Tuesday, March 22, 2016

Bob Lehman Agrees With My Big Mouth - a Nova Scotia Comedy of Errors- Act....(I lost count)

The Comedy about Home Based Business in Nova Scotia continues.  In this act, The Hat Maker, seeing that her pleas to the Minister of Municipal Affairs to speak with Halifax (the keepers of the knowledge) have been once again thwarted, reaches out to Bob Lehman, one of the foremost experts in Canada on Planning and Land Use.  She has asked him to write a letter to provide clarification as to how Home Occupation Bylaws are meant to work in Canada.  Will the Department of Municipal affairs turn a blind eye, ignore Halifax and the rest of the country and insist that The building code is broken or will they finally see that this whole thing is a tad embarrassing and admit that we are indeed part of a bigger country and we share a few laws?  Stay tuned....

Starring:  Bob Lehman:
Bob is the author of The Zoning Trilogy  a planning resource used in over 1000 municipalities and 6 countries.  It is used by Harvard, MIT,Berkley, The city of Toronto, The City of Vancouver, The NY Dept. of State, NYU, Parks Canada.....
Bob was a founding partner of Metropolitan Knowledge International, Meridian Planning Consultants, the Planning Partnership and the president of Lehman & Associates.  Mr. Lehman has acted as project director for major research and policy studies such as the Employment Lands Study for the Growth Plan Secretariat, the Commission on New Planning for Ontario and the Urban Density Study for the Office for the Greater Toronto Area.  He has been retained by a number of public and private sector organizations to assist in a wide variety of communications-led processes including Growth Management and Local Government Restructuring Studies for the Regions of Halton and Waterloo, Town of Markham, City of Guelph, County of Dufferin, City of Peterborough, and the City of Barrie.  He has acted as a mediator for the office of the Provincial Facilitator and carried our work for the provincial and federal governments.  Twice awarded with the Canadian Institute of Planners Honour Award for Planning Excellence, he has also been recognized with numerous awards from the Ontario Professional Planning Institute.  He is a Fellow of the Canadian Institute of Planners and served as the Chair of the College of Fellows (2009-2014) and Vice-President (2013-2014) of CIP.

Mr. Lehman has appeared before the OMB on about 400 occasions in over 100 municipalities on issues ranging from annexation in Barrie, the SkyDome assessment appeal, monster homes in Forest Hill, ravines in Rosedale and store wars in many places.  An urban planner, author and mediator Bob has established a reputation as one who understands the broader context of the forces shaping our cities, and applies his experience in both land use and transportation planning to provide his clients with a strategic advantage. His full CV can be seen HERE

Supporting roles: Halifax Regional Municipality
HRM completely understands that there is not a damn thing wrong with our Building Code, it's just being applied incorrectly in parts of rural Nova Scotia.  They have offered to help the province and The town of Lunenburg, but their offer has been ignored.

The Department of Muncipal Affairs

The Department of Municipal Affairs is responsible for both planning laws and the building code.  They are currently trying to fix the misapplication of the building code in rural NS by rewriting the building code.  Teaching those that use the building code to use it properly would be quicker and cheaper, but NS has money to spare.

The Town of Lunenburg

The 4 square km.Town of Lunenburg, with a population of 2300 has insisted that home based businesses in exclusively residential neighbourhoods need to have a change of use to commercial occupancy, thus triggering the application of the building code as it relates to commercial occupancies. (I really can't say more about this without risk to my health)

The Hat Maker
The Hat Maker has no energy portfolios to her name and is fairly insignificant to the Province, despite Nova Scotia desperately needing entrepreneurs. Her tireless operatic screaming from rooftops, "It's just a mistake, please just fix the mistake." have been summarily ignored.  

And now for Act ?   A Letter From Mr. Lehman

Ms Anna Shoub

Sent by email only

Re: Home Based Businesses

I am writing in response to your request for a planning opinion related  generally to the rationale for home-based businesses (“HBB”) and specifically to the use of your property as millinery.   As requested I have attached a copy of my CV to this letter.

This letter also provides the planning rationale for HBB and typical elements of zoning controls.  First the response to your specific questions.

Response to Specific Questions

Question One - There has been a question in Nova Scotia whether HBB which are permitted by land use regulations in exclusively residential zones are separate commercial occupancies or whether these small businesses do not change the occupancy classification of the house from residential.  Can you clarify this question?
Question Two - If there is no work done on the portion of a house being used for a HB would there be any reason to trigger a building permit or occupancy permit?

Answer - I know of no jurisdiction that brings the building code into play through the classification of a HBB as a commercial occupancy.   In my
experience the use of part of a dwelling for a HBB that meets zoning requirements does not require a building permit.  To do so would be contrary to the planning rationale for allowing HBB to locate in residential zones, as explained further in my letter.

In my experience the use of a property for an activity permitted by the zoning by-law does not trigger the need for a building or occupancy permit.  Zoning typically creates use permissions that are unconditional, or if not states what the conditions or requirements are in the by-law.

Question Three - when regulating HBB is there any difference whether or not the home occupation receives visitors/customers or if goods are sold on the premises?

Answer – Today most jurisdictions in Canada permit HBB without regulating whether customers come to the premises.  This was not always the case, and older zoning regulations in some communities may still limit visits by customers.  The experience of the last 30-40 years has shown that there is little negative experience in allowing customers. 

Goods sold on the premises are typically limited to those produced on the premises.  In both cases the planning rationale is that the small size of the operation inherently limits the number of customers and the extent of goods sold.  History has shown that these limits work to preclude nuisance.

Question Four - There has been some concern about home businesses possibly competing with businesses in commercial zones.  Has this been considered in the formation of land use regulations?

Answer - HBB are usually limited to a size that is relatively unavailable in the commercial or industrial real estate market.  The size limitation recognizes the role of small businesses and encourages, or effectively requires, small businesses to move out of the home if they grow beyond the permitted size.

Question Five - In your opinion, is it important to support HBB?  If so, why?

Answer – Both planning theory and practice has always supported HBB through policy and zoning permissions.  In recent years, as concerns about incompatibility have diminished, and the technology of communications has changed so drastically, most municipalities in Canada have moved to allow greater permissions for HBB.  It is not uncommon to find a broad range of types of home-based businesses that are encouraged – in particular agri-businesses, food production and tourist businesses in rural and small town contexts. Some forms of HBB are essential to a growing local economy.   Businesses that are successfully established in the home may grow to become something more substantial in the future.

 Question Six - What role do you think HBB play in economic revitalization?

Answer - Everywhere I have worked I have found that a community’s greatest assets are the people who live there, care about and nurture their shared interest in that place.  Someone’s home can be an effective and practical incubator for almost any type of business.  It has been my experience that many home-based businesses move to more standard commercial or industrial locations over time.  Even those that remain in their home are part of the larger community economy that generated wealth and creates jobs through their purchases of services and goods.

Planning Context

Prior to the industrial revolution the home and workplace were the same place.  Families lived together as self-sustaining economic units.  They produced most of what they needed or traded for in the marketplace.  There was no zoning and no building code.

With the industrial revolution came large and highly specialized machinery that could not be home-based.   The mechanics of the production process created smoke, dust, noise and an unhealthy environment in which to live.  This functional separation was followed by a spatial separation. Large areas
with exclusively industrial uses were established close to railways, ports and sources of power.

Municipal planning eventually codified this separation using zoning.  Zoning separated industrial uses from housing areas, to the benefit of both.  The geographic separation was enabled by changes in the technology of movement which allowed much greater choice in locations of work and home – streetcars, bicycles, trains and eventually the automobile.

Most zoning by-laws today continue to have use permissions that reflect the potential impacts of uses that produce adverse impacts as a result of off-site emissions.  However, while zoning originally instituted limits on locations of businesses to ensure compatibility, today there are fewer reasons for exclusive use districts. As the technology of production has changed, the nature of economic activity in most Canadian communities has shifted from manufacturing to service uses.

Employment trends indicate that home-based businesses have emerged as an increasingly significant sector within local economies over the last 40 years.  This change is a result of several demographic and economic trends including:
·      increased numbers of women in the workforce;
·      a decline in the manufacturing and resource based sectors;
·      corporate downsizing and outsourcing;
·      a more educated and mobile workforce;
·      technological innovations; and,
·      an increased value on balancing home and work responsibilities. 

Home-based businesses are recognized by planning policies as a valid response to changing employment needs which can reinforce the economic stability of local economies.

Working from home provides small business owners with a low risk and low cost environment in which to establish and grow a business.  Often, these businesses develop into small enterprises that expand into traditional commercial locations within the community and, in doing so, become large
enough to offer employment opportunities to local residents.  Home-based businesses are a productive element of the local economy that provides both a market and a demand for other local services.

From a planning and land use perspective, home-based businesses make more efficient use of municipal infrastructure.  By working out of the home, there is a demand for utility services during off-peak hours.  As a result, there is a more efficient use of infrastructure that must otherwise still be supplied. 

At the same time, home-based businesses provide flexibility for the individual, by permitting travel at alternate hours and reducing traffic demands when these demands are busiest.  Having more people home during the day means that there are more “eyes on the street” to monitor the neighbourhood and the activities that occur within the community on a daily basis.

If estimates are based on the findings of provincial trade boards are correct, approximately one-third of all registered businesses in Canada are home-based.  The most recent Statistics Canada report on this issue indicates that approximately 18% of the workforce works from their home.  This is made up of both employees who can work from home and those who are self employed.  In total in Canada in 2008 3.2M people worked from their home.

Planning Regulation of Home Based Businesses

It is important to note that the fundamental basis for the separation of industry and housing remains today as the potential incompatibility between the two activities.  The primary goal in regulating HBB is to establish planning provisions that are flexible enough to accommodate entrepreneurial needs and encourage economic development, while at the same time providing a set of performance standards that restrict undesirable activities and protect the public interest.
Given the importance in most communities of protecting the character of residential neighbourhoods, it is necessary to balance the need for planning policies that encourage home-based businesses with a set of regulations that will provide assurances that the quality of life enjoyed in a residential neighbourhood will continue. 

In general terms there are three objectives related to the public interest that justify the regulation of HBB.  These are:

·      to maintain and enhance neighbourhood character;
·      to minimize nuisance; and,
·      to maintain equity among business users.

Each of these is discussed in turn.

Change in Neighbourhood Character – In most communities there is a neighborhood character that is primarily residential in nature.  Permissions for home-based businesses should not compromise the integrity of the residential community in which the business is located.  Many municipalities have relied on regulations dealing with issues such as signage, parking and outdoor storage to minimize any adverse aesthetic impact that may change the appearance or existing character of a neighbourhood.

At the same time our neighbourhoods always evolve and there are many communities in Canada where the proliferation of HBB has created a healthy, interesting and attractive area.  Variety in neighbourhood character reflects the variety of values and circumstances that attract people to a community.  The planning principle should be to provide for diversity rather than conformity.

Neighbourhood Nuisance - The issues that most commonly result in complaints include the use of commercial vehicles early in the morning, the appearance of commercial vehicles parked in driveways, coming and going of cars and trucks during the day, and the affect of the use of power machinery at any time. 
machinery at any time.  

Most home-based business by-laws address the potential for nuisance indirectly by limiting the amount and location of floor space dedicated to the business, parking and the hiring of employees not resident to the host dwelling of the business.  Regulations such as these, while not guaranteeing  compatibility with residential uses, do have the effect of limiting the size and scope of a home-based business that has proven to minimize the potential for nuisance in the overwhelming majority of cases.

Equity - There are now, and will continue to be, businesses conducting similar activities in residential areas that are carried out in commercial and industrial areas.  In these situations, the business in the commercial industrial area is usually paying property taxes at a higher rate.  In order to ensure a degree of equity for such uses within the municipality, regulations are used to limit the size of a home occupation and ultimately ensure that once the business grows beyond a certain point, it is required to move into a commercial or industrial location, which then places it in an equitable situation with its competitors. 

The objective is to foster business opportunities that begin in the home while at the same time ensuring that the business moves to a commercial location within the municipality once it has outgrown its HBB status.

Yours Truly,
Bob Lehman,

LEHMAN & ASSOCIATES                        
Robert Lehman, F.C.I.P., R.P.P       



  1. Lunenburg's Council has stuck its head in the sand on this issue. They are exempt from anything that resembles evidence. Head in sand is an awkward posture when municipal elections approach, but they may have made that calculation and figure not enough of the local electorate will care about it. The province is in the economic doldrums already and the current provincial government's film tax folly has worsened it both for the province generally and Lunenburg in particular. There is no rational justification for the Town's position on home-based businesses, so maybe it's just irrational. Or, just politics: politicians who take strong, but wrongly considered positions seldom if ever change their position based on evidence. They consider it 'flip flopping'. I don't know what the current local councillors do, but when I see evidence that my position is wrong, I change my mind. What do they do? It may take some time, but they eventually lose office because things don't go as well as they could have if they had taken a more sensible approach.

  2. I hope you have sent this letter to the Lunenburg Town Councillors and Mayor and to members of the Live/Work Committee. Nothing more need be said!

  3. ...and requested a reply from said Councillors, Mayor and L/W Committee, by a specific deadline.


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