On castles and commerce: zoning law and the home-business dilemma.

• Author: Garnett, Nicole Stelle

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 to the city dweller, worked at home.(2) 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; butchers, bakers, and candlestick 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" --social,(5) economic,(6) and, especially, technological(7)-- 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 farmers, were working at home at least part time.(8) 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 work home after hours.(9) Today, the American Association of Home-Based Businesses estimates that the number of people who work in 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 requests for new phone lines to service home offices,(11) office furniture companies are unveiling new lines of "home-office furniture,"(12) home builders are making home offices standard in all new homes, and contractors report high demand for home renovations to incorporate home offices.(13) Dozens of how-to books provide guidance on establishing a successful home business,(14) and a number of magazines and Internet websites focus on the concerns of home-based entrepreneurs and telecommuters.(15) And, true to Alexis de Tocqueville's observation that Americans are joiners,(16) 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 lobby for favorable changes in the law.(17) And with good reason: individuals who want to work at home face significant legal 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 newspapers and magazines.(19) On the other hand, the "home business" is, at a basic level, an affront to a core, foundational 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 years,(21) 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 decisions in recent years,(22) and reports of enforcement actions against home businesses in the popular press suggest that these cases may represent only the tip of the iceberg.(23) Furthermore, a 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 from tackling the home-business dilemma.(25) There are strong reasons to reconsider zoning restrictions on working from home: not only are many millions of people already violating zoning laws by working from home,(26) but technological advances are making it easier for more to do so every day.(27) Furthermore, working at home is often a viable solution to the dilemmas faced by parents struggling to balance work and family,(28) could enable low-income individuals to achieve economic self-sufficiency,(29) 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.

1. THE HISTORICAL AND IDEOLOGICAL FOUNDATIONS OF ZONING RESTRICTIONS ON WORKING FROM HOME

   The history of American zoning laws has been amply recounted elsewhere.(31) 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 called zoning.(32) 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 "haven" from the world(33)--that I focus in the following discussion.

   1. "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 contrary, "[e]ach household was a business."(34) The phenomenon of leaving "home" to go to "work" became commonplace only after the Industrial Revolution changed the rhythm of daily life.(35) 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 spheres."(36) In 1795, for example, when Martha Moore Ballard wrote "a woman's work is never done," she was referring not simply to her domestic duties as wife and mother; to the contrary, the sixty-year-old matron of a working farm also contributed to her household's finances by serving as a trusted midwife throughout her community and by manufacturing and selling domestic crafts to her neighbors.(37) By the middle of the nineteenth century, however, the long-enduring ideal of a wife like Ballard, whose industrious spirit caused biblical poets to call her "blessed,"(38) had given way to hazy Victorian images of the cloistered nurturer who shunned the world for domestic pursuits.(39) 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 industry left with them.(41) Long the productive building block of society, the home became the rarified "domestic sphere,"(42) which stood in sharp contrast to the grueling, cutthroat "world."(43) The idealized home became commerce-free;(44) it was "both a shelter from the anxieties of modern life ... and a shelter for those moral and spiritual values which the commercial spirit and the critical spirit were threatening to destroy."(45) The home was seen as an oasis, a place where women and children were shielded from the dangers of competitive modern economic forces,(46) and, importantly, a place of respite for a weary husband returning from work each night.(47) 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;--where is the treasury of pure disinterested love, such as is seldom found in the busy walks of a selfish and calculating world.(48) 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 spheres:(49) how could the home serve as a true sanctuary unless it was physically set apart from the realities of the urban work-a-day world? Kenneth Jackson's insightful history of the American suburbs chronicles the ties between the development--and especially the...