(A) Purpose and intent. The purpose of a home occupation business registration is to allow a home occupation that is compatible with the neighborhood. The specific intent of a home occupation business registration is to:
(1) Protect residential areas from any negative impacts associated with home occupations.
(2) Allow residents a broad choice in the use of their homes as a place for income and livelihood.
(3) Establish criteria and standards for conducting home occupations within zoning districts in which a residence is permitted.
(B) Conditional use permit. A home occupation business registration is required for a proposed business in any residential structure regardless of the zoning district. However, the business owner may receive a business registration in compliance with Title XI, § 110 for a proposed business in a residential structure in a nonresidential zoning district if the property complies with all other codes and ordinances, e.g., parking, landscaping, drainage, building code requirements. All home occupations shall be required to obtain a home occupation business registration from City Hall. The fee to obtain a home occupation registration shall be $35.
(C) General conditions. A home occupation is permitted in any residential structure or accessory building(s) subject to the following conditions:
(1) Hours of operation must begin no earlier than 7:00 a.m. and end no later than 8:00 p.m.
(2) No more than one person, in addition to the permanent occupants residing on the premises, shall be engaged in a home occupation at the residence.
(3) The home occupation use of a dwelling shall be clearly incidental and subordinate to its residential use. Not more than 25% of the dwelling's gross floor area, not to exceed 500 square feet, shall be used in conducting the home occupation; this square footage limitation shall not apply to a babysitting service or childcare.
(4) Any home occupation or storage in connection with any home occupation shall be completely enclosed within the dwelling or accessory building(s) and limited to services and items which are necessary to conduct the home occupation or have been ordered by a customer, but have not been delivered to the customer. However, no alcoholic beverages for sale shall be stored on the premises.
(5) (a) There shall be no direct sale of products off display shelves or racks. Retail sales shall only be conducted if product orders are placed earlier by telephone/fax, mail, computer or at a sales party.
(b) Sales or service to customers shall be arranged by appointment and scheduled so that not more than one customer vehicle is at the dwelling. This requirement shall include the sale of firearms but does not apply to a sales party or babysitting service.
(6) (a) There shall be no change in the outside appearance of the building or premises, except as described in division (b) below, or other visible evidence of the conduct of a home occupation.
(b) There shall be no outside storage of business-related equipment or supplies except one company-owned vehicle only, which is one ton or smaller and also used for personal transportation purposes, shall be exempt from this condition. Only this vehicle shall be permitted to have signs and advertising in accordance with the vehicle sign provisions within the sign code.
(7) Signs shall not be permitted to advertise a home occupation business or its products, except a sign two square foot in size, non-illuminated, mounted flush against the home.
(8) No equipment or process shall be used in a home occupation that creates noise, vibration, glare, fumes, odor or electrical interference detectable at the property line. No equipment or process shall be used which creates visual or audible interference for any radio or television receivers on and near the premises, which exceeds that normally found in a residential area.
(9) There shall be no toxic (pesticides, herbicides, rodenticides), explosive, highly flammable, combustible, corrosive, radioactive or other restricted materials used or stored on the premises of a home occupation beyond the amount kept at a normal residential dwelling or on hand to operate or maintain equipment and permitted by the Uniform Fire Code as adopted by the city.
(10) No home occupation shall cause an increase in the use of any public utility (water, sewer, electricity, or garbage collection) to double. The combined utility usage of the dwelling and home occupation shall not exceed two times the average usage for the 12 months prior to the home occupation beginning.
(D) Permitted home occupations and conditions. Permitted home occupations shall be classified into categories of similar uses. For the purpose of this section, the use categories shall be professional office, professional service, instructional service, home artisan business, small item repair service and babysitting/childcare home occupations. Non-specified home occupations similar to those listed below may be permitted by the Planning and Zoning Commission.
(1) Professional office. A professional office shall be considered an office for accountants, appraisers, architects, attorneys, contractors, engineers, financial planners, insurance agents, consulting services, real estate and similar office uses. Dentist or medical doctor offices for consulting services only, no testing that would produce medical waste, shall be permitted home occupations as a professional office. No hazardous waste, including medical waste, except ordinary household hazardous and medical waste, shall be generated.
(2) Professional and other services including. A professional service shall be considered computer programming, beautician, barbershop, direct distribution (Amway, Avon, Tupperware, etc.), maid service, mail order, ironing, pet grooming, telephone/fax answering, word processing and similar service use. Beauticians, barbershops, physical therapists, mental health therapists, and massage therapists licensed by the state shall be limited to one customer station per property. All credentialed professionals must provide a copy of their credentials in the application packet with a letter from their credentialing agency noting permissibility to operate out of their home.
(3) Instructional service. An instructional service use shall be considered educational tutoring, music lessons and similar instructional services. A maximum of five students may be at the dwelling at any one time. No music instruments may be amplified. The city's noise ordinance shall be complied with regardless of the number of students at the dwelling.
(4) Home artisan business. A home artisan business shall be considered artist studios, cabinet making, dressmaking, engraving, furniture making, hobby crafts, jewelry making, sewing, tailor, writing studio and similar uses.
(5) Small item repair service. A small item repair service shall be considered bicycle, computer, television, vacuum cleaner, locksmith, watch, tool, shoe, and similar repair services. Auto repair, motorcycle repair, lawn mower repair, large appliance repair, small engine repair and similar large item repair shall not be considered a small item repair service home occupation.
(6) Babysitting service/childcare. A maximum of six children at one time may be at a dwelling for babysitting service. More than four children, but no more than 12 at one time at a dwelling shall be considered childcare which requires compliance with state licensing regulations and this code for a family childcare home (five to six children) or a group childcare home (seven to 12 children). In all cases, a home occupation business registration shall be required.
(7) Provisional services. A person with a home occupation business registration may travel to another person's property to, for example, change oil, fix flat tires, replace belts and hoses, do vehicle detailing on the other person's private vehicles. However, under no circumstances is the person registered under the home occupation business registration authorized to perform these services for other people at his/her residence.
(8) Prohibited services. The following professional service business shall be prohibited as home occupations. These uses include, but are not limited to, adult bookstores/video stores/adult amusement establishments, fortune-telling, health and exercise facilities, massage parlors, palm reading, tattoo and body piercing parlors.
(E) Home occupation parking requirements. The parking requirements for home occupations shall conform to the following conditions:
(1) On-street parking near a home occupation for customers or clients shall be permitted only if the residential appearance of a neighborhood is maintained.
(2) No more than two client or customer vehicles per hour shall frequent a home occupation, except for instructional service, babysitting service or childcare.
(3) Deliveries in connection with and to home occupations shall be limited to:
(a) No more than one delivery per month from a three-axle vehicle.
(b) No delivery vehicles with four or more axles.
(c) On-street parking near a home occupation by delivery vehicles for delivery purposes only.
(4) Vehicles larger than one ton shall not be used, stored, or parked by the business operating as a home occupation at the residence or on the street.
(5) A home occupation shall not cause the elimination of any required off-street parking for the main dwelling.
(F) Home occupation business registration approval. Home occupations shall be approved through the city business registration and licensing process as administered by the City of Elephant Butte as part of the conditional use permitting process.
(1) Application. Application for a home occupation business registration permit shall be submitted to the land use office. The City Clerk or designee shall provide the appropriate forms. The Planning and Zoning Commission shall review the complete application for compliance with applicable city codes and regulations per Title XV, § 155.006(k). The applicant must also provide proof of ownership of the property, or when the applicant is not the property owner, proof of legal right to apply for the home occupation business registration.
(2) Review and scope.
(a) If compliance can be determined through the completed application, the home occupation business registration will be issued automatically by the land use office. If compliance cannot be determined through the completed application or questions arise as part of the application review, a more thorough review and/or inspection will be conducted per Title XV, § 155.007.
(b) Applications for home occupation business registrations that do not meet the constraints of this section shall be denied. The denial determination may be completed at either the time of application, as part of the application review process, or the inspection process.
(3) Renewal. A home occupation business registration shall be renewed each year in the same manner as other city business permits, provided no provisions of this section have been violated. Information or confirmation of adherence to the home occupation requirements may be required as part of the renewal process.
(G) Home occupation business registration revocation. The city may revoke a home occupation business registration for nonconformance with this section or any city codes. The following process shall be followed for the revocation of a home occupation business registration.
(1) Scope. The city may revoke any home occupation business registration for noncompliance with this section's requirements or any city code. Any home occupation business registration revoked or not renewed by the renewal deadline shall become null and void, and such use shall cease. Non-compliance of a home occupation shall be determined by division (G)(3) below.
(2) Home occupation inspections. Home occupation business registration recipients shall allow reasonable inspection of their premises by the city to determine compliance with this section's requirements, any other section of this code or other city ordinance. Inspections will be scheduled to meet the needs of both the business owner and the city official conducting the inspection. If there is evidence of non-compliance with these regulations, an unscheduled inspection may occur. Inspections will be conducted by the City Code Enforcement Officer or designee and the Fire Chief or designee.
(3) Revocation process. The procedure to be followed by the city to revoke a home occupation business registration includes:
(a) A home occupation business registration shall be revoked for the following reasons:
1. A change in home occupation use.
2. A failure to renew the business registration and/or license for the home occupation.
3. A failure to permit the city to inspect the premises of a home occupation.
4. The providing of false or incomplete information on the home occupation business registration application.
5. A failure of the home occupation to meet any of the requirements of this section or any other section of this code or other city ordinance.
(b) The steps followed by the city to revoke a home occupation business registration shall include:
1. After inspection or failure to allow inspection, the city determines a violation of this section has occurred.
2. The city notifies the proprietor of the home occupation of this code violation by certified mail. This notification shall include:
a. A specific description of the violation of this section.
b. The alternatives available to make the home occupation conform to this section.
c. A maximum 30 calendar day time period to abate the violation to this section. Violations impacting health, safety and welfare may be given less than 30 calendar days for abatement.
d. A description of further action the city will take if the violation is not abated.
3. The proprietor of a home occupation shall be notified of the revocation of a home occupation business registration by certified mail if the violation is not abated within the period stated within the initial letter explaining the violations.
4. The city shall take all necessary actions to enforce this section.
(H) Appeal. An appeal concerning any action by the city in regard to this section may be submitted per § 155.007 of the Municipal Code.
(Ord. 191, passed 3-17-2021)