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W. Va. Code § 23-3 defines "home occupation" as an occupation conducted in a dwelling unit and sets out the requisite elements of a "home occupation." Such elements, in summary, are as follows: (a) no person other than members of the family are engaged in the occupation; (b) the home occupation is subordinate to and incidental to home use for residential purposes and uses not more than 25 percent of the floor area; (c) there is no change in the outside appearance of the building or premises; (d) the home occupation is not conducted in any accessory building; (e) no excess traffic or any need for parking is generated by the conduct of the home occupation; and (f) no equipment or process is used creating noise, vibration, glare, fumes, odors and like nuisances.
Mrs. Skeen operated the babysitting service in her home on Marmont Drive in Mercer County from 1981 through fall 1991. The service was properly licensed and supervised by both the State of West Virginia and the Mercer County Economic Opportunity Corporation. When the Skeens's house was purchased and destroyed to construct a new shopping center complex in fall 1991, the Skeens purchased their present residence on Ridgecrest Road in the City of Bluefield. The Ordinances of the City of Bluefield classify Ridgecrest Road as an R-1 residence district. Pursuant to the ordinance, no business may be located or prosecuted in an R-1 residence district without application and permission by city zoning authorities. At the suggestion of an official from the City of Bluefield, the Skeens applied for a permit to have a babysitting service in their new home on 21 November 1991. That application was refused on the same day. The circuit court affirmed the board's decision. The Skeens appealed.
Did the Skeens have a right to the "home occupation" exception in question?
The court held that the Skeens were entitled to the special use exemption because they met all the requirements of the ordinance. Unlike a variance, a special exception or conditional use involved compliance with the applicable ordinance. In other words, whereas a variance related primarily to the allowance of a use of a particular property prohibited in the particular zone, the right to a special exception or conditional use automatically existed if the claimants complied with the standards or requisites set forth in the ordinance. Therefore, the Skeens had a right to the "home occupation" exception in question.