At their meeting on November 19, Oak Bluffs selectmen will grapple with the issue of home based businesses that outgrow residential zoning regulations. It’s a problem where the horse — or the backhoe — is already out of the barn.
While the majority of home businesses do not pose problems, landscaping and construction businesses in residential areas are becoming a frequent source of conflict, according to the town’s zoning officer. At issue is what zoning regulations apply when a small business becomes a dominating presence in a residential area, and what is the town’s responsibility for enforcement.
The issue was highlighted at last week’s selectmen’s meeting when Mark Crossland requested a home based business permit for his landscaping business at 459 County Road. This summer, abutter Greg Packish filed a complaint against Mr. Crossland, saying that he was violating several conditions of the home-based business code, and that Mr. Crossland’s use of his property impinges on Mr. Packish’s ability to sell his elderly mother’s property, which he maintains is necessary to pay for her future care. Mr. Crossland told selectmen he has operated his business from his residence for 30 years without any complaints, and he presented the selectmen with letters of support from other abutters and neighbors.
At the meeting, Oak Bluffs building and zoning inspector James Dunn recommended to the selectmen, who have the final say in the matter, that Mr. Crossland be granted a home-based business permit if he addressed the violations he’d seen on a recent site inspection — one of which was keeping trucks and landscaping equipment where neighbors and abutters can see them. Mr. Crossland said that conforming to the regulations would cause great hardship and reiterated that he’d been doing business this way for 30 years. The selectmen asked for more time to study the matter, while several of them acknowledged the long simmering issue of home based businesses needs to be addressed.
“It’s like selectman [Greg] Coogan said at the last meeting: this is the tip of the iceberg,” said James Dunn, zoning administrator for the town of Oak Bluffs, in a conversation with The Times. “This problem is not going away. We receive a lot of complaints about landscape companies and construction companies. They’re quite visible. You have businesses that have been off in the woods for 20 or 30 years, away from everyone, but as the Island becomes more populated and there’s more building and land swapping, this is going to come up more and more. I don’t go around looking for these businesses. But when we get an irate abutter who comes in and wants something done, we’re obligated to respond. Some of these conflicts can be resolved pretty quickly. Others, like the one with Mr. Crossland, are going to take time.”
The premise of the home-based business permit is simply to allow home businesses in a residential zone, as long as the business is mostly invisible to neighbors. The bylaw states “Such business shall not exhibit any exterior indication of its presence or variation from residential appearance.” There are restrictions on the number and size of vehicles on the property and the number of employees the business may have. It also states, “No offensive noise, vibration, smoke, dust, heat or glare shall be produced.” The law only applies to parcels under two acres.
A unique wrinkle in the Oak Bluffs home-based business permitting and exempting procedure is that the final decision rests with the selectmen, not the zoning board of appeals. This change was made at the Oak Bluffs town meeting in April 2006. According to Priscilla Sylvia, who, as a member of the now defunct Community Development Committee (CDC), spent a great deal of time studying the home business issue, the reason for the change was the long history of non-compliance with the rules in Oak Bluffs.
“The CDC spent about a year studying home-based businesses,” Ms. Sylvia said in a telephone call with The Times. “Enforcement was the biggest problem. We had town officials that made decisions based on their own whims. Nobody followed the rules.” After review by the state attorney general, the new home business bylaw giving the selectmen the power to issue, deny, or make exemptions to home-based businesses permits was enacted on July 17, 2006.
But the solution hasn’t solved the problem. In fact, it might be making it worse.
“I don’t remember the specifics of who was behind the change, but I remember thinking this could become a real headache,” said Mr. Coogan, who was a selectman at the time of the April 2006 meeting.
“Everybody’s curious why this isn’t a zoning decision,” said Mr. Dunn. “The selectmen really are out in left field when it comes to dealing with these things. But that’s the way the bylaw was written. I’ve discussed this with Bob [town administrator Robert Whritenour]. We’re going to prepare something for the April  town meeting and hopefully the people will vote to have it changed and give it [final authority] to the ZBA [Zoning Board of Appeals].”
County Road conflict
Now, the issue at hand is resolving the conflict between Mr. Packish and Mr. Crossland on County Road.
“I basically already made my recommendation at the last meeting,” said Mr. Dunn. “The only thing I will do is help the selectmen understand the conditions. There seemed to be a bit of confusion at the meeting.”
Mr. Packish gave The Times a copy of a survey done by Smith and Dowling, which stated in a letter on September 9, 2013, “Your southerly abutter (Crossland) has encroached substantially onto your parcel and more so onto the “No-Cut Zone” open space belonging to Meadow View Farms Homeowners.”
Mr. Dunn said Mr. Crossland has presented him with a contradictory report. “Mark came to me and showed me his report — I think Barbini [Schofield, Barbini & Hoehn] did his — and he says I’m all within these boundaries. I haven’t seen the Packish report, but I’d like to put them together and see who’s right.”
As to how much time Mr. Crossland will have to address these issues — if the selectmen rule against him — Mr. Dunn said that also ultimately rests with the selectmen. “They can say within 10 days. They can say within 30 days. For Mark Crossland, if it were my decision, I’d give him plenty of time. He’s been there 30 years. I would give him six months, maybe a year.”
Although Mr Crossland said that moving his business or addressing the violations would cause him undue hardship, Mr. Dunn did not appear swayed. “I hear all the time ‘I can’t afford the overhead.’ It’s a luxury not to have to pay rent or storage. I’m sure everyone would like to work that way, but they can’t.’”
Ms. Sylvia thinks that contractor’s yard exemption is the key for Mr. Crossland. “He’s not looking for a home business, he’s looking for an accessory use contractor’s yard,” she said, going on to read the exemption: “‘Use of a residential premises as a place for the storage of building materials or equipment is permitted as an accessory use on a parcel larger than two acres or by special permit of the board of selectmen on a smaller parcel.’ The selectmen didn’t read the bylaws. They could easily give him a contractor’s yard permit.”
Common ground for landscapers
“It’s unfortunate, I feel bad because these guys don’t have a lot of places to go,” said Mr. Dunn, about landscapers and contractors who are, in a sense, victims of their own success. “The town owns a fair bit of land. One solution is for the town to appropriate some land for a yard and the contractors could pay the town rent.”
Mr. Dunn said that two years ago, he pitched the idea to county government officials about such a yard by the airport and that they were very receptive. “The county said this is exactly the kind of business they’d like up there because it’s not a retail business where people come and go all the time. It just didn’t work out. It might be worth another look.”
The common yard tactic was used for scallop fishermen in Edgartown, according to Edgartown building inspector Leonard Jason.
“For the most part, it’s worked okay,” he said. He added that landscaping companies also are a frequent source of complaints, but in Edgartown enforcement rests with the zoning board of appeals, not the selectmen.