Here is part three of the presentation I made to the Building Advisory Committee, that will be making recommendations to the province to clarify interpretations of code for Home Based Businesses across the province. The Plain speak, "Anna's notes" can be seen in purple at the bottom.
The connection between Land Use and The Building Code
I had a conversation with Kelly Denty, the manager of development approvals in HRM, who explained to me the need for the zoning and application of the code to be complimentary. She explained that the zoning will limit or set a scope for the use of the building and property and the construction rules should not permit a conflict with the zoning.
The Land use rules determine that buildings built upon identified land need to be of a certain type and function. The rules of the code are to specify how to construct a building of any particular function. However, the construction of a building cannot assume a function or form that permits a use that contradicts the zoning. That would create a conflict. If the building official understands that the zoning rule restricts the use of the building then no conflict would exist. The intensification of use is dictated by the zoning regulation. If this concept had been understood in Lunenburg, I could not have been ordered to construct a Mercantile Occupancy in a residential zone.
Confusion arises when a building official is not informed by a municipality about its land use requirements and the official looks only to the building code to determine the occupancy of a Home Based Business.
Building officials need to understand that permitted uses of a home are found in Land Use Bylaws. In this they will understand that the house remains a house and does not become two separate occupancies. The Land Use bylaw is simply permitting these uses within a dwelling.
When building officials apply the major/minor occupancy provisions of the code they are trying to control the overall use of a building by separating the intensity of use. But Land Use already considers the intensification of use by limiting the total allowable area and possible occupants. There is no need to apply further technical criteria to the construction of the building, as the land use rules will ensure the complexity of use is maintained as exclusively residential.
The code uses a similar, but different principal in the definition of “secondary suite”. It says that where the suite of a residential occupancy is of a restricted intensity, the suite is not considered as a second unit.
HRM has clear understanding of how land use informs the Building Code, but this understanding exists as well in much of Canada. I spoke with both the planner and the building official in Salt Spring Island, BC, a beautiful place that has prospered by supporting the many artists that have been drawn there to establish home based businesses. Darryl Jannyk, The building official for Salt Spring Island was kind enough to confirm that a home occupation is treated as part of the main residential use. He explained that if the home occupation is of a higher intensity as in the case of a blacksmith, that additional fire safety would apply. But the occupancy classification still remains residential. This logic aligns beautifully with common sense. No one is advocating for the use of a forge in a living room.
O.K. I touched on the first part in my last post. Basically, What was explained to me by people that know this stuff inside out is that zoning a.k.a. planning, tells you what sort of buildings can be built in any zone. It's the rule book for what is allowed in any area. Only certain types of buildings are permitted. The Building code is a guide book that says how to build any building. It's the rule book for construction. But...you can not build a building that would allow you to do something that is not allowed in a specific zone. You can't construct a store front in a residential zone and say, but I'm going to live here. You can only build a house. You also can't construct a house in a commercial zone and say, but I will use it as a store. That's against the rules. Those rules make sense.
Now here's the clincher and here's where the town of Lunenburg just totally fell off the track. Permitted uses for a home are found in Land Use Bylaws. They are not found in The Code. For example, Land Use bylaws tell us that in a house you can operate a Bed and Breakfast, a home office, a craft workshop where you sell your work or don't, sometimes an antique shop, hair dresser, dog groomer. It's really up to the town to decide what is allowed to go on in a home and still be called a home. So, despite the town's assertions that I am different than a bed and breakfast or a home office, I am not. They just don't get it. I am 100% the same thing. Any rule they apply to me would also apply to all these other permitted uses. But since the town has been completely ignorant of their own Land Use they have said over and over, "but the building inspector says you are Mercantile." and I say, he's looking in the wrong place. You won't find me in the building code. You will find me in a land use bylaw. Do you know how bed and breakfasts with three rooms or less are defined in the building code?.......They aren't. If you insisted that it was up to a building official to find the definition of a B&B in the Code, he would have to come up with Motel. It is only when the town shows the building official their land use requirements and the permitted uses in a home also found in Land Use bylaws that the building official will find the proper definition in the code. You know what I am called and what a B&B is and what all the other Home Based Businesses are that are permitted by Land Use Bylaws when you look for us in the Code?....Dwellings. Homes. Residences. Casa. Maison. That is our definition. That is the code that applies to us. And this code would apply only when you need a bloody building permit. Which I did not because the work we did in my studio did not meet the threshold for a permit. Can you tell my blood pressure is rising?
O.K. I'm back. So, when a building official says, you need to separate your business from the rest of the house with fire walls, etc, here's what's going on. He's trying to control the intensity of two different uses. This would be really important if you were in the commercial district and you had a bakery and people lived upstairs. The thing is, Land Use Bylaws have already done the work for the building official, so he can relax. Land use has already determined that you can only use machinery that would ordinarily be used in a home, that you have to limit the size of the allowable space for the business thus ensuring that you can only have a certain amount of people visiting you. All these restrictions are a good thing. If the business grows out of these restrictions, then how wonderful. It means that they can then go find a space in the commercial zone. Woo Hoo! Growth!
Now, there are some home businesses that a municipality might allow that are of a higher intensity, but usually these businesses would be allowed in a separate shop on the property and additional fire safety would apply, but it's still a residence. Remember, you don't get to build a light industrial building in a residential neighbourhood. That's naughty. But, you definitely might be told by the fire inspector that you need to make it extra safe. This comes back to that common sense thing. In my case, though, I use a sewing needle and a 1940's sewing machine. The dangerous stuff happens on the other side of the wall when I burn toast.
Oh, and that secondary suite deal....That means you can build an 800 sq. foot inlaw suite or a place for your kid to live when they grow up in Nova Scotia and can't find a job and as long as the intensity of use is the same as the house, it is not seen as a second unit.
Sometimes I feel like I am working really hard to prove that the world is round. This is all commonly accepted knowledge. If The province would like to send me a check for all this work, I will take it. They can at least send me a bottle of Iron Works Rum. It takes the edge off.