UNTRANSIT: REMOTE WORK AND THE TRANSFORMATION OF ZONING.

• Author: Stern, Stephanie M.

INTRODUCTION 80 I. PRIVILEGING TRANSIT OVER REMOTE WORK: MODERN DISPARITIES, HISTORIC ORIGINS 84 A. Disparate Local Investment in Transit vs. Untransit 85 B. The Historical Origins of Separating Work from Home Through Transit and Zoning 88 II. THE ADVANCE OF REMOTE WORK 92 A. The Rise of Remote Work 92 B. Inter-Local Competition: Resuscitating Tiebout 97 C. Housing Affordability via Dispersion 99 D. Other Benefits 101 III. BEYOND TRANSIT: LOCALIZING REMOTE WORK 103 A. Local Institutional Competence: Scale, Variability, and Experimentation 103 B. Public Funding of Private Business: The Local vs. Private Role 106 C. Public Choice Barriers 108 D. State and Federal Role: Incentive Misalignments, Regulatory Backstops, and Funding 109 IV. UNTRANSIT POLICIES: OPTIONS FOR REMOTE WORK ZONING AND SUPPORT 111 A. Digitizing Local Land Use Law 112 1. Broadband Quality and Access 112 2. Local Policing and Remote Work 115 B. Zoning Reforms for Remote Work 117 C. Incentive Zoning for Remote Work Centers 119 D. Mixed-Use Zoning 122 E. Relocation Incentives for Remote Workers 122 V. THE LOCAL ROLE IN REMOTE WORK: CONSEQUENCES AND CONCERNS 123 A. Gender and Career Advancement 124 B. Equity Troubles: Subsidizing Remote Work Amenities 126 C. Productivity 128 D. Undermining Cities? 130 CONCLUSION 131 INTRODUCTION

Since the movement from an agrarian to an industrial economy, the separation of business from residential property has been a central aim of zoning laws, comprehensive plans, and nuisance law. (1) Accordingly, land use policy and funding have focused heavily on transit as the conduit between work and home. Local, regional, state, and federal governments have planned and subsidized transportation networks that shuttle people between work and home, with laudable attention in recent years to the environmental benefits of lower-carbon mass transit. (2) In contrast, local government has played a minimal, and at times obstructive, role in planning, zoning, and providing amenities for remote work. (3) Scholars have critiqued zoning prohibitions of home-based businesses and proposed less restrictive alternatives. (4) However, there has not been an account of how transit-oriented land use law might support working from home, rather than merely tolerate it. (5)

From white collar professionals finishing work in the evenings to part-time sellers on eBay, it is increasingly uncommon for a household's paid work to be performed entirely at a centralized, commercial work site. Most workers do some work either from home or nearby (i.e., not at a job site) and a significant number work entirely from home. (6) The most sought-after schedules for U.S. workers, and perhaps the most productive, are hybrid schedules that split the week between work at home and a centralized job site. (7) The revolution in information and technology, as Ravi S. Gajendran and David A. Harrison observe, "has compelled firms to unbind time and task from place." (8) Most recently, the coronavirus pandemic has dramatically increased the number of Americans working remotely and illuminated the astounding amount of work that can be performed from home. (9)

Despite the growing role of remote work in labor markets, localities have been slow to support it through zoning and local goods (e.g., broadband, remote work centers). The sluggish response of local governments is not surprising in light of land use history and its effect on mindset and policy. Across the past century, the spatial division of work and home accomplished through zoning laws and transit has created a policy baseline that has constructed transit as the central work-related good provided by localities and truncated the local role in remote work. (10) The tethering of labor to place has also propped up cities and municipal tax revenues, a reason why some cities oppose regional or state policies to expand remote work. (11)

Remote work policy is needed--and inevitable--as localities confront growing numbers of remote workers. Already, "zoom towns" have arisen spontaneously in certain areas in response to influxes of remote workers. (12) Localities, seeking to expand their tax bases and increase home values, will increasingly court remote workers. (13) In addition to the growing demand for remote-work friendly localities, there are also a number of societal benefits to remote work. In particular, remote work is likely to improve average housing affordability by creating more housing options for workers who commute less frequently, or not at all, to centralized workplaces and decreasing housing prices in large cities. (14) In addition, the untethering of work from centralized workplaces should spur welfare-enhancing gains to local efficiency as localities compete for increasingly mobile residents. (15)

There are unique advantages to supporting remote work at the local level. Local governments typically have the power and proximity to zone land and tax residents to finance local-scale goods. (16) Compared to state or federal remote work laws, local action can respond, albeit imperfectly, to variability in the prevalence and type of remote workers and the differing needs of residents in various localities. Localities can also offer decentralized experimentation with remote work policies, an important point in light of uncertainties attending the shift to remote work. The localization of remote work policymaking envisioned in my account is robust, but not exclusive, and operates in parallel to remote work provision by private firms and other levels of government.

Local support for remote work can take a number of forms. Depending on resident needs and local resources, local governments' role in remote work could include zoning protection for remote work and home businesses, public and private remote work centers, and increased mixed-use zoning to provide proximate retail and dining amenities for home workers. (17) Because local government typically lacks the nimbleness and efficiency of markets, reducing zoning and other local regulatory barriers for private providers of remote work amenities and real estate is important. Highly motivated localities, and in some cases states, are also experimenting with incentives to attract remote workers, particularly from the technology sector. (18) Likely the most impactful change will be to increase local provision of internet connectivity and cyber-security, moves that dovetail with the growing interest in digitized "smart cities." (19)

Localities will face challenges to zoning and supporting remote work, including limited fiscal capacity to support remote work and opposition from interests that stand to lose from increased remote work. (20) In some cases, state or federal government may need to provide funding to incentivize localities to support remote work when local governments cannot capture the full benefit of their investments (e.g., global carbon reduction from telecommuting). In other cases, regulatory backstops by state or federal government may be necessary to prevent extra-local harms from remote work, such as sprawl from the dispersal of remote workers to outlying metro or rural areas. In addition, the growth of remote work and local provision of remote work zoning and goods may exacerbate economic and racial inequities and weaken the position of some large cities.

This Article contends that land use policy has neglected remote work and advocates for expanding the local government role to include supporting remote work, rather than merely tolerating it. Part I describes the non-neutral baseline in land use law, which focuses on transit as the conduit between spatially separate workplaces and homes and affords little attention to zoning and providing local goods for remote work. This "transit mindset" arises from historical developments, such as the advent of the streetcar and the use of transit and zoning to impede suburban racial integration. Part II examines the rise of remote work and its inevitable impact on land use law, as well as the social benefits of remote work for housing affordability and local efficiency. Part III examines the case for "localizing" remote work and describes the advantages and challenges of local zoning and provision of goods for remote work. Part IV offers examples of zoning reforms, critical services, and desirable amenities that localities might provide for remote workers, with a particular focus on internet connectivity. Finally, Part V considers concerns and potential objections to promoting remote work at the local level, including equity, impacts on cities, and effects on labor productivity. Of note, throughout the Article, the terms work from home, telecommuting, and remote work refer interchangeably to individuals working regularly, though not necessarily exclusively, from their residences or private or public community spaces (e.g., remote work centers, coffee shops, and libraries).

1. PRIVILEGING TRANSIT OVER REMOTE WORK: MODERN DISPARITIES, HISTORIC ORIGINS

   Despite the fact that remote work has increased dramatically across the past three decades, it remains outside the central purview of local government. (21) While local governments and regional transit authorities invest mightily in roads, transit infrastructure, and mass transit, they generally fail to fund, plan, or zone for remote work. This orientation is the byproduct of not only current forces but historical ones. From its earliest inception, land use law served to enforce the separation of work from home created through the development of streetcars and eventually other forms of transit. (22) This history has begot a plethora of zoning laws, policies, and subsidies that favor transit to work over remote work and created a non-neutral baseline--one that has propped up both cities and transit. As a result, land use law has lagged behind the shift toward remote work by offering scant support for working from home and in some cases maintaining...