ON CASTLES AND COMMERCE: ZONING LAW AND THE HOME-BUSINESS DILEMMA

As I write this sentence, I am bouncing my six-month-old daughter on my knee, eating one of those awful cardboard-textured cereal bars, and pondering the best way to explain the difference between springing and shifting executory interests to my first-year property class. I might also be breaking the law.1

For most people, for most of human history, work and home have been inextricably intertwined. Practically everyone, from the farmer

2

to the city dweller, worked at home. Houses and apartments were not only dwelling places, but also centers of commercial activity.3 Physicians treated patients and attorneys serviced clients from offices located in their homes

* Assistant Professor of Law, Notre Dame Law School, Notre Dame, Indiana. J.D., Yale Law School, 1995

1. The South Bend Zoning Code permits “customary home occupations” in residential zones, a term that is defined to include “author.” While I assume that an author of law review articles qualifies, I might run into trouble if a zealous zoning enforcement official believed that (1) an assistant professor of law is not a “customary” home occupation

2. See NANCY F. COTT, THE BONDS OF WOMANHOOD: “WOMAN’S SPHERE” IN NEW

ENGLAND, 1780-1835, at 24 (2d ed. 1997) (noting that preindustrial economy consisted of subsistence farms and home industries)

REVOLUTION: AHISTORY OF FEMINIST DESIGNS FOR AMERICAN HOMES, NEIGHBORHOODS, AND

CITIES 12-13 (1981) (noting that the vast majority of people in preindustrial America lived and worked on small subsistence farms).

3. See COTT, supra note 2, at 24 (noting that prior to 1835, American economy was “household production” based)

“[e]ach household was a business”).

makers lived above, below, or behind their shops. Tailors and seamstresses greeted customers in their living rooms and altered clothes in their bedrooms. Blacksmiths and carpenters plied their trades in backyard workshops. Families regularly rented out a room or two to make ends meet. Indeed, the phenomenon of leaving home to go to work did not become the norm until the Industrial Revolution created two “separate spheres” of human existence, the domestic and the commercial.4

For nearly two centuries, there was every reason to believe that this rearrangement in social organization was going to be, for better or for worse, a permanent one. Today, however, other “revolutions”

5 6 7

—social, economic, and, especially, technological— are bringing the two spheres together again for millions of Americans. In 1991, the U.S. Census Bureau found that 20 million people, other than

8

farmers, were working at home at least part time. Four years later, another nationwide survey estimated that the number had climbed to 43.2 million, with 12.7 million people working in home-based businesses and the remainder either telecommuting or bringing

9

work home after hours. Today, the American Association of Home-Based Businesses estimates that the number of people who work in

4. See, e.g., COTT, supra note 2, at 63-74 (describing connection between Industrial Revolution and rise of “separate spheres” ideology)

5. See infra notes 102-22 and accompanying text.

6. See infra notes 123-39 and accompanying text.

7. See infra notes 140-51 and accompanying text.

8. See Linda N. Edwards & Elizabeth Field-Hendrey, Home-based Workers: Data from the 1990 Census of Population, MONTHLY LAB. REV., Nov. 1996, at 26, 27.

9. See Lucie Young, Home Office Guide: Home Is Where the Hard Work Is, N.Y. TIMES, Sept. 29, 1994, at C1 (describing Link Associates survey). Link Associates estimated that the number of people working from home would increase to 57 million by 1997. See id. A more recent study, conducted for the U. S. Small Business Administration, estimated that 9 million of the 17.3 million small businesses that filed a Schedule C, partnership, or S corporation tax return in 1992, were home based, and that the number of home-based businesses had

increased to 10-12 million by 1999. See JOANNE H. PRATT, HOMEBASED BUSINESS: THE HIDDEN ECONOMY ES-i, 4 (1999). This number underestimates the number people who work for such enterprises, both because many home-based businesses hire employees, see id. at 11, and because estimates based upon tax returns do not include businesses that fail to file tax returns. See, e.g., Morton Paglin, The Underground Economy: New Estimates from Household Income and Expenditure Surveys, 103 YALE L.J. 2239, 2241 (1994).

home-based business has increased to more than 24 million.10 Whatever the precise numbers, home businesses are making their mark on the American economy. Phone companies are glutted with

11

requests for new phone lines to service home offices, office furniture companies are unveiling new lines of “home-office

12

furniture,” home builders are making home offices standard in all new homes, and contractors report high demand for home

13

renovations to incorporate home offices. Dozens of how-to books

14

provide guidance on establishing a successful home business, and

10. See American Association of Home-Based Businesses Home Page, at http://www.aahbb.org (last visited Oct. 19, 2000).

11. See Jonathan Marshall, Pac Bell Scrambles To Hire Workers, S.F. CHRON., Jan. 11, 1997, at D1, available in 1997 WL 6689507

12. See, e.g., @Home 2000 is Here, at http://www.office@home.com (last visited Oct. 19, 2000)

13. See, e.g., Cheryl Currid, Whether Corporate or Solo, Home-Office Numbers Rising, HOUS. CHRON., Sept. 17, 1999, at 3, available in 1999 WL 24253904

14. See, e.g., LYNIE ARDEN, THE WORK-AT-HOME SOURCEBOOK (6th ed. 1996)

a number of magazines and Internet websites focus on the concerns

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of home-based entrepreneurs and telecommuters. And, true to

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Alexis de Tocqueville’s observation that Americans are joiners, a number of private home business associations have formed to serve as clearinghouses for resources and information, to obtain discount group insurance rates, to hold conventions, and, importantly, to

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lobby for favorable changes in the law. And with good reason: individuals who want to work at home face significant legal

EDWARDS, THE BEST HOME BUSINESSES FOR THE 21ST CENTURY: THE INSIDE INFORMATION YOU NEED TO KNOW TO SELECT A HOME-BASED BUSINESS THAT’S RIGHT FOR YOU (3d ed. 1999)

15. See, e.g., BIZTALK

MAGAZINE

16. See 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 191 (Phillips Bradley ed.,

1945) (“In no country in the world has the principle of association been more successfully used or applied to a greater multitude of objects than in America.”).

17. See Jeffery D. Zbar, Back Porch Network

obstacles, especially municipal zoning laws that severely restrict the operation of home businesses when they do not prohibit them outright.18

Home businesses present a particularly vexing dilemma for local zoning officials. On the one hand, cultural indicators suggest that many Americans perceive the opportunity to work at home as a good thing, perhaps a necessity in some cases. For example, stories of the millions of people doing so are championed by reporters writing human interest “pulse-of-the-nation” articles in major

19

newspapers and magazines. On the other hand, the “home business” is, at a basic level, an affront to a core, foundational

18. See ROBERT M. ANDERSON & KENNETH H. YOUNG, ANDERSON’S AMERICAN LAW OF

ZONING §§ 13.01-.26 (4th ed. 1996). Zoning rules are not the only legal barriers faced by home businesses. See, e.g., International Ladies’ Garment Workers’ Union v. Dole, 729 F. Supp. 877 (1989) (concerning application of Fair Labor Standards Act to home-based piecework knitters)

19. See, e.g., Kathryn Balint, She ‘s Right at Home and On the Job

principle of American zoning laws—the idea that “home” and “work” are incompatible, that the “home” should be carefully segregated into exclusively residential, commerce-free zones.20 While the issue has attracted little scholarly attention in recent

21

years, all indications suggest that local officials increasingly will find it difficult to avoid confronting the continued viability of zoning proscriptions against working at home. Efforts to enforce zoning rules against home businesses have generated a number of judicial

22

decisions in recent years, and reports of enforcement actions against home businesses in the popular press suggest that these

23

cases may represent only the tip of the iceberg. Furthermore, a

20. See ROBERT FISHMAN, BOURGEOIS UTOPIAS: THE RISE AND FALL OF SUBURBIA 4(1987)

(noting that suburban ideal is based in part on the exclusion of work from the home)

CONSTANCE PERIN, EVERYTHING IN ITS PLACE: SOCIAL ORDER AND LAND USE IN AMERICA 116

(1977) (discussing the importance of the “distinction between social reproduction (the family) and industrial production (the firm)” in American land use law)

21. Apparently, treatment of the issue has, thus far, been concentrated in the popular and trade press. See, e.g., Julie Bennett, Home Bodies, PLANNING, May 1, 1999, at 10.

22. See, e.g., Thomas v. City of Phoenix, 828 P.2d 1210 (Ariz. Ct. App. 1991) (concerning city citation for operating a cake-decorating business from their home)

23. See, e.g., Sarah Cooke, Town Seeks Limits on Rummage Sales, MILWAUKEE J.-SENT., Feb. 21, 1999, at 5, available in 1999 WL 7662213 (noting 14 home business zoning violations reported in Richfield in 1998)

2001] HOME-BUSINESS DILEMMA 1197

number of jurisdictions already have undertaken a review of the zoning laws governing home businesses—often after increasing numbers of home businesses forced the issue upon them.24

In this Article, I argue that local officials should not shy away

25

from tackling the home-business dilemma. There are strong

2, 1997, at H17, available in 1997 WL 6063984 (mentioning zoning restrictions on home business)

24. See, e.g., Liz Atwood, Planners Move to Update Home Business Law

25. Much has been said about zoning law over the years. For a few of the many dozens of books written on the subject, see, for example, RICHARD F. BABCOCK, THE ZONING GAME:

MUNICIPAL PRACTICES AND POLICIES (1966)

Kayden eds., 1989). Indeed, so much has been said about zoning that there is a certain danger in attempting to enter the fray, even to write about an isolated issue such as its regulation of home businesses. One could not possibly begin to give credit to everyone who has contributed insight to the rich scholarly literature on zoning that may be relevant to my narrow topic. See Joel Kosman, Toward an Inclusionary Jurisprudence: A Reconceptualization of Zoning, 43 CATH. U. L. REV. 59, 60 (1993) (“Writing about zoning in the 1990s, then, raises the question of what a person can productively add to the topic.”). With humility, therefore, I include a disclaimer: Although much of what I say in this Article may have implications beyond the narrow issue that I intend to address, it is not my intention to set forth a grand theory of land use regulation, but only to discuss how a tiny part of it might be amended to better accommodate the modern economic and social realities that lead people to work from home.

reasons to reconsider zoning restrictions on working from home: not only are many millions of people already violating zoning laws by

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working from home, but technological advances are making it

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easier for more to do so every day. Furthermore, working at home is often a viable solution to the dilemmas faced by parents

28

struggling to balance work and family, could enable low-income

29

individuals to achieve economic self-sufficiency, and might help alleviate the social and environmental problems caused by suburban sprawl.30

That is not to say that local officials should ignore residents’ legitimate concerns about home businesses’ potential to significantly disrupt their neighbors’ lives. Rather, I argue that current zoning law’s segregation of “work” from “home” is based in part upon the outdated belief that “working” and “residing” are incompatible. As a result, while current rules simply exclude most home businesses from residential zones as a matter of course, I urge local legislatures to consider amending zoning laws to instead target residents’ legitimate concerns about home businesses, namely their potential to generate negative externalities and to undermine neighborhood character. I conclude with a brief discussion of possible ways that local officials might accomplish this difficult task.

I. THE HISTORICAL AND IDEOLOGICAL FOUNDATIONS OF ZONING

RESTRICTIONS ON WORKING FROM HOME

The history of American zoning laws has been amply recounted

31

elsewhere. Thus, I will not repeat others’ descriptions of the economic, ideological, demographic, and political forces that led to the near-universal adoption of that peculiarly American institution

26. See infra notes 181-89 and accompanying text.

27. See infra notes 142-53 and accompanying text.

28. See infra notes 105-24 and accompanying text.

29. See infra notes 125-41 and accompanying text.

30. See infra notes 154-80 and accompanying text.

31. See, e.g., S.J. MAKIELSKI, JR., THE POLITICS OF ZONING: THE NEW YORK EXPERIENCE

(1966) (analyzing zoning in New York City from 1916 to 1960)

32

called zoning. However, in order to understand how zoning laws came to exclude almost all commerce, including home businesses, from residential neighborhoods, it helps to know a bit about one ideological thread that weaves through the fabric of American zoning laws. It is on that thread—the primacy of the home as

33

“haven” from the world—that I focus in the following discussion.

A. “Separate Spheres” of Work and Home

For most of human history, the idea that a “home” could also be a center of productive activity was hardly an aberrant one. On the

34

contrary, “[e]ach household was a business.” The phenomenon of leaving “home” to go to “work” became commonplace only after the

35

Industrial Revolution changed the rhythm of daily life. Historians described how the physical separation of work and home affected societal views of the home (and, importantly, of women within the home), culminating in the long-enduring ideology of “separate

36

spheres.” In 1795, for example, when Martha Moore Ballard wrote “a woman’s work is never done,” she was referring not simply to her

32. See, e.g., PLATT, supra note 25, at 215 (“Although it originated in Germany in the late 19th century, zoning is a quintessentially American institution with the blend of idealism and greed which that implies.”).

33. See supra note 20 and accompanying text.

34. JACKSON, supra note 3, at 47.

35. See, e.g., id.

36. See, e.g., DOLORES HAYDEN, REDESIGNING THE AMERICAN DREAM: THE FUTURE OF

HOUSING, WORK AND FAMILY LIFE 67-74 (1984) (discussing the role of women in the isolated domestic sphere through various feminist strategies)

BUILDING THE DREAM: A SOCIAL HISTORY OF HOUSING IN AMERICA 76-79 (1981) (noting that

“the woman was responsible for perfecting an alternative to the commercial world where her husband and sons had to work” and describing the characteristics of the ideal home)

domestic duties as wife and mother

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neighbors. By the middle of the nineteenth century, however, the long-enduring ideal of a wife like Ballard, whose industrious spirit

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caused biblical poets to call her “blessed,” had given way to hazy Victorian images of the cloistered nurturer who shunned the world

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for domestic pursuits. Work, at least work for pecuniary gain, came to be seen not as a virtue but as a “contagion.”40

Through the transformation from preindustrial to modern economic organization, men left home for work, and commerce and

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industry left with them. Long the productive building block of

42

society, the home became the rarified “domestic sphere,” which

43

stood in sharp contrast to the grueling, cutthroat “world.” The

37. See COTT, supra note 2, at 19.

38.

A good wife who can find? She is far more precious than jewels. . . . She seeks wool and flax, and works with willing hands. . . . She considers a field and buys it

Proverbs 31 (Revised Standard Version).

39. See COTT, supra note 2, at 69-70 (describing the ideal Victorian wife).

40. Sarah Josepha Hale, the editor of Godey ‘s Lady ‘s Book, declared in 1832: “Our men are sufficiently money-making. Let us keep our women and children from the contagion as long as possible.” COTT, supra note 2, at 68

41. For discussion of the separation of men’s work from the private sphere, see, for example, COTT, supra note 2, at 59-62

42. See, e.g., COTT, supra note 2, at 63-74 (describing domesticity)

43. See COTT, supra note 2, at 64 (arguing that “[t]he central convention of domesticity was the contrast between the home and the world”).

2001] HOME-BUSINESS DILEMMA 1201

44

idealized home became commerce-free

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were threatening to destroy.” The home was seen as an oasis, a place where women and children were shielded from the dangers of

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competitive modern economic forces, and, importantly, a place of

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respite for a weary husband returning from work each night. As a New Hampshire minister urged in 1827,

It is at home, where man . . . seeks a refuge from the vexations and embarrassments of business, an enchanting repose from exertion, a relaxation from care by the interchange of affection: where some of his finest sympathies, tastes, and moral and religious feelings are formed and nourished

B. The Rise of Commerce-Free Zones

Not surprisingly, especially given the legitimate health and safety threats posed by rapidly industrializing cities, these sentiments led inevitably to the desire to put miles between the two

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spheres: how could the home serve as a true sanctuary unless it was physically set apart from the realities of the urban work-a-day

44. See HOUGHTON, supra note 36, at 341-47 (describing how the Victorian home was idealized as a respite from the business world). But cf. COTT, supra note 2, at 70 (noting that many Victorian-Era women brought commerce into the home by engaging in the “given-out” system of production).

45. HOUGHTON, supra note 36, at 343.

46. See COTT, supra note 2, at 67-70.

47. See WRIGHT, supra note 36, at 109 (“The widely held expectation that the impersonal market was grueling and cutthroat, harshly competitive and draining, posed the home as compensation. ‘[T]his stirring career away from home,’ wrote one contented husband, ‘renders home to him so necessary as a place of repose, where he may take off his armor, relax his strained attention, and surrender himself to perfect rest.'”).

48. COTT, supra note 2, at 64 (alteration in original)

49. See JACKSON, supra note 3, at 69-72

world? Kenneth Jackson’s insightful history of the American suburbs chronicles the ties between the development—and especially the promotion—of early suburbs and the separate

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spheres ideology. He notes, for example, that while earlier peripheral cities self-consciously patterned themselves after their compact urban neighbors, late-nineteenth-century “suburbs” featured detached, single-family homes set in a semi-pastoral setting.51

The single-family dwelling came to embody the domestic sphere, and the isolated suburban household became the American ideal. Boosters touted this model of development as the perfect family environment—a true sanctuary purged of the chaos, filth, and

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degradation associated with the industrial cities. As Jackson observes, “[t]he suburban ideal offered the promise of . . . retreat from commercialism and industry,” and every suburban home— from the Victorian mansion to the working man’s cottage—”seemed immune to the dislocations of an industrializing society and cut off from the toil and turbulence of emerging immigrant ghettoes.”53 Thus, one advertisement for a new suburban development featured “Lady Justice” promising an industrious working man a home on an inexpensive payment plan: pointing to a tidy suburban cottage, she proclaimed, “Where All Was Darkness, Now Is Light.”54

Thanks to abundant land, increasingly efficient transportation, and the development of cheaper construction methods (especially

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the “balloon frame” house), dreams of the “ruralizing of all our urban population” shared by suburban visionaries such as Fredrick Jackson Olmstead and Andrew Jackson Downing had begun to be

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realized by the early twentieth century. As suburban houses

50. See JACKSON, supra note 3, at 45-72

51. See JACKSON, supra note 3, at 46, 56-57.

52. See WRIGHT, supra note 36, at 107-09.

53. JACKSON, supra note 3, at 71-72

54. WRIGHT, supra note 36, at 97.

55. See JACKSON, supra note 3, at 122-37 (discussing the development of middle-class suburbs).

56. FISHMAN, supra note 20, at 129 (quoting Olmstead on desire to “ruralize” all of the

2001] HOME-BUSINESS DILEMMA 1203

became more affordable, more “common men” could afford to live in them. The suburban “ideal” was becoming a reality for larger numbers of American families by the time that zoning exploded onto the American scene in the 1920s.57

The reformers responsible for the remarkable legislative

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phenomenon of American zoning were undoubtedly driven by a complex set of motives, ranging from a Progressive-Era faith in

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“scientific government” to revulsion at the condition of immigrant workers’ tenements (combined perhaps with an ugly dose of

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nativism). As others have observed, however, evidence of their desire to legislate the suburban ideal by shielding the talismanic “home” from the degradations and disruptions of commerce and

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industry is unmistakably present, both in their own writings and,

American population)

57. See JACKSON, supra note 3, at 136 (“For the first time in the history of the world, middle-class families in the late nineteenth century could reasonably expect to buy a detached home on an accessible lot in a safe and sanitary environment.”)

58. See TOLL, supra note 31, at 187 (noting that within one year of New York enacting the first zoning law in 1916, 20 cities had followed suit

59. See PLATT, supra note 25, at 228-33

60. See, e.g., FISHMAN, supra note 20, at 4 (discussing the influx of immigrants and “cheap tenements and boarding houses” that led to the development of suburbia)

61. See WRIGHT, supra note 36, at 194 (discussing the “exclusionary” motivations of zoning reformers)

especially, in judicial decisions considering constitutional challenges to the first zoning ordinances.62

In the decade before the United States Supreme Court upheld

63

comprehensive zoning laws, dozens of state courts had occasion to

64

pass upon their constitutionality. While the state courts divided

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sharply, opinions approving the laws frequently contained echoes of the Victorian-Era “separate spheres” ideology. The California Supreme Court held, for example, that

residential zoning may, in the last analysis, be rested upon the protection of the civic and social values of the American home. . . . The home and its intrinsic influences are the very foundation of good citizenship, and any factor contributing to the establishment of homes and the fostering of home life doubtless tends to the enhancement, not only of community life, but of the life of the nation as a whole.66

The physical separation of work and home, through the segregation of homes into “exclusively residential” districts, was therefore a desirable development in the law, because, in the words of the New York Court of Appeals, “[t]he primary purpose of such a district is safe, healthful, and comfortable family life rather than the development of commercial instincts and the pursuit of pecuniary

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profits.” The Wisconsin Supreme Court held that “[t]he home seeker shuns a section of a city devoted to industrialism . . . . A common and natural instinct directs him to a section far removed

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from commerce, trade, and industry.” And the Maryland Supreme

(promoting exclusively residential zones, especially single-family neighborhoods)

Whitten, The Zoning of Residence Sections, 10 PROC. NAT’L CONFERENCE ON CITY PLAN. 34

(1918) (observing that “[r]esidence districts must . . . be protected against invasion by trade and industry” and proposing methods of zoning).

62. See Lees, supra note 61, at 413-18, 428-33.

63. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

64. See id. at 369-70 (collecting cases in appellant’s argument).

65. See id.

66. Miller v. Board of Pub. Works, 234 P. 381, 386-87 (Cal. 1925)

67. Wulfsohn v. Burden, 150 N.E. 120, 123 (N.Y. 1925).

68. State ex rel. Carter v. Harper, 196 N.W. 451, 455 (Wis. 1923).

2001] HOME-BUSINESS DILEMMA 1205

Court observed: “[H]owever it may be analyzed, there is a widespread dislike of having business uses invade residential districts . . . . The fact is that the conceptions of the people as to the comfortable and desirable mode of living have been changing.”69

II. ZONING RESTRICTIONS ON “HOME OCCUPATIONS” IN A

NUTSHELL

The triumph of the ideology reflected in these opinions endures to this day in the zoning laws that are a universal fact of life in the

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United States. Although land use is perhaps the quintessential

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local responsibility, most zoning codes have, since their inception, organized land uses in a consistent way, predetermining the use of all private land by dividing a community into “zones” where

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different land uses are permitted. As the literature on exclusionary zoning vividly illustrates, the system of regulation that results establishes a hierarchy of uses, at the pinnacle of which sit residential zones, especially those reserved for single-family

69. Goldman v. Crowther, 128 A. 50, 62 (Md. 1925).

70. See PERIN, supra note 20, at 116-18 (discussing the exclusion of commercial uses from suburban neighborhoods by zoning laws)

A quiet place where yards are wide, people few, and motor vehicles restricted

are legitimate guidelines in a land-use project addressed to family needs. . . .

The police power is not confined to elimination of filth, stench, and unhealthy

places. It is ample to lay out zones where family values, youth values, and the

blessings of quiet seclusion and clean air make the area a sanctuary for people.

71. See, e.g., Richard Briffault, Our Localism: Part I—The Structure of Local Government Law, 90 COLUM. L. REV. 1, 3 (1990) (“[E]ducation and zoning are the principal operations of local governments. . . . Land use control is the most important local regulatory power.”)

72. See PLATT, supra note 25, at 235-40 (describing typical zoning schemes)

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homes. Zoning’s highest purpose is, in a sense, to “purify” these zones by prohibiting “incompatible” uses of property within them.74

If zoning law aims to purge residential zones of incompatible commercial activities, what are local officials to do about the unavoidable fact that many people will, at least from time to time, work at home? This is an old question. Drafters of early zoning codes had to contend with the fact that home occupations remained quite prevalent well into the twentieth century. As a result, most early codes did not prohibit working from home altogether, but rather permitted either “accessory uses” of residential property,

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“customary” home occupations, or both. Many modern codes still

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contain these types of provisions. Whether a given use of a home is permitted under these exceptions to municipal zoning codes has been the subject of a great deal of litigation, with courts tending to

73. See, e.g., Richard Briffault, Our Localism: Part I—Localism and Legal Theory, 90 COLUM. L. REV. 346, 369-70 (1990) (discussing exclusion of commercial enterprises as integral to suburban land use policy)

74. See, e.g., PLATT, supra note 25, at 235-36 (describing primacy of excluding incompatible uses from residential zones)

75. See ANDERSON & YOUNG, supra note 18, § 13.01.

76. See id. § 13.02

(1996) (“Accessory use shall mean a use incidental, related, appropriate, and clearly subordinate to the main use.”), available at http://www.redondo.org/planning/z1

1.htm#sec402

accessory use as “one which is clearly incidental to or customarily found in connection with, and . . . on the same lot as the principle use of the premises”), available at http:// www.ci.corpus-christi.tx.us/services/planning/zoneindex.html

2001] HOME-BUSINESS DILEMMA 1207

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construe accessory use provisions quite narrowly. The resolution of these disputes often turns on seemingly silly distinctions. For example, the New Hampshire Supreme Court held that a roofing contractor could not use his residence as a business headquarters where he maintained business records and conducted business by

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mail and telephone. The Massachusetts Supreme Judicial Court, however, held that a homeowner could use the sunroom in his house to make telephone calls and pay bills related to his masonry business, in part because he did not maintain a filing cabinet in the

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sunroom.

Perhaps in an effort to reduce the uncertainty caused by these vague restrictions, most municipalities have enacted zoning restrictions that more specifically address home-based businesses.80 Some cities simply prohibit all home occupations in residential

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zones. Zoning codes in jurisdictions that do not prohibit all home occupations often list permitted occupations, prohibited

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occupations, or both. Many allow “professionals” to ply their trade

77. See generally H.C. Lind, Annotation, What Constitutes a “Home Occupation” or the Like Within Accessory Use Provision of Zoning Regulation, 73 A.L.R.2d 439 (1960)

78. See Perron v. City of Concord, 150 A.2d 403 (N.H. 1959).

79. See Wellesley v. Brossi, 164 N.E.2d 883, 886 (Mass. 1960).

80. See generally ANDERSON & YOUNG, supra note 18 (summarizing municipal zoning regulations for home businesses).

81. See, e.g., MESA, ARIZ., ZONING ORDINANCE §§ 11-4-4, 11-5-5 (2000) (prohibiting all “commercial” activities in residential zones), available at http:// www.ci. mesa.az.us/planning/ zonord.htm.

82. See ANDERSON & YOUNG, supra note 18, § 13.02

in residential areas, at least if the home office is not their primary

84

one.

In keeping with the idea that “commerce” does not belong in the home, codes that permit professionals to work in their homes usually prohibit nonprofessionals from doing so. Some codes accomplish this expressly, by designating a usually noninclusive list of prohibited

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occupations. Other codes simply prohibit all commercial home

86

occupations. Most often, however, a zoning ordinance that permits professional home offices simply remains silent about other income

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producing activities in residential zones. In such cases, courts, applying the expressio unius, exclusio alterius principle, generally find

83. There has been a significant amount of litigation concerning what occupations can properly be considered professional. See ANDERSON & YOUNG, supra note 18, § 13.03.

84. See id.

85. See supra note 84 and accompanying text. The emphasis on the professional nature of permitted home-based occupations is evident in many ordinances. See, e.g., JEFFERSON PARISH, LA., ORDINANCE § 40-3 (permitting “secondary professional office of a lawyer, engineer, architect, journalist, accountant or other professional person, and salesman, real estate agent, insurance agent and mail order service”)

86. See MESA, ARIZ., ZONING ORDINANCE § 11-1-6 (2000) (defining “commercial use” as “[t]he buying, selling, leasing, or storage of real or personal property, or the furnishing of services for compensation”), available at http://www.ci.mesa.az.us/planning/zonord.htm.

87. See ANDERSON & YOUNG, supra note 18, § 13.03

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that the approval of professional occupations implies the disapproval, and hence exclusion, of other types of home businesses.88 Virtually all cities that permit some home-based enterprises,

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however, restrict their size and scope. For example, zoning codes commonly restrict the physical configuration of a home business by placing limitations on the space that a resident may devote to a home

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business—usually 25% of the floor space or less, requiring that the home business be conducted solely within the confines of the home and

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not in any exterior structure, including attached garages, and prohibiting a resident from physically altering her home to

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accommodate the business. In addition, almost all codes strictly limit who can work in home businesses. Most require the proprietor of the

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business to reside in the dwelling, and prohibit her from hiring any

94

employees that do not also reside there. Zoning codes also regulate the internal practices of home businesses by precluding client or

95

customer visits, thus, prohibiting all commercial transactions and/or

88. See ANDERSON & YOUNG, supra note 18, § 13.03.

89. See generally id. §§ 13.21-.26

90. See ANDERSON & YOUNG, supra note 18, § 13.26

29.01(a)(9)(a)(7) (2000) (25% of floor space), available at http://www.topeka.org/departmt/ codebook/apendixc.htm

91. See DURHAM COUNTY, N.C., ZONING ORDINANCE § 7.18(3)

ZONING ORDINANCE § 3-1.36 (2000), available at http://www.ci.corpus-christi.tx.us/services/ planning/zoneindex.html

92. See TOPEKA, KAN., CODE § 48-29.01(a)(9)(a)(3)

93. See ANDERSON & YOUNG, supra note 18, § 13.21.

94. See PARADISE VALLEY, ARIZ., ZONING ORDINANCE § 201 (2000), available at http://www.ci.paradise-valley.az.us/Townhall/ZoningOrd.htm

COUNTY, N.C., ZONING ORDINANCE § 7.18(1)

16-2-2(7)(b)

CORPUS CHRISTI, TEX., ZONING CODE § 3-1.36.

95. Compliance with these provisions would preclude the proprietor from taking advantage of the federal income tax deduction available for home offices. See 26 U.S.C. §

96

sales of any product. Many codes also make it illegal for a home

97

business to manufacture a product, to maintain any inventory on the

98

premises, or to use any “equipment” that is not customarily used for

99

household purposes. Finally, proprietors often are precluded from advertising their business through product displays and/or signs visible from the street.100

III. WHY THE HOME-BUSINESS DILEMMA MATTERS

The casual observer of this situation might think, “So what?” After all, the fact that zoning laws prohibit residents from doing something in their homes rarely leads to rallying cries for legislative reform. Most zoning rules likely are perceived to be “shorthand of the unstated rules

101

governing what are widely regarded as correct social categories.” For

280A(c)(1)(B) (1994 & Supp. IV 1998) (mandating that the tax deduction is available only if one’s home is one’s principle place of business or is used for “meeting or dealing” with “patients, clients, or customers”).

96. See, e.g., TOPEKA, KAN., CODE § 48-29.01(a)(9)(a)(4)

supra note 18, § 13.24.

97. See ALBUQUERQUE, N.M., ZONING CODE § 14-16-2-2(A)(7)(c)

(prohibiting welding shops, machine shops, and cabinetmaking).

98. See JEFFERSON PARISH, LA., ORDINANCE § 40-3

(“Stock-in-trade, inventory, or other merchandise shall be allowed to be kept only in the interior space of the dwelling.”).

99. See ANDERSON & YOUNG, supra note 18, § 13.23

100. See ANDERSON & YOUNG, supra note 18, § 13.25

index.html

21A.36.030(H)(15) (allowing “one nonilluminated nameplate . . . mounted flat against the building”)

101. PERIN, supra note 20, at 3.

2001] HOME-BUSINESS DILEMMA 1211

example, zoning laws probably prohibit residents in most neighborhoods from raising pigs or chickens, and the pages of modern law reviews are hardly filled with pleas for regulatory relief by swine and fowl lovers. Yet whatever the value of the majority of zoning classifications—and they are perennially under attack—there are strong reasons to believe that zoning law’s separation of the categories of “home” and “work” has outlived, or is rapidly outliving, its usefulness. In the section that follows, therefore, I set forth five arguments why the regulatory status quo should concern lawmakers.

A. The Elusive Quest for “Balance”

The first reason that lawmakers should reconsider current zoning restrictions is that for many Americans, especially women with children, working at home offers the best (and in some cases the only) way to balance the competing demands of work and family. Between 1960 and 1996, the percentage of married women who had children under age six and who also worked outside the home rose from 20.2%

102

to 62.3%. The stress placed upon parents and children in this situation increasingly has led to calls for more family-friendly policies

103

at work, including part-time, flex-time, and job sharing. While these

102. See U.S. DEP’T OF HEALTH AND HUMAN SERVS., 1998 GREENBOOK 661.

103. See, e.g., Anne L. Alstott, Tax Policy and Feminism: Competing Goals and Institutional Choices, 96 COLUM. L. REV. 2001, 2024 (1996) (discussing women’s need for flexible work schedules to accommodate demands of child rearing)

policies offer some day-to-day relief, they have serious economic

104

consequences. Economist June O’Neill, among others, has long argued that the persistence of a “wage gap” between men and women is at least partially attributable to the fact that women with children work fewer hours than men, often choose to move to lower paying jobs that offer more flexible schedules, are less willing to make extreme personal sacrifices for their employers, and are more likely to demand that their employers accommodate their personal lives, including the

105

demands of child rearing. O’Neill’s hypothesis finds support in the fact that while American women as a whole continue to earn approximately 75% of what men do, women ages twenty-seven to thirty-three who have never had a child earn upwards of 98% as much

106

as men with similar education and work experiences. Recent surveys of women suggest that they will continue to make career choices that reinforce this trend.107

As Flex Time Catches On, Workers and Employers Fight to Control It, CHI. DAILY HERALD, Mar. 26, 2000, at 4, available in 2000 WL 17102566 (noting that the number of full-time workers working “flex time” grew from 12.4% in 1985 to 28% in 1997)

104. See McCaffery, supra note 103, at 674 (noting that “women have been given a stark choice: act like men have traditionally acted in the work force, or get out”)

105. See June Ellenoff O’Neill, The Cause and Significance of the Declining Gender Gap

in Pay, in NEITHER VICTIM NOR ENEMY: WOMEN’S FREEDOM NETWORK LOOKS AT GENDER IN

AMERICA 1, 1-6 (Rita J. Simon ed., 1995)

106. See DIANA FURCHTGOTT-ROTH & CHRISTINE STOLBA, WOMEN’S FIGURES: AN ILLUSTRATED GUIDE TO THE ECONOMIC PROGRESS OF WOMEN IN AMERICA 14 (1996)

(discussing several O’Neill studies).

107. Two years ago, for example, Liz Nickles and Laurie Ashcraft released the third segment of their three-decade survey of women’s attitudes towards work and family. When they surveyed women in the late 1980s, Nickles and Ashcraft found that women were “gung ho,” working full time and complaining about the level of stress and lack of support. By the late 1990s, the women surveyed had rejected this model altogether. Indeed, only 23% of working women surveyed in the late-90s said that a career was more important than being

2001] HOME-BUSINESS DILEMMA 1213

Growing numbers of women have come to view working for themselves as a reasonable and perhaps more lucrative alternative108 to the “mommy track” jobs that many critics argue relegate women to

109

second-class status in the workplace. Women are starting businesses

110

in record numbers. Indeed, women-owned businesses are one of the

111

fastest growing segments of the American economy, totaling an estimated 8.5 million businesses contributing an estimated $3.1 trillion

112

in revenue to the economy in 1997. Many of these entrepreneurs choose to work from home: 67% of the nation’s full-time home-based

a wife and mother. Instead, Nickles and Ashcraft found that both working and nonworking women expressed the same priorities. They considered home and family more important as a career and valued quantity more than “quality” time with their kids. See Patricia Edmonds, What Women Want Now: They’re More Focused on Home—And Feel Less Guilty about It—Than Anytime in the Past 20 Years. Now the Word is Balance, USA WEEKEND, Oct. 25, 1998, at 4, available in 1998 WL 8302877

108. See Marie C. Franklin, Women Turning to Entrepreneurial Options

109. See Martha Chamallas, Structuralist and Cultural Domination Theories Meet Title VI: Some Contemporary Influences, 92 MICH. L. REV. 2370, 2374-75 (1994) (discussing argument that “mommy track” jobs cause “tokenism and segregation”). See generally

DOROTHY P. MOORE & E. HOLLY BUTTNER, WOMEN ENTREPRENEURS MOVING BEYOND THE

GLASS CEILING (1997)

110. See Murphy, supra note 108, at 32 (noting that “women now own almost one out of every three sole proprietorships in the country”). See generally U.S. SMALL BUS. ADMIN., WOMEN IN BUSINESS (1998) [hereinafter WOMEN IN BUSINESS] (discussing the significant

growth in the number of women-owned businesses).

111. See WOMEN IN BUSINESS, supra note 110, at 2 (finding that number of women-owned businesses increased 43% between 1987 to 1992, compared with a 26% increase in all businesses

112. See id. at 1.

workers are women, and over 60% of all women-owned businesses

114

were operated at home when first established. This arrangement,

115

while certainly not stress-free, does allow parents to spend more

116

time with their children. It also reverses the two-century-old trend

113. See Edwards & Field-Hendrey, supra note 8, at 27

114. See WOMEN IN BUSINESS, supra note 110, at 2

115. See, e.g., Mary L. Carsky et al., An Integrated Model of Homebased Work Effects on Family Quality of Life, 23 J. BUS. RES. 37 (1991) (reviewing studies that suggest that working from home has mixed effects on family quality of life)

116. See, e.g., Edwards & Field-Hendrey, supra note 8, at 26-27 (attributing rise in number of home-based workers in part to “the continued rise in women’s labor force participation and in two-career families”)

2001] HOME-BUSINESS DILEMMA 1215

of removing productive activity from the home—an arrangement that some feminists have long decried as placing women at a relative disadvantage socially and economically.117

Dozens of books and Internet websites target these “mom

118

preneurs,” promising to provide tips about identifying a lucrative market, starting a home business or locating a telecommuting job, and

119

avoiding “home business scams.” However, many of the businesses recommended as “ideal” home occupations, as well as businesses in those industries dominated by women-owned firms and businesses that women have in fact chosen to start from home, are illegal in most of America. Data from the U.S. Small Business Administration suggests that most women-owned home-based firms produce goods and services and are concentrated in industries such as construction,

120

manufacturing, and wholesale/retail trade—all the types of “commercial” enterprises banned under most zoning laws.121 Furthermore, the National Foundation for Home Business Owners estimates that women-owned home-based businesses employ 14

(1988) (highlighting that children whose parents worked from home had “meaningful involvement” in their parent’s daily lives and gained “early understanding of . . . work’s tools and processes”).

117. See generally HAYDEN, supra note 2 (discussing early feminist efforts to secure pay for domestic work).

118. The “mompreneur” was the focus of Ellen H. Parlapiano and Patricia Cobe’s 1996 book, Mompreneurs: A Mother ‘s Practical Step-by-Step Guide to Work-at-Home Success. See

PARLAPIANO & COBE, supra note 14.

119. See JENNIFER BASYE, 101 BEST EXTRA-INCOME OPPORTUNITIES FOR WOMEN (1997)

ROBERTS, supra note 14

120. See PRATT, supra note 9, at 38

121. See supra notes 85-100 and accompanying text.

million people, arrangements that frequently run afoul of zoning codes.122

B. Bootstraps Entrepreneurs Need a Place to Earn a Living

The second reason that restrictions on home businesses have become problematic is that working from home may enable people with limited education and job-related skills to achieve economic self-sufficiency. In 1996, Congress eliminated the sixty-year-old federal welfare entitlement and replaced it with the new program, Temporary Assistance for Needy Families, which requires all recipients to secure employment within two years and bars recipients from receiving

123

benefits for longer than five years. While early results of the welfare reform effort have exceeded expectations, many individuals struggle to

124

make the transition from welfare to work. An economic downturn resulting in new rounds of layoffs could wreak havoc on individuals who only recently exited welfare rolls and may be barred forever from

125

returning. The low-skilled individuals who face welfare time limits and work requirements are among the most vulnerable in the modern economy. Not only will they likely lose under the “last-hired/first-fired principle,” but also over the past forty years the “blue collar” jobs that traditionally provided high wages for workers lacking formal education and training increasingly have been supplanted by jobs in serviceoriented industries, where employers tend to require specialized skills and higher levels of education.126

122. See Yoest, supra note 107.

123. See Personal Responsibility and Work Opportunity Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 42 U.S.C. and 8 U.S.C. (Supp. IV 1998)).

124. See, e.g., SARAH BRAUNER & PAMELA LOPREST, THE URBAN INSTITUTE, WHERE ARE THEY NOW? WHAT STATES’ STUDIES OF PEOPLE WHO LEFT WELFARE TELL US 8-9 (1999)

(suggesting that the available data undermines a “sunny” picture of welfare reform)

ON URBAN & METRO. POLICY, BROOKINGS INST., THE STATE OF WELFARE CASELOADS IN

AMERICA’S CITIES: 1999, at 1 (1999) (finding that some urban areas have experienced increases in welfare caseloads), available at http://www.brook.edu./es.urban/caseload.pdf.

125. Indeed, there is anecdotal evidence that previous rounds of layoffs and corporate downsizing fueled the home business craze. See, e.g., Executive Update, INVESTOR’S BUS. DAILY, May 2, 1996, at A4 (suggesting that “running a home-based business may be a good career move for downsized managers, engineers and salespeople”).

126. See generally Schill, supra note 73, at 799-808 (discussing “spatial mismatch” hypothesis as cause of concentration of poverty in the United States). Over the past 30 years, many major cities experienced sizable employment losses in industries with low mean

2001] HOME-BUSINESS DILEMMA 1217

Home businesses might offer a partial buffer against these economic realities, leading some state legislatures to consider the option of increasing opportunities to work at home as an economic development

127

tool. The fact that welfare recipients lack the skills demanded by large, service-oriented employers does not necessarily mean that they lack marketable skills altogether. The success of “microenterprise” programs, which provide small loans that enable low-income individuals to become entrepreneurs, suggests that many welfare recipients have skills that enable them to become entrepreneurs, thereby achieving self-sufficiency without depending upon an employer.128

Consider two examples. First, there is a dire need among the single

129

mothers who make up the bulk of welfare recipients for quality,

130

loving childcare. Obviously, many thousands of welfare recipients

levels of employee education and gains in industries that employed better-educated workers. “[D]uring the 1980s New York City lost 135,000 j obs in industries in which workers averaged less than twelve years of education, and gained almost 300,000 jobs in industries in which workers had thirteen or more years of education.” WILLIAM JULIUS WILSON, WHEN WORK DISAPPEARS: THE WORLD OF NEW URBAN POOR 32 (1996). Philadelphia, Boston, and

Baltimore experienced a fate similar to that of New York, losing jobs in “low-education” industries while gaining positions for college-educated employees. See id.

127. See, e.g., H.B. 3798, 81st Reg. Sess. (Minn. 2000) (proposing telecommunication centers for rural and distressed areas).

128. See generally LISA J. SERVON, BOOTSTRAP CAPITAL: MICROENTERPRISES AND THE

AMERICAN POOR (1999) (discussing microenterprise development programs)

129. Of the 4.3 million adults receiving AFDC in 1995, 3.8 million, or 88%, were women. Ninety percent of those women were single mothers of dependent children. See BUREAU OF

TRANSP. STATISTICS, U.S. DEP’T OF TRANSP. WELFARE REFORM AND ACCESS TO JOBS IN BOSTON

2 (1999), available at http://www.bts.gov/programs/transtu/welfare.pdf.

130. For discussions of the relationship between working mothers and child care

availability, see generally U.S. GEN. ACCOUNTING OFFICE, WELFARE REFORM: IMPLICATIONS OF INCREASED WORK PARTICIPATION FOR CHILD CARE (1997), available at

http://www.gao.gov/AIndexFY97/abstracts/he97075.htm

WELFARE TO WORK: CHILD CAREASSISTANCE LIMITED

(1995)

have the skills to provide this important service

The success of women like Linda Fisher hinges on their having a place to work. Unfortunately for many of the low-skilled individuals struggling to exit welfare rolls, that place is home or nowhere. The “Muffin Lady” was lucky, but local fire departments can hardly rescue all low-income mothers in need. For many, the inability to work at home dashes all hopes of becoming an entrepreneur. Leasing commercial space costs money—a significant sum of money—and most recent welfare recipients lack the resources (or the credit) to secure it. In contrast, however, the vast majority of home-based businesses

133

require less than $5000 in start-up capital, and most entrepreneurs, especially women and minorities, do not rely upon bank loans to get

134

these businesses off the ground. Furthermore, working from home enables former welfare recipients to balance work and family responsibilities, a prospect that, if daunting to any parent, can be

131. See, e.g., Carol Sanger, Separating from Children, 96 COLUM. L. REV. 375, 507-08 (1996) (noting that “[s]ome states have tried to increase the availability of child care through zoning laws. Thus localities have exempted family day care (day care in the provider’s own home) from business exclusions otherwise applicable in residential neighborhoods.”)

132. See Katherine Shaver, For ‘The Muffin Lady,’ Some Home-Baked Troubles, WASH. POST, Feb. 13, 1997, at A1. Fisher’s initial misfortune turned out to be a blessing in disguise, leading to appearances on national television, a cookbook, and offers to franchise her business. See Carole Sugarman, Muffin Makeovers: Recipes and Reflections From Linda Fisher, Rebuilding Her Life One Batch at a Time, WASH. POST, Feb. 17, 1998, at E1.

133. See, e.g., Barbara Pressley Noble, Home Office: The Right Attitude, and the Right Stuff, N.Y. TIMES, May 28, 1995, at C11 (discussing how entrepreneurs can fully equip their home offices for less than $5000).

134. See PRATT, supra note 9, at 84-86 (finding that 5 % of women and minority-owned firms, compared to 50 % of firms owned by white men, sought outside loans for start-up capital).

2001] HOME-BUSINESS DILEMMA 1219

overwhelming for a young mother struggling to achieve economic selfsufficiency.135

It is not surprising, therefore, that a majority of the enterprises funded by microenterprise programs are small, home-based

136

businesses. Nor is it surprising that many of them apparently are forced to operate in the underground economy. Zoning codes are skewed in favor of high-end, white-collar occupations, limiting the privilege of working at home to “professionals” such as doctors,

137

lawyers, and accountants. While these prohibitions likely outlaw

138

most home businesses, the hostility to “commercial” enterprises significantly disadvantages lower-skilled workers, by precluding the operation of businesses that may be the most attractive to them

C. The Ban on Dot-coms

The third reason that local officials should confront the home business dilemma is that zoning codes drafted before the mainframe are ill-equipped to tackle the dot-com. The “technological revolution” in general, and the Internet in particular, has dramatically in

140

creased opportunities to work from home. Telecommuting is rapidly

135. See supra notes 129-32 and accompanying text.

136. See SERVON, supra note 128, at 42.

137. See supra notes 80-88 and accompanying text.

138. See BUREAU OF LABOR STAT., LABOR FORCE STATISTICS FROM THE CURRENT POPULATION SURVEY WORK AT HOME IN 1997 tbl. 1 (1998) [hereinafter WORK AT HOME IN

1997], available at http://www.bls.gov/news.release/homey.nws.htm (finding that only 18% of self-employed home-based workers engaged in “professional specialty” work).

139. See PRATT, supra note 9, at 38, 86-88 (finding women-owned firms concentrated in agricultural services, construction, manufacturing, and wholesale and retail trade

140. See WORK AT HOME IN 1997, supra note 138 (finding that approximately 60% of homebased workers used computers)

information technology and e-commerce make it easier to start a home business), available

becoming a mainstream employment arrangement, with estimates of the number of people engaged in some form of “distance work”

141

generally ranging around 20 million. Resources for those engaged in or seeking to engage in this employment arrangement abound,142

143

especially on the Internet, suggesting that millions more may take

144

advantage of the option in the near future. Indeed, at least one

at http://www.sba.gov/advo/stats/e_comm.pdf

141. See, e.g., WORK AT HOME IN 1997, supra note 138 (estimating that more than 21 million persons did some work at home as part of their primary job in 1997)

PRATT, INTERNATIONAL TELEWORK ASSOCIATION & COUNCIL, 1999 TELEWORK AMERICA NATIONAL TELEWORK SURVEY: COST/BENEFITS OF TELEWORKING TO MANAGE WORK/LIFE

RESPONSIBILITIES 1 (1999) [hereinafter PRATT, TELEWORK AMERICA] (finding that “19.6

million teleworkers typically work 9 days per month at home with an average of 3 hours per week during normal business hours”), available at http://www.telecommute.org/twa/ twa_research_exec_ summary.doc.

142. See, e.g., SANDY ANDERSON,THEWORK AT HOMEBALANCINGACT:THEPROFESSIONAL RESOURCE GUIDE FOR MANAGING YOURSELF, YOUR WORK, AND YOUR FAMILY AT HOME (1998)

143. See, e.g., Fern Telecommuting, at http://www.ferntelecommuting.com (last visited Oct. 31, 2000)

144. See WORK AT HOME IN 1997, supra note 138 (noting that the number of wage and salary workers doing paid work at home grew dramatically between 1991 and 1997).

2001] HOME-BUSINESS DILEMMA 1221

telecommunications expert predicts that the number of “teleworkers” will increase to 100 million by 2015.145

While zoning laws certainly may impede some of these tele

146

commuting arrangements, their brunt is felt most directly by individuals who operate home-based businesses. And, many of the

147

“hottest” home-business opportunities are technology-based. The U.S. Small Business Administration estimates that 18% of all households with personal computers use them as part of a home-based business and that, by 2003, over 70% of all home businesses will be

148

conducted online. Despite the fact that most “virtual” businesses

149

pose little threat to their neighbors, many popular technology-based

145. See Edward Cornish et al., The Opportunity Century, FUTURIST, Jan.-Feb. 2000, at 2 (citing study by Joseph Pelton).

146. Whether telecommuters are covered by zoning restrictions on “home occupations” is an open question

147. See SMALL BUSINESSES VENTURE ONLINE, supra note 140, at 4

to” book market. See, e.g., RICK BENZEL, HEALTH SERVICE BUSINESSES ON YOUR HOME-BASED PC (1993)

WITH YOUR PC! (1994).

148. See SMALL BUSINESSES VENTURE ONLINE, supra note 140, at 4.

149. Many virtual businesses do not generate the externalities that disrupt a neighborhood. See infra note 193-95 and accompanying text.

home businesses are swept under zoning laws’ broad prohibitions. Not only is it difficult to make the case that computer-based businesses are “customary” home occupations, the preference in many zoning codes for professional rather than commercial occupations works to the detriment of “techie” companies. Consider, for example, a few of the businesses suggested in a popular book, 121 Internet Businesses You Can Start from Home: auto loan broker, bankruptcy consultant, online genealogist, e-mail reminder service, online advertising agency, online dating service, collection agency, legal transcription service, billing service, payroll preparation service, used computer broker, copywriter,

150

desktop publisher, and (my favorite) virtual cemetery. Few of these companies would qualify as “professional” occupations, and many would require the would-be entrepreneur to produce or sell goods or services.151

D. Humanizing the Way We Live: New Urbanism and the Costs of Sprawl

The fourth reason to reevaluate the restrictions on home businesses is that encouraging people to work from home may help alleviate some of the negative consequences of American zoning laws. A growing number of scholars, planners, and architects have come to conclude that zoning laws mistakenly enshrine the “home” in a hermetically sealed unreality bubble. Building upon works of Jane Jacobs, especially

152

The Death and Life of Great American Cities, these “new urbanist” critics contend that we humans should be permitted to live amidst the rough and tumble of the “real world”—and, indeed, that we would

153

benefit from the experience of it. The new urbanists contend that life

150. See GIELGUN, supra note 149, at 93-288.

151. See, e.g., SMALL BUSINESSES VENTURE ONLINE, supra note 142, at 6 (finding that 65%

of small businesses used the Internet to sell goods and services)

152. JANE JACOBS, THE DEATH AND LIFE OF GREAT AMERICAN CITIES (1961).

153. See, e.g., Frug, supra note 70, at 1089-94 (describing the “new urbanism”). James Howard Kunstler sums up the “new urbanists” philosophy as follows:

[Zoning law’s] chief characteristics are the strict separation of human activities . . . . After all, it’s called zoning because the basic idea is that every activity demands a separate zone of its very own. . . .

2001] HOME-BUSINESS DILEMMA 1223

in the exclusively residential zone is stultifying, and that it is stultifying precisely because it is exclusively residential. They champion “mixed-use” neighborhoods, where homes are situated

154

within walking distance of stores, restaurants, and parks. Seizing upon Jacobs’s insight that American land use planning goes to far,155 they argue that, while it is one thing to segregate industrial smokestacks and meat-packing plants from residential neighborhoods, it is quite another to “zone” out the corner store, which enhances, rather than corrupts, a neighborhood. It gives older children a place to buy candy and ice cream on lazy summer afternoons and harried moms and dads a place to pick up a gallon of milk without having to drive miles to the nearest supermarket. But most of all, the corner store gives people a place to go, on foot, within their own neighborhood, thus ensuring that people will be outside, mingling amongst each other rather than sitting in their family rooms watching endless hours of

156

television. As Philip Langdon observes:

The tavern, the cafe, the coffee shop, the neighborhood store—these and other potential gathering places have been zoned out of residential areas. Few are the neighborhood places where people can go in hopes of striking up a conversation . . . . As informal gathering places have been banished, many opportunities for making friendships and pursuing common interests have disappeared.157

It soon becomes obvious that the model of the human habitat dictated by zoning is a formless, soulless, centerless, demoralizing mess. It bankrupts families and townships. It causes mental illness. It disables whole classes of decent, normal citizens. It ruins the air we breathe. It corrupts and deadens our spirits.

JAMES HOWARD KUNTSLER, HOME FROM NOWHERE 110-12 (1996).

154. The term “mixed-use”—a favorite of the new urbanists—is also attributable to Jacobs, who wrote of it as one of the conditions for vibrant city life. See JACOBS, supra note 152, at 152-77, 222-40.

155. Unlike Jacobs, however, who expressed profound skepticism about the entire enterprise of land use “planning,” the new urbanists would replace the current set of rules with their own. See, e.g., KUNSTLER, supra note 153, at 135 (arguing in favor of authoritarian controls on development because “[a]uthorities can exist without being despotic”)

156. For a discussion of the benefits of a more centralized environment, see KUNSTLER, supra note 153, at 52-57.

157. PHILIP LANGDON, A BETTER PLACE TO LIVE: RESHAPING THE AMERICAN SUBURB 15

The new urbanists’ “ideal” is the pre-World War II small American

158

city: a place with a “traditional” main street and city center. Their nightmare is the post-1950s suburb: the world of strip malls and megastores, cul-de-sacs, and drive-thru restaurants. It is therefore not surprising that, while the new urbanists advocate “mixing” residences and commercial enterprises, they do not spend much time championing home businesses. Home businesses will not transform “monoculture tract developments of cookie-cutter bunkers on half-acre lots in

159

far-flung suburbs” into the tree-lined streets of quaint shops and rowhouses that characterize places like Old Town Alexandria,

160

Virginia. To the contrary, amending zoning laws to authorize home businesses will simply permit people to work in the suburban tract homes that the new urbanists deplore—there may be more dot-coms, but not more corner stores.161

While legal reforms that permit home business might not affect the radical overhaul of American land use patterns advocated by the new urbanists, they could help cure some of the related ills that these critics identify. Consider, for example, the new urbanists’ complaint about the social isolation of modern suburbia. The legal segregation of commercial and residential uses of property contributes to this isolation not only by depriving residents of places to gather within their neighborhoods, but also by virtually guaranteeing that they rarely will be in their neighborhoods. Especially because of the integration of women into the workforce, the physical separation of work and home means that many suburban neighborhoods are empty during the day. Moms and dads go to work

162

parents to fulfill their family responsibilities, but it also would guarantee that they were home during the day to meet one another.

(1994).

158. See ANDRES DUANY ET AL., SUBURBAN NATION: THE RISE OF SPRAWL AND THE DECLINE

OF THE AMERICAN DREAM 10-11 (2000) (praising prewar patterns of development).

159. JAMES HOWARD KUNSTLER, THE GEOGRAPHY OF NOWHERE: THE RISE AND DECLINE OF AMERICA’S MAN-MADE LANDSCAPE 147 (1998).

160. See DUANY ET AL., supra note 158, at 15-18 (praising Old Town Alexandria).

161. Cf. Jeffery S. Hampton, County to Reduce Commercial Zoning

Designed to Slow Strip Development on Tourist Roads, VIRGINIAN-PILOT (Norfolk, Va.), Jan.

8, 1999, at B1 (discussing proposal to permit home businesses to reduce demand for strip

mall development), available in LEXIS, News Library, Virginian-Pilot File.

162. See supra notes 102-12 and accompanying text.

Similarly, working at home could help alleviate the negative externalities of another ugly stepchild of American zoning laws,

163

namely, suburban sprawl. The serious quality-of-life consequences caused by the current pattern of suburban development extend beyond

164

the loss of “place” decried by new urbanists. For example, although Americans consistently indicate (both in public opinion surveys and by their residential choices) that they are willing to travel long distances

165

to work in order to live in suburban communities, the long commutes associated with the current sprawling patterns of development

166

contribute to suburbanites’ social isolation. Residents who must

163. See COUNCIL ON ENVTL. QUALITY, THE COSTS OF SPRAWL: DETAILED COST ANALYSIS

26-27 (1974) (noting the concern that exclusionary zoning contributes to sprawl)

164. See Burchell, supra note 163, at 169.

165. See, e.g., ANTHONY DOWNS, STUCK IN TRAFFIC: COPING WITH PEAK-HOUR TRAFFIC

CONGESTION 16-17 (1992)

166. See LANGDON, supra note 157, at 14 (discussing connection between long commutes

and the loss of community)

of many modern cities and asserting that reducing traffic would improve community development and sustainability)

spend hours each week commuting to work arrive home from work too late and too exhausted to spend time with their families, let alone to socialize with neighbors.167

Furthermore, in sprawling suburban neighborhoods, the low density of residential developments virtually eliminates the possibility of mass

168 169

transit commuting. As a result, most suburbanites drive to work. And, they usually drive alone, which means—in this era of dual-career couples—that many families have two cars on the road at the same

170

times each day. The result is the terrible traffic congestion that suburban residents consistently rank as their “most serious

171

environmental problem.” They are correct, and for more than one reason. Traffic congestion not only eats up residents’ precious free

172 173

time and increases their level of stress, it is also the major culprit when cities find themselves unable to attain federal Clean Air Act standards.174

environmental impacts of America’s reliance on cars in the suburbs).

167. See Frug, supra note 70, at 1096 (discussing negative impact of sprawl on women)

168. See DOWNS, supra note 165, at 19

169. See Oren, supra note 166, at 169-70.

170. See FEDERAL HIGHWAYADMIN.,U.S.DEP’T OF TRANSP.,SUMMARY OF TRAVELTRENDS: 1990 NATIONWIDE PERSONAL TRANSPORTATION SURVEY 21 (1992) (noting that the average

vehicle occupancy for trips to work dropped from 1.3 passengers in 1977 to 1.1 in 1990), available at http://www-cta.ornl.gov/npts/1990/doc/travelTrends.pdf

JENNIFER R. YOUNG, U.S. DEP’T OF TRANSP., SUMMARY OF TRAVELTRENDS: 1995 NATIONWIDE

PERSONAL TRANSPORTATION SURVEY 40 (1999) (indicating that 79.6% of workers reported

that they “usually drive alone”), available at http://www-cta.ornl.gov/npts/1995/Doc /publications.html.

171. DOWNS, supra note 165, at 1.

172. One well-known economist noted that in 1995, “Americans lost more than eight billion hours to traffic delays, at a total cost of more than $80 billion—mainly in the form of wasted time . . . .” Paul R. Krugman, The Tax-Reform Obsession, N.Y. TIMES, Apr. 7, 1996, § 6 (Magazine), at 36, 37. Empirical evidence suggests that the probability of working from home increases with the costs of commuting. See Edwards & Fields-Hendrey, supra note 8, at 33 (noting that workers living in rural areas “where commuting times to onsite work are likely to be longer than in urban areas” are more likely to work from home).

173. See generally Daniel Stokols et al., Traffic Congestion, Type A Behavior, and Stress, 63 J. APPLIED PSYCHOL. 467 (1978) (discussing results of experiment measuring commuter response to traffic impedance)

174. See Oren, supra note 166, at 150-161

Not surprisingly, therefore, officials at the federal and state level have begun to incorporate policies promoting work-at-home arrangements into efforts to reduce emissions and boost compliance with

175

environmental laws. Many of these measures encourage telecommuting, which is the work-at-home arrangement that perhaps is

176

least affected by zoning laws. Increasing the number of home-based businesses, however, holds even more promise of reducing automobile emissions: on average, telecommuters work only nine days per month at home, guaranteeing that many of them will be commuting to work

Pollution Control Law: What ‘s Worked

175. For examples of legislative efforts in the past year see S. 2447, 106th Cong. § 1 (2000) (proposing National Centers for Distance Working)

176. See supra note 146 and accompanying text.

177

most of the time. Almost by definition, on the other hand, individuals who own home-based businesses never have to commute to work.178

E. People Are Already Doing It

Finally, the fact that many people who wish to work at home simply open up shop despite the restrictions imposed by zoning codes may signal that these rules have become outdated. Indeed, the rapid proliferation of home businesses should be taken, at the very least, as prima facie evidence that large numbers of people—perhaps millions of people—are operating in derogation of legal prohibitions against working at home. Many of them undoubtedly either are ignorant of zoning rules that restrict their operations, or believe, probably correctly, that they can avoid detection by local zoning authorities if they circumscribe their operations.179

This course of action is not without its down sides, the main one being detection either by local officials or by tattle-tale neighbors who may initiate an enforcement action against a nonconforming

177. See WORK AT HOME IN 1997, supra note 138, at 1 (finding that “[w]age and salary workers who were paid for working at home averaged nearly 15 hours per week at home”). According to Anthony Downs, “telecommuting has to be common to make any significant impact” on traffic congestion or automobile emissions. DOWNS, supra note 165, at 62. For example, 10% of workers working at home one day per week would result in a 0.86% reduction in the number of morning peak-hour trips

178. See PRATT, supra note 9, at 51 (finding that individuals who own home-based businesses work an average of 35 hours per week at home)

179. Zoning enforcement is notoriously lax and frequently complaint driven. See, e.g., PLATT, supra note 25, at 296 (“Zoning has particularly been criticized for procedural inadequacies: lax enforcement, favoritism, lack of consistency with planning, and excessive rigidity in some cases and undue flexibility in others.”)

2001] HOME-BUSINESS DILEMMA 1229

180

business. While it is impossible to determine how frequently the gamble pays off, it is clear that municipal authorities do not always turn a blind eye to illegal home businesses. Since 1990, a number of reported cases have chronicled disputes between zoning authorities

181

and home entrepreneurs. Although these cases obviously underrepresent the number of actual enforcement actions taken against individuals who work from home, they do highlight the significant risk

182

associated with flouting the law. Put simply, individuals who choose to work at home must face the prospect that they might be forced to

183

close their businesses on a moment’s notice. They also risk liability for civil or criminal sanctions.184

This widespread defiance of zoning laws itself suggests that the rules governing home businesses may be candidates for reform. Not only is the precarious situation of illegal home business suboptimal for those acting in defiance of the law, but laws that force large numbers of people to operate in the underground economy can impede other

180. See City of Fairfield v. Courtney, No. CA92-11-226, 1993 WL 199310, at *1 (Ohio Ct. App. June 14, 1993) (regarding case in which neighbors reported that resident was operating a taxi service from home)

model home . . . .”)

(finding that complaints about home businesses represented the largest category of reported zoning violations in Houston suburbs)

181. See supra note 22.

182. Occasional press reports of enforcement efforts also suggest that the risk is not nonexistent. See supra notes 23-24.

183. See cases cited supra note 22.

184. See State v. Trachtman, 947 P.2d 905 (Ariz. Ct. App. 1997) (rejecting appeal from convictions for violating zoning code prohibiting home business)

185 186

legitimate fiscal and regulatory goals of the government. As Richard Epstein has observed:

The underground economy is a challenge to the legal order by those who refuse to obey its commands. The simple but persistent question is: What alternative to the status quo should we consider? One path asks whether further coercion is required to make violators comply with the law. The other path asks whether it is best to relax the norms, so that activities now underground will rise to the surface and receive the protection of the law.187

If favorable press coverage on home businesses is any indication of popular sentiment, many people indeed take a “nudge-nudge, wink

188

wink” approach to the issue, viewing illegal home businesses as “harmless” (to the extent that they have any awareness of the laws restricting them). This sentiment suggests that relaxation of the rules, rather than increased enforcement, might be an appropriate course of action.

IV. A NOTE ON EXTERNALITIES AND NEIGHBORHOOD CHARACTER

Although all of these factors suggest that current zoning rules are not well equipped to address the modern economic forces leading

185. See, e.g., David Cay Johnston, Giving at the Home Office

Sun-Times File. See generally FRANK A. COWELL, CHEATING THE GOVERNMENT: THE ECONOMICS OF EVASION (1990) (discussing tax evasion by underground businesses).

186. For example, some labor experts worry that home-based workers are vulnerable to exploitation, a concern that will be more difficult to police if home businesses have additional incentives to conceal their operations. See, e.g., Edwards & Field-Hendrey, supra note 8, at 27 (discussing debate about exploitation of home-based workers). Similarly, home child care centers that conceal operations to avoid detection by zoning officials may also evade licensing and oversight requirements. See, e.g., Protecting Children, Neighborhoods: Chandler Childcare Mess, ARIZ. REPUBLIC, June 20, 2000, at Community 4, available in LEXIS, News Library, Arizona Republic File.

187. Richard A. Epstein, The Moral and Practical Dilemmas of an Underground Economy, 103 YALE L.J. 2157, 2158 (1994) (footnote omitted).

188. Monty Python ‘s Flying Circus: Nudge Nudge, Wink Wink (BBC television broadcast, 1969).

2001] HOME-BUSINESS DILEMMA 1231

people to work from home, many residents—including perhaps many who wish to work from home—probably have some concerns about introducing large numbers of home businesses into residential neighborhoods.

While home businesses could disrupt their neighbors’ lives, there are a number of reasons to believe that their negative externalities could be kept to a minimum. For example, as Professor Ellickson has argued, the externalities policed by zoning tend to be “localized” harms,189 which could be addressed primarily through good manners. There is, of course, every reason to believe that most neighbors have good manners and would try to operate their home businesses in a responsible, neighborly manner. Still, it is hardly surprising that zoning enforcement actions against individuals who work from home are most frequently initiated by a neighbor’s complaint about homebusiness externalities, such as customer visits that increase traffic or delivery trucks that wake napping toddlers.190

Furthermore, zoning laws have long aimed to preserve an exclusively domestic sphere of human activity, freed from the

191

“profanities of work and commerce.” As a result, “[d] rafters of zoning ordinances are equally preoccupied with criteria that will maintain the [neighborhood’s] ‘single-family character’ . . . , a concern especially mobilized by the zoning category of ‘home occupation,’ for ‘home’ and ‘work’ are two distinct categories whose mixing requires the

192

utmost forethought, when not entirely prohibited.” Less stringent regulations on working from home may undermine this scheme: If

189. See Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681, 762 (1973).

190. See, e.g., Eric C. Evarts, Home Zone: New Approaches to Old Laws, CHRISTIAN SCI. MONITOR, Nov. 24, 1997, at B4 (noting that most complaints against home businesses come from neighbors), available in LEXIS, News Library, Christian Science Monitor File

191. PERIN, supra note 20, at 116-17.