he had four trucks and four enclosed trailers on his property on Ridge Acres Drive.
Mitchell’s husband also runs a home-based contractor business, and she and other residents attending the virtual meeting wondered what effect this decision would have on other self-employed people living and working out in the county.
Schilling said that, just like speeding, zoning laws can be interpreted strictly or not, and it would be up to the APC and planning director to decide what to do on a case-by-case basis. The home occupation ordinance has been on the books for years, and rarely has a problem ever been brought up by a neighbor about a contractor parking outside their house, he said.
“You can’t come up with rules that address every situation perfectly and fairly. It’s impossible.” Like speeding, Schilling said, if you’re going too fast, you’re probably going to get caught, but if you’re not sticking out, you’re probably going to be OK.
“… It’s not perfectly fair, but it’s reasonably fair, and it reasonably addresses the concerns that underlie the ordinances, the purposes that they were adopted,” he said, like the desire to keep the residential character in a neighborhood that is mostly zoned residential.
“You think this was appropriate?” Mitchell asked Schilling when he brought up fairness in the APC meeting.
“I certainly do,” he said.
“What law was he breaking?” she asked about Cowan’s case.
Schilling said he’d already answered that question multiple times.
The main question that Mitchell and other commenters kept going back to was how Cowan could violate the “home occupation” rules in the county’s zoning ordinance, as the court complaint said, if his business did not meet the definition of a home occupation.
A business based at a home can operate under “home occupation” rules if it is conducted entirely within a home or an accessory building and does not change the residential character of the neighborhood. There are also other rules in that section of the county zoning ordinance relating to factors such as noise, dust, fire risk, delivery traffic and signage.
In addition, at the time the case against Cowan was filed, the only people permitted to work at a “home occupation” business were people who live at the property. Cowan said at the APC meeting that he had two employees. This past March, after this case was filed, the employee part of the rules was removed and other changes were made when updates to the zoning ordinance were approved.
Cowan doesn’t landscape inside his house or barn, and he can’t store all his equipment inside a building either, Mitchell said — not unlike other contractors throughout the county. She and other commenters repeatedly asked how Cowan can violate the home occupation rules if he doesn’t qualify as a home occupation.
In an interview last week, Schilling explained that the reason the complaint was filed as a violation of home occupation rules was because that’s one of the only ways the ordinance allows a business like Cowan’s to operate where it is. To continue operating, he would need to meet the home occupation rules and also seek special exceptions for employee parking and possibly equipment storage, Schilling said.
“If he operates exclusively out of a building and doesn’t have employee parking, he can do what he wants,” Schilling said last week — “if it’s a type of building that is customarily incidental to a residential use. I mean, I don’t think he could go out there and build a 100- foot by 200-foot pole barn … but, yeah if he had his stuff inside that (existing) building out there, he’d be in good shape.”
Another thing that could be done to bring businesses like this into compliance would be changing the ordinance, Schilling said.
The APC just revised the rules for home occupations about a year ago, but rules for businesses like home-based contractors were not specifically spelled out. In one of the discussions, in December 2019, APC members also had questions about what the rules were for contractor-like businesses because at least one member of the board had heavy equipment stored at home. But because the discussion was about businesses that occur entirely in a building at a home, rules for home-based businesses that didn’t happen entirely inside a building weren’t fully explained then.
Another potential point of confusion is that the current zoning ordinance does not list businesses like “general contractor” or “landscaper” or “snow removal” specifically in its chart of what businesses are allowed in which types of zoning.
Schilling said that, in Indiana, if a zoning ordinance lists specific uses that are allowed, the uses that aren’t listed are not allowed. It could be argued that general contractors or landscapers or snow removal services are general business, he said, but general business use isn’t allowed in R2 zoning in Brown County.
“They’d probably have to have the text of the ordinance changed to allow certain uses within an R2 zone,” Schilling said about the APC’s potential options of bringing businesses like this into compliance.
Part of the home occupation rules — and for getting special exceptions — is for a business owner to show that the business will not alter the character of the neighborhood or “injure” other property or uses in the same vicinity.
The APC talked at length during its home occupation rule meetings in late 2019 about needing to find a balance between allowing businesses to exist tucked away in the hills and allowing neighbors to maintain their peace and views.
Several questions from residents who participated in last month’s APC meeting revolved around whether other contractors had to “walk on eggshells” after what happened to Cowan.
“Is that our intent, to close all these contractors down in this county?” Mitchell asked.
Board President Dave Harden said it was not.
“So what happened here?” Mitchell asked.
“I don’t think we can throw a large blanket out and say, ‘Well, based on this, then everyone who’s doing this will automatically be brought in for enforcement.’ I think it’s going to have to be on a case by case basis as far as going on in the future,” said APC member Randy Jones.
The discussion circled back on itself several times.
“So what is that tipping point … of what’s allowed?” APC member Kara Hammes asked toward the end.
Several board members asked to take another look at the rules and how they could affect businesses such as contractors.
No date was set for that discussion.
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On April 11, 2019, the Brown County Planning Office received a complaint from two neighbors about an apparent business, with employees, operating on a property zoned for residential use and driving equipment in and out of the area.
Brown County Zoning Inspector Chuck Braden investigated and reported seeing five trucks trailers with J.C. Lawncare emblems at the property.
He sent a letter on April 16 to Cowan at 8458 Ridge Acres Drive which said that the county zoning ordinance doesn’t allow commercial businesses in R2 zoning. It asked him to call the planning and zoning office within 10 days “to discuss the matter and plans to move forward.”
In the meantime, three more neighbors complained, according to the zoning investigation report.
On May 20, another letter went out to Cowan. This one asked him to “please cease operation of the business from your residence immediately to avoid further action” or face a possible civil penalty of $10,000 per day.
A fifth neighbor complained twice after that, in June and August, Braden’s investigation report says.
On Oct. 18, 2019, APC attorney David Schilling filed for a permanent injunction and civil penalties against Cowan and his business in Brown Circuit Court, alleging that he was in violation of the “home occupation” rules in the Brown County zoning ordinance.
At that time, a “home occupation” was defined as “an accessory use of a dwelling unit, for monetary or equivalent gain, conducted entirely within said dwelling unit, carried on by one or more persons, all of who reside within the dwelling unit, and, unless specifically authorized hererin, where no persons are employed other than the resident and domestic help.”
A business allowed as “home occupation” also was not permitted to have employees who lived outside the home, and it was not allowed to “change the character thereof or adversely affect the uses permitted in the residential district” or have “outside storage of any kind.”
Cowan hired attorney Wanda Jones and filed a response to the allegations in the complaint in January. Their answer said that the home occupation part of the ordinance was “open for interpretation,” it denied that Cowan was in violation, and asked the court to dismiss the case. At a March conference, a trial was set for June 9, but was then bumped to Nov. 13.
On the date a trial was to happen, the attorneys instead reported that they’d come to an agreement, which Cowan signed.
At last month’s APC meeting, Cowan told the board and others participating in the Zoom session that he’d called the planning and zoning office back in 2018 when he bought the property and asked if what he wanted to do was OK. He did not share a name of a person he’d spoken with.
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