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County to amend code to address home businesses

JOHNSON COUNTY– In October, the extensions on conditional use permits for Dick Schwab’s Celebration Barn and Mary Ellen Hill’s Gazebo on the Green will end.
The attention garnered by the two rural business ventures in this corner of Johnson County has had people wondering; what’s acceptable practice when carrying out a business in the unincorporated areas of the county?
For most, the answer lies somewhere in the county’s written code. For these two businesses, with their unique services offered in distinctive settings, the code lacks clarity.
The code’s shortcomings, and subsequent county decisions based on them, have caused both businesses to cease operating, at least for now.
Johnson County’s Unified Development Ordinance has a long list of acceptable uses for small businesses in locations zoned C (for commercial), C-AG (for agri-business) or CH (for highway commercial). With permitted uses from bakery shops to bars, appliance stores to undertaking establishments, there is a lot of vocational leeway in a commercial-zoned district.
In agriculture-zoned areas, businesses like nurseries, greenhouses, tree farms, kennels and riding stables are automatically given a pass. Even ventures like airports and golf courses, landfills and wineries are permitted within certain operating parameters.
In areas zoned for residential uses, the code is more restrictive, with anything other than dwelling units requiring conditional use permits. Home businesses qualify for such permits in residential districts, subject to…well, conditions.
A home business is permitted through conditional use if it meets minimum requirements: the owner(s) must live on the property; there can be no more than two outside employees; and, according to R.J. Moore, assistant administrator with the Johnson County Planning and Zoning Department, it must be “invisible,” so people driving by can’t tell it’s a home business.
Moore said the current code regarding home businesses was initially designed to help them begin in an incubation mode, but “then go to industrial (or) commercial zones,” relocating to more appropriate locations as they grow.
But it’s difficult to move a flower garden that took 22 years to establish, or make a 100-ft. diameter, stone-clad barn invisible.
When rural Solon resident Dick Schwab built the Celebration Barn on 245th Street off Sugar Bottom Road as a venue for barn dances, charity events, weddings and receptions, he did so with the permission of the 2006 Johnson County Board of Adjustment, which granted a five-year conditional use permit, stipulating that Schwab hold no more than 12 events per year.
When the permit expired, and Schwab applied this past March for an extension, the Board of Adjustment heard from at least a couple of disgruntled county residents and planning and zoning staff who felt the Celebration Barn’s use as a special events venue was not compliant with the spirit of the county’s ordinance. Schwab was given an extension of his conditional use permit through the end of October 2011.
Hill’s Gazebo on the Green, with its 33 acres of prairie and flower gardens a popular site for wedding and receptions, baby and bridal showers, was dragged into the proceeding by its proximity and similarity to Schwab’s round barn weddings and special events agenda.
In June, Hill’s request for a conditional use permit to continue hosting such affairs in her gardens was granted, also only through October.
According to Hill, her permit was restricted unfairly.
“They (county officials) see the weddings as being special events. I see the weddings as business,” she said.
Hill argued the point to the Johnson County Board of Supervisors in August that under allowable uses in agricultural-zoned areas, Gazebo on the Green already had a permit, as a home business, to allow visitors to the garden and charge a fee for tours.
“I didn’t see weddings as a problem because my permit allows me to bring visitors to the garden. I didn’t make that great distinction between wedding guests not being visitors,” Hill said. “I didn’t intentionally do something to defy the law.”
Without the conditional use permit, though, Hill would have to quit hosting the 10 to 12 weddings she typically has each year at Gazebo on the Green, and without its main income, her business would be forced into closing.
Hill’s fate was sealed last week, when the Board of Adjustment once again voted 4-0, with board member Bill Leefers absent, to deny Hill an extension of her conditional use permit allowing her to schedule weddings next year.
Schwab has since opened a second venue– the Celebration Farm– for weddings and large events on Highway 1 south of Solon, in a CH-zoned area, where commercial activities are allowed. As for his old location, Schwab requested and was given a six-month deferral on any Board of Adjustment action.
At the August 3 work session, planning and zoning staff and the board of supervisors discussed how the county might rewrite the law to accommodate businesses that cater to on-going special events.
“The problem with this type of use is, generally they are taking requests for events further out than the timing on our ordinance,” Moore told the supervisors. “The amendment to the ordinance could be where we would allow a longer timeframe.”
Moore added that the county tries not to rewrite ordinances for individuals, but the Board of Adjustment was seeking more guidance in interpreting the code.
Supervisor Rod Sullivan agreed on both points.
“I think the knee jerk reaction is ‘fix this, it’s a nice thing, make it happen,’” said Sullivan. “But you can’t change the ordinance for one person. The thing that I want to point to is the property. I think our ordinance is doing what it’s supposed to do; letting them incubate a business and then moving to a proper zoning. The thing is, (Mary Ellen) can’t move to a proper zoning. She can’t pick up the gardens and take them anywhere. It seems like she is stuck.”
To address the dilemma, the supervisors’ consensus was to direct Moore and the planning and zoning staff to amend the ordinance to address businesses like Hill’s and Schwab’s in areas zoned for other uses.
Moore suggested discussion begin with the Economic Development Committee.
The committee is comprised of Johnson County supervisors Sally Stutsman and Rod Sullivan; Planning and Zoning Administrator Rick Dvorak; Moore; Johnson County Treasurer Tom Kriz; Budget Coordinator Rich Claiborne; and the board’s Executive Assistant Andy Johnson. An informal group that reviews grant applications and requests for Internal Revenue Bonds, the Economic Development Committee historically meets each fall as the county gears up for its annual budgeting process.
Moore expects the committee to brainstorm ideas to deal with businesses like the two in question. He hopes an amendment will offer a “happy medium between special events and commercial use” but said problems arise when property owners “use it commercially but we’re not taxing it commercially.” The current code was not designed for allowing people to escape commercial property taxes, Moore added. “We have to find way to resolve that for the board that benefits all of us in county.”
County Supervisor Pat Harney said weddings are a part of what needs to be reconsidered, but, “We need to look at it in a holistic manner.” Regarding other venues that regularly hold events that draw crowds, like antique auctions, flea markets, winery or farm events, Harney asked, “What other businesses fit into that category?”
In order to fit all those into a category, Harney added, “We need to be able to come up with something that’s fair to everyone.”
Supervisor Janelle Rettig said she wants to find a way to allow these unique country scenes to remain part of our Johnson County, while still protecting their rural neighbors.
“The recent headlines are Dick and Mary Ellen, but it’s not about Dick and Mary Ellen. We have adopted a strategic plan to encourage diversification of our rural economic development, and allowing people with agricultural land to diversify their income. Part of that will be special events,” Rettig said.
Moore agreed that the issue impacts more than just these two businesses, and said the process of amending the development code could take “some time to resolve,” perhaps up to a year; unfortunately, not quickly enough, said Hill, to save Gazebo on the Green.
“I have to turn down eight couples who were waiting to see if they could have their weddings here in 2012,” Hill said. “It took me 22 years to build these gardens, and it took a little under 22 minutes for them to destroy all I had been trying to do.
“My business has been irreparably harmed.”