Tuesday, Feb. 16 marked “crossover,” the milestone during the current session of the Virginia General Assembly session in Richmond where bills passed by the House of Delegates move to the Senate for debate and either approval or rejection, and vice versa. While many are just beginning their time in the alternate governing body some fast-tracked bills such as Del.
Even before the 2016 session of the General Assembly ends, Senator Chap Petersen expects to continue efforts in 2017 to abrogate restrictive covenants limited home-based businesses.
In 2016, Senator Petersen introduced Senate Bill 238 that would nullify all restrictive covenants prohibiting home-based businesses. Opponents to the bill raised concerns the bill violated the Virginia Constitution.
And, even though Senator Petersen introduced a more limited substitute bill immediately before Senate Bill 238 was considered by the Senate Committee on General Laws and Technology (establishing home day facilities with five or more children as a residential use), the bill was passed by indefinitely (killed) unanimously (with votes against the bill from Senator Petersen himself and his law partner, Senator Scott Surovell).
The Committee Chair, Senate Ruff, will refer the home day issue to the Virginia Housing Commission for study.
Senate Bill 238 is not Senator Petersen’s first effort to nullify existing restrictive covenants. In 2012 Senator Petersen patroned Senate Bill 627 invalidating restrictive covenants prohibiting solar panels. Senate Bill 627 was ultimately vetoed:
“Senate Bill 627 appears to contradict the general legislative rule that statutory enactments are applied prospectively…In addition to the problem of retroactive application, the legislation potentially violates both the United States Constitution (Article I, Section 10) and the Virginia Constitution (Article I, Section 11) by ‘impairing the obligation of contracts.’ ”
If passed, Senate Bill 238 may have been met with a similar fate. Aside from the constitutionality questions, this quote from Senator Scott Surovell’s twitter page sums it up well, “The General Assembly changing the terms of contracts in vitiation of their disclosure packets is a bad thing[.]”
As Senate Bill 238 makes its way to the Virginia Housing Commission, it is critical to continue the conversation about the appropriateness of home-based businesses in residential communities.
The General Assembly should recognize and support the rights of community associations to regulate commercial activities within their communities. This includes the contractual right (through a recorded declaration) to restrict those commercial activities that are conducted from within individual homes if the commercial nature of the activity is obvious to others in the community and otherwise inconsistent with usual residential living.
Individuals are entitled to reasonably enjoy the use and privacy of their individual homes. Certain types of home-based occupations allow individuals to pursue a livelihood and are not apparent to others outside of the home, including day care facilities that are small enough not to require a license (five or less).
Community association should be allowed the flexibility necessary to determine whether a home-based business is appropriate in a particular community:
i) Is the owner/resident exhibiting signage or any other commercial display?
ii) Are clients regularly visiting the home?
iii) Is the owner/resident using community resources for personal business?
iv) Does the unit draw excessive traffic to its proximity?
v) Is the unit producing irregular noises or odors?
vi) Generally, is the use of the unit inconsistent with typical residential living?
vii) Is the business conducted consistent with local zoning or regulatory requirements?