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 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. …