Spotlight on Zoning Practice

Who’s That Knocking at Your Door?

Nearly three-and-a-half years after the onset of the COVID-19 pandemic, I've grown somewhat numb to the (still) constant stream of news coverage of tech– and financial–sector fights over remote-work policies. As a planner, I pay much closer attention to how the renormalization of working from home is transforming the communities we serve. In some places, this societal shift has motivated local officials to update zoning regulations for home occupations. But in many others, the zoning rules seem frozen in 1965, prohibiting nearly all types of work from home.

This doesn't just reflect a mismatch with reality; it's also an equity issue. APA's Equity in Zoning Policy Guide calls on planners to lead efforts to broaden the range of permissible home occupations. In the September issue of Zoning Practice, "Equitable Zoning for Home Occupations," Gerald Adams; Kurt Schindler, AICP; John Wallace; Mark Wyckoff, FAICP; and I explore how planners and local officials can use zoning to remove unintentional and equitable barriers to working from home.

The Fuzzy Boundaries of Residential Use

You can trace the concept of a home occupation in the context of zoning back to the first decades of the 20th century. By 1953, there seemed to be consensus on the idea that permissible home occupations should be "customarily" associated with and "incidental" to the principal residential use. While these have always been subjective criteria, they seem especially challenging to apply now.

Consider this: Virtually no local zoning code places any restrictions on the number of social visitors or the frequency or duration of their visits to residential dwelling units. Yet, many, if not most, zoning codes require residents to secure some form of zoning approval before receiving even a single client, customer, or patient in their homes. It's hard to argue that these activities are inherently different from a land-use perspective. The difference is customary. Customs evolve and are seldom completely uniform over even small geographic areas (such as a zoning district).

Now, consider how many deliveries of packages, groceries, or meals your household received in the past week. Compare that to how many deliveries your household received in an average week just five or 10 years ago. Again, zoning is typically silent on this issue (provided the deliveries don't involve parking commercial vehicles for prolonged periods).

How confident are you that you could predict how many of your neighbors are operating an online retail business merely by observing the pattern of delivery trucks in your neighborhood?

Assuming your answer is "not confident," what should zoning say about business-related deliveries to residences?

A Reasonable Path Forward

I don't raise these examples to say the concept of zoning for home occupations is obsolete. Virtually all zoning regulations are rooted in highly subjective ideas about what types of buildings and activities are most consistent with a community's collective identity (now and in its aspirational future). And when we discover that the rules we've been using are out of step with broader societal trends, local needs, and desires, or our shared principles, we must work to change them.

The September issue of Zoning Practice takes this charge seriously. My estimable coauthors and I provide recommendations to bring home occupation regulations into better alignment with the evolving nature of work and a desire to equitably support and expand economic opportunities.

Many of these recommendations flow from a basic premise: A home occupation should not require a zoning application or permit if an averagely observant (but otherwise ignorant) neighbor would have a hard time saying for certain whether residents were engaged in any business activities. Zoning regulations that violate this premise are likely to have a disproportionately negative effect on single-parent households, households with older relatives or other dependents, and people with physical disabilities and a disproportionately negative effect on female, Black, and Indigenous business formation.

That doesn't mean there isn't room for nuance and context-sensitive approaches. But it is past time to reckon with the role that stereotypes and outdated assumptions play in zoning for home occupations.

Equitable Zoning for Home Occupations.

Each issue of Zoning Practice provides practical guidance for planners and land-use attorneys engaged in drafting or administering local land-use and development regulations. An annual subscription to ZP includes access to the complete archive of previous issues.

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About the Author
David Morley, AICP, is a research program and QA manager with APA and editor of Zoning Practice.

September 12, 2023

By David Morley, AICP