How you use your home, and how your employees use their homes, is governed by local zoning laws and regulations.[1] While zoning laws govern the use of property in general, a major concern of zoning regulation in today’s society is home use for business purposes. Since 1926 zoning has been recognized as a legitimate use of the state and local police power to regulate use of property to protect the health, safety and welfare of the community. Zoning was enacted to control adverse impacts of incompatible property uses such as noise, light, fumes, overcrowding, and traffic and to enhance property value and utility, initially of single family residences. In an attempt to harmonize property uses and avoid a clash of discordant activities, zoning regulations define and restrict the use that can be made of properties located in various zones. When it comes to using the home for work, regulators try to keep the work from consuming the home.
Whether found in a homogenous residential zone of single family homes or in a mixed use or commercial zone allowing apartments and condominiums, the primary use of the home is residential. Residential use is not often defined because it takes its meaning from the historical activities that are associated with home life: eating, sleeping, cooking, pets, kids, reading, lawn mowing, gardening, car washing, tree climbing, tv watching, radio blaring, and outdoor grilling. Residential use has expected associated impacts: cooking odors, lawnmower engine noise, kids on bikes, dogs barking, passenger vehicle traffic. In general these types of uses have relatively low impact on roads and utilities. Although normal use of a home would include lots of things that happen at work: reading, computing, analyzing, creating, repairing, mailing, telephoning, emailing, texting, and recording, the primary use is living, not working. Therefore most, if not all, of these activities can take place in the home without the zoning authorities taking notice or caring.
However, when does the “worker at home” become a “home occupation” subject to a specific subset of zoning regulations? As technology alters the normal work paradigm, and frees people to work anywhere, everywhere – on land, sea and in the cloud, working at or from home takes on a whole new meaning, far removed from traditional home occupations. Whether or not a person “working from home” qualifies as a regulated home occupation depends on the nature of the work done at home.
Current zoning ordinance definitions of home occupation vary. Some definitions are broad: “an occupation, profession, activity or use that is clearly a customary, secondary, and incidental use of a residential dwelling unit,”[2]“the accessory use of a parcel that shall constitute, either entirely or partly, the livelihood of a person living on the parcel,”[3] and “an office (occupation), shop, or industry conducted entirely inside a dwelling unit or accessory structure by a member of the family residing in said dwelling unit.”[4] These definitions arose, however, from the bricks and mortar world as evidenced by some of the “permitted” examples of home occupations:
- Dressmaking, sewing, tailoring, knitting and shoe lacing;
B. Painting, sculpturing or writing;
C. Telephone answering;
D. Home crafts, such as model making, rug weaving, lapidary work and cabinet making;
E. Tutoring, limited to four students at a time;
F. Home cooking and preserving;
G. Computer programming;
H. Babysitting services for one to three non-resident children from one or more unrelated families.[5]
To keep the home occupation from overwhelming residential use, restrictions are imposed limiting the number of workers, vehicles, signs, outdoor activity, hazardous material, utilities and services:
Home occupations are allowed in any dwelling unit provided the provisions of this section are met:
- Home occupation must be located within a dwelling unit.
- Exterior of the building must not create or display any evidence of the home occupation, except a permitted sign. Variation from the residential character and appearance is prohibited.
- Home occupation use of the dwelling must not utilize more than 25% of the gross floor area (including basement and accessory structures) of the dwelling.
- No toxic, explosive, flammable, combustible, corrosive, etiologic, radioactive, or other restricted materials that are improperly used or stored onsite (sic).
- Not more than one commercial vehicle may be kept overnight at the premises.
- Adequate off-street parking must be provided and used.
- Home occupation must be conducted by the resident of the premises.
- There shall be no outside operations, storage, or display of materials or goods.
- No process shall be utilized which is hazardous to public health, welfare, or safety.
- This home occupation must not offend by emitting smoke, dust, odor, noise, gas, fumes, lights, or refuse matter.[6]
More intense in-home business uses may be permitted with special approval conditioning the use on specific provisions. A good example of this is Loudon’s Zoning Ordinance (2008), which differentiates minor home occupations from major home occupations:
Permitted minor home occupations include, but are not limited to the following:
- Artists and sculptors;
- Authors and composers;
- Home crafts for offsite sales;
- Office facility of minister, rabbi, or priest;
- Office facility of a salesman, sales representative, or manufacturers’ representative provided that no transactions are made in person on the premises;
- Professional office facilities;
- Individual tutoring;
- Preserving and home cooking for sale off site;
- Individual instrument instruction provided that no instrument is amplified;
- Telephone solicitation work; and
- Family daycare home involving not more than three children.
Major home occupations requiring a special exception include but are not limited to the following:
- Any use allowed as a minor home occupation;
- Single chair beauty parlors and barber shops;
- Photo developing;
- Organized classes with up to six students at one time;
- Television and other electrical repair excluding major appliances such as refrigerators etc.;
- Small engine repairs, excluding automobiles, motorcycles and snowmobiles;
- Upholstering;
- Dressmaking;
- Pet grooming;
- Woodworking including cabinet making; and
- Day care facilities caring for more than three children.
- [Local contractors subject to all requirements of this section. adopted 2005]
In this way a balance is struck between the reasonable use of the home for work and the impact on the neighborhood.
With the proliferation of home-work opportunities, the transformation of the work day, and the expansion of technology based work enhancements, as a practical matter, formerly unregulated home office activity may unwittingly be redefined as a regulated home occupation by language in a zoning ordinance. In regulating home occupations, the municipality charged with distinguishing “work activity” from “home activity” must strike a balance between preserving the residential character of the zoning district while maintaining the residents’ freedom to engage in sensible business activities in their homes. Historically, when zoning regulations first arose, people customarily used their homes for both work and family. Formally enacted in the early decades of the 1900s, zoning coincided with the ongoing centralization of industry and its segregation from rural, residential and agricultural uses. When zoning was adopted, it necessarily recognized the usual and customary home occupations that existed: the “doctor, dentist, lawyer, or notary had from time immemorial used his own home for his office. Similarly the dressmaker, milliner, and music teacher worked in her own home.”[7] The challenges arose as home business opportunities expanded to real estate offices, dance, karate and yoga studios, salons and spas, engine repair, machine shops, bed and breakfasts and dog breeding, to name but a few.
Zoning ordinances are adopted locally following specified procedures and thus may lag behind fast changing lifestyles. As home and work activities continue to evolve, new parameters are developed, slowly, to distinguish permissible home based work activity from prohibited commercial operations. Is the activity income generating? Should it make a difference if an author is paid for his writing while a pen pal is not? Is the activity bringing people to the home? Should it matter if it is a dance class versus a book club meeting? Is the activity advertised by sign? Should it matter if a sign says “Income Tax Preparer” as opposed to “Beware of Dog”? Is the office home-based while the service happens elsewhere? Should it matter if the resident keeps the books at home for an off-site landscape service? Are there other employees/assistants in the home? Should it matter if these others are family members? Is the home receiving regular deliveries? Should it matter if the delivery truck is bringing business materials as opposed to personal catalog orders? Is the home the principal place of business? Should it matter if the home use is by a consultant or independent contractor instead of an employee? These are the concerns addressed by each municipality that produce a variety of regulations pertaining to home based business. How a specific home based business activity will be interpreted lies with the unique facts and circumstances of the situation including the specific use, the relevant neighborhood, the intensity of the activity, the available infrastructure and the surrounding environment. Because each use, each community and each neighborhood is different, it is not surprising that the same home occupation may be allowed in one community while denied in others.
This brings us back to remote workers and the corps of cyber-enabled home-based workers. From a practical point of view, those working remotely from home will often not be considered engaged in a home occupation at all because remote workstations have relatively little outside exposure and the home worker has a “real office” to go to when not working at home. But as externalities increase, more work is conducted at the remote home office, and more independence is afforded the employee or contractor, the likelihood of being considered by the authorities to have transitioned into the category of home occupation increases as well. Deliveries, visitors, noise, trash, lights, vehicles, storage and home additions all may raise a question as to how much work is being done in the home and whether the endeavor needs a permit, is subject to conditions, or is prohibited in the zone. Thus it is wise to consider the zoning perspective when planning a significant work-from home option.
How should one consider work from home options? First check the local zoning ordinances for applicable provisions governing home occupations and/or accessory uses in residential areas; second, limit the external impact of the work done at home; third, hold meetings and conferences at non-home facilities; and fourth, limit the work-related traffic, vehicles, and products that go to and from the home. And if there is inquiry from the local zoning authorities, be prepared to address the work use of the home in the context of the primarily residential use of the home. At this point, seeking legal counsel would also be advisable, not because anything is “wrong” necessarily, but because opinions can differ as to how a use is classified, particularly when the activity does not fit neatly into the language of the zoning ordinance and interpretations can vary. The zoning administrator’s decision, if adverse, could trigger a compliance notice, a cease and desist demand, or a request that to obtain a permit. Any of these could prompt appeals to the zoning board of adjustment or proceedings in court where strict time limits control available remedies. These legal entanglements often can be averted by working with the local officials charged with enforcing the ordinances to protect the community from incompatible uses.
As work becomes more integrated into life as a result of lifestyle choices, technology, smart planning, sustainable communities and reduced commuting, it is expected that home based work will grow and zoning treatment of home occupations will continue to evolve. Thus it is important to understand the implications of a home office or business before establishing one and to seek the input from a zoning professional and/or legal counsel.