Thursday, September 27, 2007

I was wrong: Ebay legal in Amherst, unless...

This afternoon I got a definitive answer on when you do or do not need permits to buy and sell stuff on Ebay from your house:

The other day you met with Bonnie Weeks and me to discuss whether such a business might be possible under certain circumstances and if so, what would be the permitting requirements for a business of this type. Here is our understanding of the situation:

1. Is it a business?

You have asked if buying and selling used items out of your home wouldbe considered a business. The answer is "yes" if you are doing this buying and selling for profit. (We did not say that buying and selling your own property or "stuff" on EBay would not be a business.)

2. Selling on EBay vs. Garage Sales

You asked how buying and selling on EBay was different from a garage sale. The response was that garage sales usually entail people selling items that they or others have owned and no longer need or use to people who visit the premises to conduct their purchases. Garage sales are not a continuous use and usually only last about 1 or 2 days and occur once or twice a year.

3. Deliveries

You have said that you are planning to buy and sell on EBay and that you will not have customers come to your home. You have told us that you will be using the U.S. Postal Service and other delivery services (such as UPS) for delivery of the items to and from your home and that you will also be going to the Post Office with items that you are selling.

4. Details of the Business

We asked you about the details of your business, i.e. the volume of business, the size and number of items that you might be selling, the traffic that might be generated by the delivery trucks coming and going and other issues that might be bothersome to your neighbors. You were not specific in your answers to these questions. In evaluating how your proposed use will be regulated under zoning, we will need specific estimates for each of these issues.

5. Special Permit for a Home Occupation

Section 5.013 of the Zoning Bylaw authorizes the Zoning Board of Appeals to grant a Special Permit for a Home Occupation, an accessory use to a principle residential use, which generally includes such things as the workroom of an artist, craftsperson, cabinetmaker, etc. While your proposed business does not fall neatly under this category, it appears to be the closest category in the Bylaw to encompass what you are proposing to do. Obtaining a Special Permit for a Home Occupation requires you to submit an application and accompanying documentation describing your business. It requires that your neighbors be notified and it requires the holding of a public hearing. The whole process takes approximately three (3) months, including the appeal period, and costs $150.00, plus $25.00 for an abutters (neighbors) list. The
$150.00 and the $25.00 are one-time fees, assuming that you receive and act on your permit within two years (that is, if you begin to operate your business and continue to operate it). If you do not act on your permit within two years and you still wish to conduct the business you will need to apply for a new (renewal) permit. If your business changes substantially you will also need to apply for a new (modified) permit. This would entail paying the fees again.

6. Office or Studio

Section 5.012 of the Zoning Bylaw allows the use of a portion of a house as an accessory office for a member of a recognized profession, such as doctor, lawyer, etc., without a Special Permit. It does not appear that your proposed business would fall under this category since you do not propose to operate your office as a member of a recognized profession. What you are proposing is closer to a mail-order business.

7. Second Hand Sales License

In addition to any permit that may be required from the Zoning Board of Appeals, there is a permit required by the Town's General By-Laws to operate a business that deals with the selling of used articles. This Second Hand Sales License can be obtained from the Select Board. We understand that the fee for this license is $75.00, and that the permit needs to be renewed annually.

8. Management Plan

If you wish to pursue buying and selling used items on EBay from your home we recommend that you draft a Management Plan for your business and submit it to Bonnie Weeks, Building Commissioner. The Management Plan should include the following information:

* Location of business

* Description of the type of business, including a description of the type, approximate size and number of items to be sold

* Hours of operation

* Number of employees

* Frequency of deliveries to and from the property by UPS or other delivery service (i.e., once a day, once a week, etc.)

* Description of how you propose to handle trash and recycling, including the frequency of pick-up

* Parking required to operate the business, if applicable

* Lighting, including location of lights and hours of operation of lights

* Signage, if applicable

* Landscape maintenance

* Snow removal

* Equipment to be used in the business

* Noise generated by the business

* Storage of materials and equipment associated with the business.

Based on a written Management Plan, including information on all of the categories listed above, Ms. Weeks will determine whether or not you need a Special Permit for a Home Occupation. She is the Zoning Enforcement Officer for the Town of Amherst.

I hope this is helpful. Please contact me or Bonnie Weeks if you need further clarification.

Chris Brestrup
(scroll down if you're curious about the process for properly licensing a home-based Ebay business in Amherst).

So "engage in the business of" means "sell for a profit." So I'm OK, as long as the stuff I sell on Ebay sells for less than the price I paid for it. Good to know. I wonder if I'm allowed to use inflation-adjusted prices (if I sell a Star Wars action figure I bought for $3 in 1977, and sell it for $25 in 2007...)

I feel a little dirty. Just the other day I implied that Larry Kelly was wasting state employee time filing ethics complaints, and here I go and cause who knows HOW much town employee time on this one little question. I didn't mean to; I expected a quick, simple answer like the one I got from Northampton...

2 comments:

Alisa V. Brewer said...

Um, Gavin?

I'm not an attorney, and I don't even imagine I *play* one on TV, but I'm not sure I agree with your understanding of the answer here.

Town said:
You have asked if buying and selling used items out of your home would be considered a business. The answer is "yes" if you are doing this buying and selling for profit.

So you said:
So "engage in the business of" means "sell for a profit." So I'm OK, as long as the stuff I sell on Ebay sells for less than the price I paid for it. Good to know. I wonder if I'm allowed to use inflation-adjusted prices (if I sell a Star Wars action figure I bought for $3 in 1977, and sell it for $25 in 2007...)

I would interpret what the Town said as meaning "if you hope to make a profit, it's a business." I don't think any implied or stated intent to sell things at a loss would prevent you from being considered a business based on the comments you cite. I'm not saying there's a one-to-one correspondence between income taxes and Town bylaws, but I would think that if your *intent* is that you're buying and selling, then the IRS would say you have to report your business income/loss, and the Town would also consider what you're doing a business.

However, I think it is insane for the IRS to imagine that the average EBay seller is reporting any business existence or profit/loss from same to the IRS or state. Somehow, even though it probably is legally required, I just can't imagine they can figure out how to enforce it with their limited resources. It just wouldn't be worth the time they might put into it!

And I have the same feeling about the way EBay selling is being portrayed in the comments you've cited here and in your other posts about this issue in Amherst and Northampton. Just as no one is going to complain if someone has a tag sale once or twice a year, but will complain if they have a weekly tag sale (see North Maple Street in Hadley?!?), unless UPS starts driving to your house many more times a day/week than they were already doing for all the usual reasons UPS delivers, I can't imagine anyone is even going to know you're doing this, and the idea that Amherst is suddenly going to crack down on home-based businesses and their taxable equipment is not a policy I'm aware of, nor, to my knowledge, would the resources be available to enforce such.

I suggest you come to the Select Board public comment portion of a regular meeting (most Mondays starting at 6:30) to ask for clarification on this, or write the Select Board a letter to 4 Boltwood Avenue, Amherst MA 01002, or email SelectBoard@AmherstMa.gov. This is taking a lot of a lot of people's time, sure, but it sounds like we need to all become clear on both legal standards and our local policy. Thanks (really:-) for bringing this to our attention.

LarryK4 said...

The State Ethics Commission handles 1,000 complaints per year (Yikes! Only in Massachusetts!).

So my little old complaint (would that be a .001% increase in their caseloads?) ain't costing squat.