Saturday, January 9, 2016

My Provincial Presentation - Part Two

This is a photo of Kate Church in her studio in Mahone Bay. This is her blog.

I am posting part two of the presentation that I gave to the Building Advisory Committee, a provincial committee that will be making recommendations to the NS government, so that interpretations of code related to home based businesses are unified and clarified across the province.  I have divided the presentation into a few posts to make it easier to read.  At the end and sometimes in the middle I will give you the 'Coles Notes"  or plain speak version.  If the technical jargon gives you a headache then just skip to the colourful text and you will get the point.

Presentation part two:

The Problem (continued)

As it stands right now, many rural municipalities are admittedly confused as to whether a home occupation is a separate commercial occupancy or whether it is part of the main residential use, so they are leaving the decision in the hands of the building officials.  This leaves the future of small businesses and to some degree the future of our province in the hands of our building officials. That is a very big responsibility and if indeed our building officials have such a strong role to play in community development and the very success or failure of our province then we owe it to these officials to provide them with clarification.

The Lack of Understanding
I would like to talk about this issue of understanding.
The town of Lunenburg put forth a question.  Can a bylaw override the Building code?  In their opinion, if a land use bylaw permitted a building official to forgo the major/minor provisions of the code, then that land use bylaw must be overriding the Building code.
This question comes from a lack of understanding.  A land use bylaw does not and cannot override the building code.  A land use bylaw can and does inform  the Building Code. 
When a land use bylaw exists, but is not taken into account by the building official we have a conflict of zoning.  The following is from a letter to myself from Glen LeLacheur, a retired building official for HRM and currently a code consultant , “If you follow the logic of the building Official that your home based occupancy is a separate use, then the planning/development department have erred in that they have permitted a (commercial) business to be located in a residential area.  This practice is usually not permitted and is not the intent of the rules for home based businesses in Municipal Land Use Bylaws.”
The Plain Speak Information:
Major/minor occupancy provisions of code means there's a section of the building code that explains to building officials that if you have different uses in one building, that you need to separate them with fire walls.  This is meant for things like strip malls where you might have a dry cleaner connected to a restaurant followed by a clothing store.  All these businesses need to be separated by fire walls.  It's about keeping one business safe from a fire in an adjoining business.  Houses are included in this same portion of the building code, but it was never meant to be applied to a house that is used as a residence in a residential zone.  That's why we have land use bylaws that explain that you can have specific small businesses in your home and the house still gets to be a house. 

What Glen Le Lacheur has so perfectly explained is that the intention of allowing Home Based Businesses in Municipal Land Use Bylaws is to allow specific small businesses to  run in their homes.  Period.  If you then go and complicate this very simple thing by saying that these small businesses are actually commercial businesses then you have yourself  a big mess because you are not allowed to have a commercial business in a residential zone.  Just like you are not allowed to build a home in an exclusively commercial zone.  It's just plain nuts.  This is all so amazingly obvious.  It just comes down to common sense.  (which, apparently is not that common) 

Lunenburg has been saying, a land use bylaw can not over ride the building code.  They are totally correct.  It can not.   The land use bylaw informs the code.  That means it says because this is a residential zone and because this business is permitted in a house in a residential zone, as the building inspector you can only require the owner of the business to meet the code that pertains to a house.  If you ask them to meet the code that pertains to a commercial business then you are violating the zoning regulations.  You are asking the owner to construct something that is not permitted.  You are just simply not allowed to build a building that isn't allowed in a specific zone.   You can't build a house in the commercial district, you can't build a machine shop in the residential zone, you can't just choose to erect a shopping mall where ever you feel like it.  The zoning tells you what you are allowed to build.  The code tells you how to build it.  These two things have to work together.  They are not parallel lines that don't meet.  So when the inspector says I need you to turn this room in your house into a commercial occupancy, he is completely uninformed.  It is the job of the town to inform the building official as to what is allowed in any zone.  If they don't, that's a big problem.

Lastly, in response to Lunenburg's repeated, tiresome statement that they tried to help me to make an appeal to the Building Advisory Committee, but I refused their generous offer- This is why I refused.  The town made a big mistake.  They didn't understand how Land Use was connected to the building code. If I had made  an appeal, then that appeal would only be looked at from the perspective of the code and not from the perspective of how the code and land use function together.  It is also officially understood that appeals made to the Building Advisory Committee do not set a precedent.  Clearly, this issue is big enough that it needs to be clarified at a provincial level.

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