Agenda - Planning Commission - 11/02/2006

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N\odernizing Zoning for Home Occupations By Patricia E. Salkin, AICP According to the 2000 U.S. Census report, over four million people-3.3 percent of the nation's population-work from home. That number can actually range between 18.8 million to 20.3 million, depending on how one defines .working from home." The Small 8usiness Administration reported that in 2000. nearly 20.000 entrepreneurs grossed more than $1 million operating from a home- based environment. Labeled by some as an . "explosion of home-based businesses," a number of organizations implore local officials to reassess their antiquated zoning laws to address this trend. Zoning codes. traditionally designed to separate incompatible land uses. led to the establishment of distinct zoning dis- tricts for businesses and residential areas. However. with the growth in home-based busi- nesses and ~ome occupations. municipalities must creativ~ly balance public health, safety, and welfare in residential districts against the pressures necessitating the accommodation of appropriate home-based businesses. Environment and energy conservation advocates tout zoning for increased home occupations as a positive step towards reduc- ing daily commuter traffic, energy consump- tion. and air pollution. The American Planning Association advocates reducing dependence on fossil fuels by promoting land-use actions that allow for home-based occupations. and thereby reducing the number of commuters. On the APA website, one planner recently commented: Twenty-five years ago. planners and zon- ing regulations focused on segregating uses in different zones. With the advent of computers, decentralization of the workplace. work-at-home environments. footloose industry leaving the country, and the abandonment of employees to fend for themselves for retirement plan- ning and health care protection, individu- als and families are faced with doing everything from home-multitasking and being self-reliant. 56 One of the leading smart growth and land- use advocates observed that as telecommuting and home offices become a way of life. local zoning codes should reflect. rather than deny. the reality. In a recent law review article. Professor Nicolle Stelle Garnett, law professor in property and land use at Notre Dame University, urged local officials to tackle the home-based business dilemma. She explained that working from home can help parents balance work and family, enable low-income individuals to achieve economic self-sufficiency. and alleviate social and environmental problems resulting from sprawl. The Town of Aoyd. New York. Comprehensive Plan echoes these sentiments: Home occupations can provide numerous benefits for both home-based workers and the town. Homli-based businesses provide useful servi.~es and encourage business growth by eliminating the initial need for some small businesses to rent commercial space. an important factor to someone who is just starting a new ven- ture. Working at home also saves com- muting and childc;are costs and reduces traffic congestion. Home occupations can also provide many people who might be unable to work outside the home (includ- Ing single parents. the elderly, and the disabled) an opportunity to earn a living. And by creating activity in residential neighborhoods that might otherwise be deserted during the day. home occupa. tions help to reduce crime. Professor Garnett points out that many people currently engage in home occupations despite the fact that in many cases these uses violate zoning codes. While she acknowledges that in some situations individ- uals may not know the restrictive zoning laws, she suspects that many believe they can avoid detection by circumscribing their activities. However, the prospect of unhappy neighbors running to the local zoning enforcement officer to complain puts home- based business operators at constant risk for civil or criminal sanctions and the possibility of needing to cease operations immediately if found in violation of the local zoning law. Professor Garnett concludes that the "wide- spread defiance of zoning laws itself sug- gests that the rules governing home busi- nesses may be candidates for reform." This issue of Zoning Practice offers plan- ners ideas and examples of ways to modern- ize local zoning laws to balance the growing demand by residents to engage in legitimate home-based businesses. while protecting community character and the health, safety. and welfare of neighbors in residential zoning_ DEFINING "HOME OCCUPATION" The U.S. Supreme Court established zoning as a constitutionally valid exercise of state police power in Village of Euclid v. Ambler Realty Co- (272 US 365 (1926)). Euclid, Ohio. soughtto pre- vent hotels. retail establishments, or apartments from cropping up around residential areas for the purposes of limiting building height and promot- ing residential safety. Ambler Realty fought Euclid's zoning, claiming it violated due process. However. the court supported the zoning as rational under the 14th Amendment's due process requirements and therefore within the states' police power. In "ModemizingYour Zoning Ordinance to Regulate Home-Based Businesses." Andrew Cates of the University of Connecticut asserts that courts now presume zoning ordinances fall within the states' police powers. However. municipalities-not state enti- ties-create zoning laws. Local zoning laws and ordinances define "home occupation" in slightly different ways. For example, officials in Cochise. Arizona. define home occupation as "an activity carried on by ZONINGPRACTICE 9.06 AMERICAN PLANNING ASSOCIATION I page 2