Chapter 8 Home Occupations

• Library: The Zoning and Land Use Handbook (ABA) (2016 Ed.)

Chapter 8 Home Occupations

The term "home occupation" generally refers to businesses conducted out of homes in residential areas as "accessory uses" of the property. For a variety of reasons, an increasing number of people are using their homes for occupational purposes. Perhaps modern communications have eliminated the need for many companies to maintain a centralized workforce. In addition, there have always been more traditional home occupations such as medical offices, dental offices, attorneys' offices, and similar uses. A typical definition of home occupation is "[a]n occupation or profession customarily carried on by an occupant of a dwelling unit as a secondary use, in which use is clearly incidental to the use of the dwelling unit for residential purposes."¹

Courts around the country generally find that the presence of a commercial enterprise means that the homeowner cannot credibly argue that his or her conduct constitutes an "accessory use" of the residential property. In City of Minot v. Boger,² the Supreme Court of North Dakota held that a group of business owners using residential property to house commercial equipment and as a marshaling point for the employees of their business was far removed from normal conduct associated with residential purposes. This logic has even extended to later cases in which residents were precluded from parking commercial vehicles on their property.³

In Gilmore v. County of DuPage,⁴ the Illinois Appellate Court upheld the County Zoning Board's determination that the use of a single family home addition as a dental office violated the zoning ordinance restricting home occupations. This case focused on the change of one use to another. In particular, the plaintiffs had converted an addition to their house from a chiropractor's office to a dentist's office. The ultimate issue was whether they had properly changed one nonconforming use to another use. The court held that the dentist's office was not a continuation of a lawful prior nonconforming use. Of interest is the court's statement that the narrow scope allowed for such home occupations as nonconforming uses. This clearly related to the "legitimate goal of eliminating such nonconforming uses as rapidly as possible."⁵

It is not always easy to distinguish between a "proper" home occupation and a business that is not permitted as a home occupation, as the determination is primarily a fact-driven endeavor. On one level, municipal ordinances will often define the types of uses that fit into the category of home occupation.⁶ In the case of City of Rockford v. Eisenstein,⁷ the Appellate Court of Illinois upheld as a home occupation dancing classes for school-age children conducted by a widow in the basement of her home. The court distinguished between home occupations and prohibited businesses. In so doing, the court quoted from Bassett's Zoning as follows:

During the formative period of comprehensive zoning it became evident that districts could not be confined to principal uses only. It had always been customary for occupants of homes to carry on gainful employments as something accessory and incidental to the

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