The Penn Central Three-Part Test


The landmark Penn Central test for regulatory takings may be reconsidered by the U.S. Supreme Court. Here is an article I have written on this recent, important development:

Throwback Thursday: Home Occupations

Originally published Summer 2013

More people are working at home doing everything from hairdressing to snowmobile repair to doggy day care . . . are you planning and regulating for this new world?

People Have Always Worked at Home, But…

Home occupations predate zoning regulations by thousands of years. Isn’t farming the quintessence of working at home? Now that we have urbanization and land-use regulations we need to consider how to accommodate these workers. The numbers are large and getting larger with telecommuting and other changes in how we work. Chances are your local regulations reflect a simpler, bygone era.

More Are Working at Home

The U.S. Census reports that almost 10 percent of workers worked at home at least one day a week, with nearly three-quarters of those working full time at home. One in 10 of workers over 65 worked exclusively at home. A quarter of those home- based workers are in management, business, and financial occupations. Perhaps you already allow lawyers, public accountants, bookkeepers, and financial advisers to work out of their homes.

Probably Many Illegal

The U.S. Census is not your local zoning enforcement officer so it is not asking the big question—are all these happy home workers permit- ted under zoning? In a single decade from 2000 to 2010, the home-based workforce in computer, engineering, and science occupations increased by nearly 70 percent. Do you call those out in your regulations? Probably not, and those workers are technically violating your local zoning laws. So what are we to do?

Find Out What You Have

Ask around. Do surveys. Get the high school civics class involved and have those eager teenagers interview people at the local grocery about their work-at-home activities and what they think your community ought to be doing with home occupations.

Avoid Creating Unnecessary Willful Violators

Define away the small stuff. Telecommuting is working at home but you don’t need to regulate it. So is nonindustrial work by the resident without employees or customers — think of the weaver with a loom who sells her goods on eBay. No employees, no customers, only an occasional FedEx or UPS truck, no hazardous materials, no noise or other adverse impacts . . . define that as an as-of-right use accessory to the residential use.

Define More by Impact Than Specific Use

Type in home-occupation zoning in any search engine, make a compendium of examples, and then spend some time with your board or commission over several meetings discussing what you think is appropriate for home occupations. Most of the regulations define home occupation in terms of work that is conducted by the people who live in the home and that is incidental and secondary to the residential character of the dwelling. Try this typical one, for example, from Brush, Colorado, population 5,292: “. . . a use conducted principally within a dwelling and carried on by the inhabitants thereof, which use is clearly incidental and secondary to the use of the dwelling for dwelling purposes and does not change the character thereof; provided that no article is sold or offered for sale except such as may be produced by members of the immediate family residing on the premises.”

At the other end of the size continuum is New York City:

  • A “home occupation” is an accessory use which:

    • is clearly incidental to or secondary to the residential use of a dwelling unit or rooming unit;

  • is carried on within a dwelling unit, rooming unit, or accessory building by one or more occupants of such dwelling unit or rooming unit, except that, in connection with the practice of a profession, one person not residing in such dwelling unit or rooming unit may be employed; and

    • occupies not more than 25 percent of the total floor area of such dwelling unit or rooming unit and in no event more than 500 square feet of floor area.

Most regulations use a mix of impact regulation and either specific uses or illustrative uses. New York City expressly prohibits certain uses as home occupations.

Use Discretionary Regulation

Variances are not the way to go. Use special permits or conditional uses— same thing, different term—and site plan review. Spell out in your regulations what types of conditions you might impose on: parking, visitors, employees, hours of operation, deliveries, appearance, and other aspects that may impact residential character. Consider a time limit of on the permit, say one year with extensions for multiple years thereafter if it is run well and the neighbors have no complaints.

Embrace New (Old) Forms of Housing

Have you heard of live/work units? They are combinations of living and working spaces that may at one time be all residential or easily converted   to include working spaces. In the old days before zoning they were the typical storefront shop with the residence above or in back. APA’s Smart Codes: Model Land-Development Regulations (PAS 556) has a Model Live/Work Ordinance at Section 4.2. Try some in your community. They provide a nice street-scape and a chance for small businesses to flourish.

Transitions Are Difficult

Successful home occupations often outgrow their space. If you have good controls on the number of employees, number of visitors, number of vehicles, hours of operation, and the like, you and the home-based owner will know when you reach the point when it is time to move on.

Resources

From APA: Regulating Home-Based Businesses in the Twenty- First Century (PAS 499), Home Occupation Ordinances (PAS 391), and Jobs-Housing Balance (PAS 516), all available at APAPlanningBooks.com (Previous link inactive, usehttps://www.planning.org/books/ to access.)

From Albany Law School: “Zoning for Home Occupations” (2006), avail- able at http://www.governmentlaw.org/files/RELJ- zoning_home_occupations.pdf. (Previous link inactive, use ZONING FOR HOME OCCUPATIONS: MODERNIZING ZONING CODES TO ACCOMMODATE GROWTH IN HOME‐BASED BUSINESSES.)

Dwight Merriam, Nationally Prominent Land Use Expert, Leads Panel at American Bar Association Annual Meeting

The ABA has generously provided, free to the public, excerpts from the book and materials from the panel presentation, please click-thru the article to access them: