At the end of this week, Brian and Oksana Downs will begin to be fined $10 a day by the Lansdowne homeowners’ association. Ninety days later, the community leadership could begin the process of having the Downs’ home foreclosed, but Brian Downs said he would probably take his own legal action before that time.
His wife, formerly a Russian teacher in the Ukraine, runs a home day-care operation for Russian children in their home, and, as of Nov. 15, home businesses have been officially declared to be illegal in Lansdowne homes.
For about a year, the question of whether such operations should be allowed in the community has been hotly debated.
The recent notice offered an agreement to households deemed to be in violation of the neighborhood covenants, which would allow them to continue operating until July of 2008.
However, Brian Downs said the agreement required the homeowners to sign off on statements such as "‘I understand I have been operating an illegal business,’ and a bunch of self-incriminating stuff." He said he thought the covenants were being misinterpreted and noted that he and his wife had no intention of signing the agreement or closing his wife’s business. Those who do neither can face penalties as soon as Nov. 30.
"I have the law on my side," said Brian Downs. He said the illegality of home businesses rests on one interpretation of a line of the neighborhood covenants: "No lot shall be used for any business, commercial, manufacturing, mercantile, storage, vending or other nonresidential purpose." He said the sentence was now being read to mean that a home could not be used for any business purpose, commercial purpose and so on, which, he noted would outlaw storage rooms.
If the sentence were interpreted to mean that any business of a nonresidential nature is prohibited, home day care would be legal because, under Loudoun County zoning laws, it is an accepted residential use. "This whole argument is pinned on a comma in a sentence," said Brian Downs.
HOWEVER, Jeff Brown, president of the homeowners’ association’s board of directors, said a resolution created in 2003 to clarify the covenants prohibits residents from providing direct services to clients in their homes.
The community voted in August on whether to allow home day-care operations if they limited the number of children in the house to five and abided by other restrictions or to keep the covenants as they were, which the homeowner’s association said would ban any home business. "We were trying to strike a happy medium," said Brown. He pointed out that nearby Ashburn Farms limits home day-care sites to five children. Residents voted to keep the rules as they were. For a homeowners’ association, he said, "upholding the covenants is number one."
Brown is up for re-election as president shortly after press time.
Downs said that there were many businesses that listed both their home and business addresses in the Lansdowne community, yet only the 12 child-care providers were cited as being in violation of the rule.
"I think the only ones that got notices were the ones that had been identified," said Brown, adding that he thought many home business had closed since the wrangling over the rules began. "As complaints come in, we’ll have to investigate."
He said "significant complaints" about one area of the community with a high density of day-care providers had fueled the drive to take action regarding home businesses. The objections were with regard to traffic on the roads and cars lining the curbs.
Lansdowne developer Hobie Mitchel said the community had been developed with home businesses in mind. "That was the whole idea when we did Lansdowne, was that we would have home businesses," he said. "We’re trying to keep people off the roads." He noted that there is a shortage of day-care centers in the area and that many parents feel more comfortable leaving their children in the home of a caregiver, rather than at a center.
"On a personal level, I believe in home care," said Mitchel, whose mother ran a home day care when he was a child. He said such businesses were sanctioned by "every homeowners’ association in Loudoun County, almost."
Mitchel also said he thought some of the care providers in question had been approved by Lansdowne’s homeowners’ association when he was on its board.
However, in a letter posted on the community’s Web site, former board of directors president Eric Florence wrote that the board had been unable to find any evidence of such approvals in its meeting documents.
BRIAN DOWNS SAID he thought residents’ complaints and the movement among them to shut down the day-care operations was at least partly racially motivated. He noted that he and his wife represented one of only two couples providing day care that were not of an ethnic minority, while at hearings on the matter, nearly every resident who showed up in opposition to home businesses was white.
Brown said residnents’ complaints were the result of businesses that were "directly adversely affecting neighbors."
"This is an emotional topic," he said, adding that no one enjoyed shutting down day-care operations. However, he said, "There’s a group of homeowners, and nobody’s talking about their rights, and that they’ve been dropped into a pseudo-commercial district."
Downs said his wife’s business cares for seven children and is designed to help Russian children assimilate into American culture, while keeping them bilingual and teaching them about Russian traditions. Only Russian is spoken there. The business is licensed by the county and has been in operation for about a year and a half. About half of the children come from outside Lansdowne.
Oksana Downs said the parents of the children she cares for would not be able to find any similar operation in the area. She noted that there is a Russian day care in Washington, D.C., and one in Tysons Corner, "but no one wants to sit in traffic all the way out there in the morning."
Brown said many of the day care providers notified of their violations had already signed the agreement to close business by July.