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As I write this sentence, I am bouncing my six-month-old daughteron my knee, eating one of those awful cardboard-textured cereal bars,and pondering the best way to explain the difference between springingand shifting executory interests to my first-year property class. Imight also be breaking the law.(1)
For most people, for most of human history, work and home have beeninextricably intertwined. Practically everyone, from the farmer to thecity dweller, worked at home.(2) Houses and apartments were not onlydwelling places, but also centers of commercial activity.(3) Physicianstreated patients and attorneys serviced clients from offices located intheir homes; butchers, bakers, and candlestick makers lived above,below, or behind their shops. Tailors and seamstresses greeted customersin their living rooms and altered clothes in their bedrooms. Blacksmithsand carpenters plied their trades in backyard workshops. Familiesregularly rented out a room or two to make ends meet. Indeed, thephenomenon of leaving home to go to work did not become the norm untilthe Industrial Revolution created two "separate spheres" ofhuman existence, the domestic and the commercial.(4)
For nearly two centuries, there was every reason to believe thatthis rearrangement in social organization was going to be, for better orfor worse, a permanent one. Today, however, other"revolutions" --social,(5) economic,(6) and, especially,technological(7)-- are bringing the two spheres together again formillions of Americans. In 1991, the U.S. Census Bureau found that 20million people, other than farmers, were working at home at least parttime.(8) Four years later, another nationwide survey estimated that thenumber had climbed to 43.2 million, with 12.7 million people working inhome-based businesses and the remainder either telecommuting or bringingwork home after hours.(9) Today, the American Association of Home-BasedBusinesses estimates that the number of people who work in home-basedbusiness has increased to more than 24 million.(10) Whatever the precisenumbers, home businesses are making their mark on the American economy.Phone companies are glutted with requests for new phone lines to servicehome offices,(11) office furniture companies are unveiling new lines of"home-office furniture,"(12) home builders are making homeoffices standard in all new homes, and contractors report high demandfor home renovations to incorporate home offices.(13) Dozens of how-tobooks provide guidance on establishing a successful home business,(14)and a number of magazines and Internet websites focus on the concerns ofhome-based entrepreneurs and telecommuters.(15) And, true to Alexis deTocqueville's observation that Americans are joiners,(16) a numberof private home business associations have formed to serve asclearinghouses for resources and information, to obtain discount groupinsurance rates, to hold conventions, and, importantly, to lobby forfavorable changes in the law.(17) And with good reason: individuals whowant to work at home face significant legal obstacles, especiallymunicipal zoning laws that severely restrict the operation of homebusinesses when they do not prohibit them outright.(18)
Home businesses present a particularly vexing dilemma for localzoning officials. On the one hand, cultural indicators suggest that manyAmericans perceive the opportunity to work at home as a good thing,perhaps a necessity in some cases. For example, stories of the millionsof people doing so are championed by reporters writing human interest"pulse-of-the-nation" articles in major newspapers andmagazines.(19) On the other hand, the "home business" is, at abasic level, an affront to a core, foundational principle of Americanzoning laws--the idea that "home" and "work" areincompatible, that the "home" should be carefully segregatedinto exclusively residential, commerce-free zones.(20) While the issuehas attracted little scholarly attention in recent years,(21) allindications suggest that local officials increasingly will find itdifficult to avoid confronting the continued viability of zoningproscriptions against working at home. Efforts to enforce zoning rulesagainst home businesses have generated a number of judicial decisions inrecent years,(22) and reports of enforcement actions against homebusinesses in the popular press suggest that these cases may representonly the tip of the iceberg.(23) Furthermore, a number of jurisdictionsalready have undertaken a review of the zoning laws governing homebusinesses--often after increasing numbers of home businesses forced theissue upon them.(24)
In this Article, I argue that local officials should not shy awayfrom tackling the home-business dilemma.(25) There are strong reasons toreconsider zoning restrictions on working from home: not only are manymillions of people already violating zoning laws by working fromhome,(26) but technological advances are making it easier for more to doso every day.(27) Furthermore, working at home is often a viablesolution to the dilemmas faced by parents struggling to balance work andfamily,(28) could enable low-income individuals to achieve economicself-sufficiency,(29) and might help alleviate the social andenvironmental problems caused by suburban sprawl.(30)
That is not to say that local officials should ignoreresidents' legitimate concerns about home businesses'potential to significantly disrupt their neighbors' lives. Rather,I argue that current zoning law's segregation of "work"from "home" is based in part upon the outdated belief that"working" and "residing" are incompatible. As aresult, while current rules simply exclude most home businesses fromresidential zones as a matter of course, I urge local legislatures toconsider amending zoning laws to instead target residents'legitimate concerns about home businesses, namely their potential togenerate negative externalities and to undermine neighborhood character.I conclude with a brief discussion of possible ways that local officialsmight accomplish this difficult task.
I. THE HISTORICAL AND IDEOLOGICAL FOUNDATIONS OF ZONINGRESTRICTIONS ON WORKING FROM HOME
The history of American zoning laws has been amply recountedelsewhere.(31) Thus, I will not repeat others' descriptions of theeconomic, ideological, demographic, and political forces that led to thenear-universal adoption of that peculiarly American institution calledzoning.(32) However, in order to understand how zoning laws came toexclude almost all commerce, including home businesses, from residentialneighborhoods, it helps to know a bit about one ideological thread thatweaves through the fabric of American zoning laws. It is on thatthread--the primacy of the home as "haven" from theworld(33)--that I focus in the following discussion.
A. "Separate Spheres" of Work and Home
For most of human history, the idea that a "home" couldalso be a center of productive activity was hardly an aberrant one. Onthe contrary, "[e]ach household was a business."(34) Thephenomenon of leaving "home" to go to "work" becamecommonplace only after the Industrial Revolution changed the rhythm ofdaily life.(35) Historians described how the physical separation of workand home affected societal views of the home (and, importantly, of womenwithin the home), culminating in the long-enduring ideology of"separate spheres."(36) In 1795, for example, when MarthaMoore Ballard wrote "a woman's work is never done," shewas referring not simply to her domestic duties as wife and mother; tothe contrary, the sixty-year-old matron of a working farm alsocontributed to her household's finances by serving as a trustedmidwife throughout her community and by manufacturing and sellingdomestic crafts to her neighbors.(37) By the middle of the nineteenthcentury, however, the long-enduring ideal of a wife like Ballard, whoseindustrious spirit caused biblical poets to call her"blessed,"(38) had given way to hazy Victorian images of thecloistered nurturer who shunned the world for domestic pursuits.(39)Work, at least work for pecuniary gain, came to be seen not as a virtuebut as a "contagion."(40)
Through the transformation from preindustrial to modern economicorganization, men left home for work, and commerce and industry leftwith them.(41) Long the productive building block of society, the homebecame the rarified "domestic sphere,"(42) which stood insharp contrast to the grueling, cutthroat "world."(43) Theidealized home became commerce-free;(44) it was "both a shelterfrom the anxieties of modern life ... and a shelter for those moral andspiritual values which the commercial spirit and the critical spiritwere threatening to destroy."(45) The home was seen as an oasis, aplace where women and children were shielded from the dangers ofcompetitive modern economic forces,(46) and, importantly, a place ofrespite for a weary husband returning from work each night.(47) As a NewHampshire minister urged in 1827,
It is at home, where man ... seeks a refuge from the vexations and embarrassments of business, an enchanting repose from exertion, a relaxation from care by the interchange of affection: where some of his finest sympathies, tastes, and moral and religious feelings are formed and nourished;--where is the treasury of pure disinterested love, such as is seldom found in the busy walks of a selfish and calculating world.(48)
B. The Rise of Commerce-Free Zones
Not surprisingly, especially given the legitimate health and safetythreats posed by rapidly industrializing cities, these sentiments ledinevitably to the desire to put miles between the two spheres:(49) howcould the home serve as a true sanctuary unless it was physically setapart from the realities of the urban work-a-day world? KennethJackson's insightful history of the American suburbs chronicles theties between the development--and especially the promotion--of earlysuburbs and the separate-spheres ideology.(50) He notes, for example,that while earlier peripheral cities self-consciously patternedthemselves after their compact urban neighbors, late-nineteenth-century"suburbs" featured detached, single-family homes set in asemi-pastoral setting.(51)
The single-family dwelling came to embody the domestic sphere, andthe isolated suburban household became the American ideal. Boosterstouted this model of development as the perfect family environment--atrue sanctuary purged of the chaos, filth, and degradation associatedwith the industrial cities.(52) As Jackson observes, "[t]hesuburban ideal offered the promise of ... retreat from commercialism andindustry," and every suburban home--from the Victorian mansion tothe working man's cottage--"seemed immune to the dislocationsof an industrializing society and cut off from the toil and turbulenceof emerging immigrant ghettoes."(53) Thus, one advertisem*nt for anew suburban development featured "Lady Justice" promising anindustrious working man a home on an inexpensive payment plan: pointingto a tidy suburban cottage, she proclaimed, "Where All WasDarkness, Now Is Light."(54)
Thanks to abundant land, increasingly efficient transportation, andthe development of cheaper construction methods (especially the"balloon frame" house),(55) dreams of the "ruralizing ofall our urban population" shared by suburban visionaries such asFredrick Jackson Olmstead and Andrew Jackson Downing had begun to berealized by the early twentieth century.(56) As suburban houses becamemore affordable, more "common men" could afford to live inthem. The suburban "ideal" was becoming a reality for largernumbers of American families by the time that zoning exploded onto theAmerican scene in the 1920s.(57)
The reformers responsible for the remarkable legislative phenomenonof American zoning(58) were undoubtedly driven by a complex set ofmotives, ranging from a Progressive-Era faith in "scientificgovernment"(59) to revulsion at the condition of immigrantworkers' tenements (combined perhaps with an ugly dose ofnativism).(60) As others have observed, however, evidence of theirdesire to legislate the suburban ideal by shielding the talismanic"home" from the degradations and disruptions of commerce andindustry is unmistakably present, both in their own writings(61) and,especially, in judicial decisions considering constitutional challengesto the first zoning ordinances.(62)
In the decade before the United States Supreme Court upheldcomprehensive zoning laws,(63) dozens of state courts had occasion topass upon their constitutionality.(64) While the state courts dividedsharply,(65) opinions approving the laws frequently contained echoes ofthe Victorian-Era "separate spheres" ideology. The CaliforniaSupreme Court held, for example, that
residential zoning may, in the last analysis, be rested upon the protection of the civic and social values of the American home. ... The home and its intrinsic influences are the very foundation of good citizenship, and any factor contributing to the establishment of homes and the fostering of home life doubtless tends to the enhancement, not only of community life, but of the life of the nation as a whole.(66)
The physical separation of work and home, through the segregationof homes into "exclusively residential" districts, wastherefore a desirable development in the law, because, in the words ofthe New York Court of Appeals, "[t]he primary purpose of such adistrict is safe, healthful, and comfortable family life rather than thedevelopment of commercial instincts and the pursuit of pecuniaryprofits."(67) The Wisconsin Supreme Court held that "[t]hehome seeker shuns a section of a city devoted to industrialism.... Acommon and natural instinct directs him to a section far removed fromcommerce, trade, and industry."(68) And the Maryland Supreme Courtobserved: "[H]owever it may be analyzed, there is a widespreaddislike of having business uses invade residential districts.... Thefact is that the conceptions of the people as to the comfortable anddesirable mode of living have been changing."(69)
II. ZONING RESTRICTIONS ON "HOME OCCUPATIONS" IN ANUTSHELL
The triumph of the ideology reflected in these opinions endures tothis day in the zoning laws that are a universal fact of life in theUnited States.(70) Although land use is perhaps the quintessential localresponsibility,(71) most zoning codes have, since their inception,organized land uses in a consistent way, predetermining the use of allprivate land by dividing a community into "zones" wheredifferent land uses are permitted.(72) As the literature on exclusionaryzoning vividly illustrates, the system of regulation that resultsestablishes a hierarchy of uses, at the pinnacle of which sitresidential zones, especially those reserved for single-familyhomes.(73) Zoning's highest purpose is, in a sense, to"purify" these zones by prohibiting "incompatible"uses of property within them.(74)
If zoning law aims to purge residential zones of incompatiblecommercial activities, what are local officials to do about theunavoidable fact that many people will, at least from time to time, workat home? This is an old question. Drafters of early zoning codes had tocontend with the fact that home occupations remained quite prevalentwell into the twentieth century. As a result, most early codes did notprohibit working from home altogether, but rather permitted either"accessory uses" of residential property,"customary" home occupations, or both.(75) Many modern codesstill contain these types of provisions.(76) Whether a given use of ahome is permitted under these exceptions to municipal zoning codes hasbeen the subject of a great deal of litigation, with courts tending toconstrue accessory use provisions quite narrowly.(77) The resolution ofthese disputes often turns on seemingly silly distinctions. For example,the New Hampshire Supreme Court held that a roofing contractor could notuse his residence as a business headquarters where he maintainedbusiness records and conducted business by mail and telephone.(78) TheMassachusetts Supreme Judicial Court, however, held that a homeownercould use the sunroom in his house to make telephone calls and pay billsrelated to his masonry business, in part because he did not maintain afiling cabinet in the sunroom.(79)
Perhaps in an effort to reduce the uncertainty caused by thesevague restrictions, most municipalities have enacted zoning restrictionsthat more specifically address home-based businesses.(80) Some citiessimply prohibit all home occupations in residential zones.(81) Zoningcodes in jurisdictions that do not prohibit all home occupations oftenlist permitted occupations, prohibited occupations, or both.(82) Manyallow "professionals" to ply their trade in residentialareas,(83) at least if the home office is not their primary one.(84)
In keeping with the idea that "commerce" does not belongin the home, codes that permit professionals to work in their homesusually prohibit nonprofessionals from doing so. Some codes accomplishthis expressly, by designating a usually noninclusive list of prohibitedoccupations.(85) Other codes simply prohibit all commercial homeoccupations.(86) Most often, however, a zoning ordinance that permitsprofessional home offices simply remains silent about otherincome-producing activities in residential zones.(87) In such cases,courts, applying the expressio unius, exclusio alterius principle,generally find that the approval of professional occupations implies thedisapproval, and hence exclusion, of other types of home businesses.(88)
Virtually all cities that permit some home-based enterprises,however, restrict their size and scope.(89) For example, zoning codescommonly restrict the physical configuration of a home business byplacing limitations on the space that a resident may devote to a homebusiness--usually 25% of the floor space or less,(90) requiring that thehome business be conducted solely within the confines of the home andnot in any exterior structure, including attached garages,(91) andprohibiting a resident from physically altering her home to accommodatethe business.(92) In addition, almost all codes strictly limit who canwork in home businesses. Most require the proprietor of the business toreside in the dwelling,(93) and prohibit her from hiring any employeesthat do not also reside there.(94) Zoning codes also regulate theinternal practices of home businesses by precluding client or customervisits,(95) thus, prohibiting all commercial transactions and/or salesof any product.(96) Many codes also make it illegal for a home businessto manufacture a product,(97) to maintain any inventory on thepremises,(98) or to use any "equipment" that is notcustomarily used for household purposes.(99) Finally, proprietors oftenare precluded from advertising their business through product displaysand/or signs visible from the street.(100)
III. WHY THE HOME-BUSINESS DILEMMA MATTERS
The casual observer of this situation might think, "Sowhat?" After all, the fact that zoning laws prohibit residents fromdoing something in their homes rarely leads to rallying cries forlegislative reform. Most zoning rules likely are perceived to be"shorthand of the unstated rules correct socialcategories."(101) For governing what are widely regarded asexample, zoning laws probably prohibit residents in most neighborhoodsfrom raising pigs or chickens, and the pages of modern law reviews arehardly filled with pleas for regulatory relief by swine and fowl lovers.Yet whatever the value of the majority of zoning classifications--andthey are perennially under attack--there are strong reasons to believethat zoning law's separation of the categories of "home"and "work" has outlived, or is rapidly outliving, itsusefulness. In the section that follows, therefore, I set forth fivearguments why the regulatory status quo should concern lawmakers.
A. The Elusive Quest for "Balance"
The first reason that lawmakers should reconsider current zoningrestrictions is that for many Americans, especially women with children,working at home offers the best (and in some cases the only) way tobalance the competing demands of work and family. Between 1960 and 1996,the percentage of married women who had children under age six and whoalso worked outside the home rose from 20.2% to 62.3%.(102) The stressplaced upon parents and children in this situation increasingly has ledto calls for more family-friendly policies at work, including part-time,flex-time, and job sharing.(103) While these policies offer someday-to-day relief, they have serious economic consequences.(104)Economist June O'Neill, among others, has long argued that thepersistence of a "wage gap" between men and women is at leastpartially attributable to the fact that women with children work fewerhours than men, often choose to move to lower paying jobs that offermore flexible schedules, are less willing to make extreme personalsacrifices for their employers, and are more likely to demand that theiremployers accommodate their personal lives, including the demands ofchild rearing.(105) O'Neill's hypothesis finds support in thefact that while American women as a whole continue to earn approximately75% of what men do, women ages twenty-seven to thirty-three who havenever had a child earn upwards of 98% as much as men with similareducation and work experiences.(106) Recent surveys of women suggestthat they will continue to make career choices that reinforce thistrend.(107)
Growing numbers of women have come to view working for themselvesas a reasonable and perhaps more lucrative alternative(108) to the"mommy track" jobs that many critics argue relegate women tosecond-class status in the workplace.(109) Women are starting businessesin record numbers.(110) Indeed, women-owned businesses are one of thefastest growing segments of the American economy,(111) totaling anestimated 8.5 million businesses contributing an estimated $3.1 trillionin revenue to the economy in 1997.(112) Many of these entrepreneurschoose to work from home: 67% of the nation's full-time home-basedworkers are women,(113) and over 60% of all women-owned businesses wereoperated at home when first established.(114) This arrangement, whilecertainly not stress-free,(115) does allow parents to spend more timewith their children.(116) It also reverses the two-century-old trend ofremoving productive activity from the home--an arrangement that somefeminists have long decried as placing women at a relative disadvantagesocially and economically.(117)
Dozens of books and Internet websites target these"mompreneurs,"(118) promising to provide tips aboutidentifying a lucrative market, starting a home business or locating atelecommuting job, and avoiding "home business scams."(119)However, many of the businesses recommended as "ideal" homeoccupations, as well as businesses in those industries dominated bywomen-owned firms and businesses that women have in fact chosen to startfrom home, are illegal in most of America. Data from the U.S. SmallBusiness Administration suggests that most women-owned home-based firmsproduce goods and services and are concentrated in industries such asconstruction, manufacturing, and wholesale/retail trade(120)--all thetypes of "commercial" enterprises banned under most zoninglaws.(121) Furthermore, the National Foundation for Home Business Ownersestimates that women-owned home-based businesses employ 14 millionpeople, arrangements that frequently run afoul of zoning codes.(122)
B. Bootstraps Entrepreneurs Need a Place to Earn a Living
The second reason that restrictions on home businesses have becomeproblematic is that working from home may enable people with limitededucation and job-related skills to achieve economic self-sufficiency.In 1996, Congress eliminated the sixty-year-old federal welfareentitlement and replaced it with the new program, Temporary Assistancefor Needy Families, which requires all recipients to secure employmentwithin two years and bars recipients from receiving benefits for longerthan five years.(123) While early results of the welfare reform efforthave exceeded expectations, many individuals struggle to make thetransition from welfare to work.(124) An economic downturn resulting innew rounds of layoffs could wreak havoc on individuals who only recentlyexited welfare rolls and may be barred forever from returning.(125) Thelow-skilled individuals who face welfare time limits and workrequirements are among the most vulnerable in the modern economy. Notonly will they likely lose under the "last-hired/first-firedprinciple," but also over the past forty years the "bluecollar" jobs that traditionally provided high wages for workerslacking formal education and training increasingly have been supplantedby jobs in service-oriented industries, where employers tend to requirespecialized skills and higher levels of education.(126)
Home businesses might offer a partial buffer against these economicrealities, leading some state legislatures to consider the option ofincreasing opportunities to work at home as an economic developmenttool.(127) The fact that welfare recipients lack the skills demanded bylarge, service-oriented employers does not necessarily mean that theylack marketable skills altogether. The success of"microenterprise" programs, which provide small loans thatenable low-income individuals to become entrepreneurs, suggests thatmany welfare recipients have skills that enable them to becomeentrepreneurs, thereby achieving self-sufficiency without depending uponan employer.(128)
Consider two examples. First, there is a dire need among the singlemothers who make up the bulk of welfare recipients(129) for quality,loving childcare.(130) Obviously, many thousands of welfare recipientshave the skills to provide this important service; women have longearned extra money by caring for a few children in their homes.(131)(Indeed, this is precisely the childcare arrangement that I have chosenfor my own daughter: a wonderful grandmother cares for her and threeother children in her own home.) Second, consider the muffin lady: LindaFisher, a single mother from Westminster, Maryland, drew nationalattention a few years ago when she was fined for selling fresh-bakedmuffins door-to-door in an effort to support herself and her son. Fisherlearned to her surprise that her business was illegal, but sheultimately was able to return to baking after the local volunteer firedepartment made its oven available to her.(132)
The success of women like Linda Fisher hinges on their having aplace to work. Unfortunately for many of the low-skilled individualsstruggling to exit welfare rolls, that place is home or nowhere. The"Muffin Lady" was lucky, but local fire departments can hardlyrescue all low-income mothers in need. For many, the inability to workat home dashes all hopes of becoming an entrepreneur. Leasing commercialspace costs money--a significant sum of money--and most recent welfarerecipients lack the resources (or the credit) to secure it. In contrast,however, the vast majority of home-based businesses require less than$5000 in start-up capital,(133) and most entrepreneurs, especially womenand minorities, do not rely upon bank loans to get these businesses offthe ground.(134) Furthermore, working from home enables former welfarerecipients to balance work and family responsibilities, a prospect that,if daunting to any parent, can be overwhelming for a young motherstruggling to achieve economic self-sufficiency.(135)
It is not surprising, therefore, that a majority of the enterprisesfunded by microenterprise programs are small, home-basedbusinesses.(136) Nor is it surprising that many of them apparently areforced to operate in the underground economy. Zoning codes are skewed infavor of high-end, white-collar occupations, limiting the privilege ofworking at home to "professionals" such as doctors, lawyers,and accountants.(137) While these prohibitions likely outlaw most homebusinesses,(138) the hostility to "commercial" enterprisessignificantly disadvantages lower-skilled workers, by precluding theoperation of businesses that may be the most attractive to them; indeed,a recent study of home-based businesses found that the vast majority ofwomen- and minority-owned home-based businesses produce goods andservices and work in industries that likely would be considered"commercial" rather than "professional."(139)
C. The Ban on Dot-coms
The third reason that local officials should confront the homebusiness dilemma is that zoning codes drafted before the mainframe areill-equipped to tackle the dot-com. The "technologicalrevolution" in general, and the Internet in particular, hasdramatically increased opportunities to work from home.(140)Telecommuting is rapidly becoming a mainstream employment arrangement,with estimates of the number of people engaged in some form of"distance work" generally ranging around 20 million.(141)Resources for those engaged in or seeking to engage in this employmentarrangement abound,(142) especially on the Internet,(143) suggestingthat millions more may take advantage of the option in the nearfuture.(144) Indeed, at least one telecommunications expert predictsthat the number of "teleworkers" will increase to 100 millionby 2015.(145)
While zoning laws certainly may impede some of these telecommutingarrangements,(146) their brunt is felt most directly by individuals whooperate home-based businesses. And, many of the "hottest"home-business opportunities are technology-based.(147) The U.S. SmallBusiness Administration estimates that 18% of all households withpersonal computers use them as part of a home-based business and that,by 2003, over 70% of all home businesses will be conducted online.(148)Despite the fact that most "virtual" businesses pose littlethreat to their neighbors,(149) many popular technology-based homebusinesses are swept under zoning laws' broad prohibitions. Notonly is it difficult to make the case that computer-based businesses are"customary" home occupations, the preference in many zoningcodes for professional rather than commercial occupations works to thedetriment of "techie" companies. Consider, for example, a fewof the businesses suggested in a popular book, 121 Internet BusinessesYou Can Start from Home: auto loan broker, bankruptcy consultant, onlinegenealogist, e-mail reminder service, online advertising agency, onlinedating service, collection agency, legal transcription service, billingservice, payroll preparation service, used computer broker, copywriter,desktop publisher, and (my favorite) virtual cemetery.(150) Few of thesecompanies would qualify as "professional" occupations, andmany would require the would-be entrepreneur to produce or sell goods orservices.(151)
D. Humanizing the Way We Live: New Urbanism and the Costs of Sprawl
The fourth reason to reevaluate the restrictions on home businessesis that encouraging people to work from home may help alleviate some ofthe negative consequences of American zoning laws. A growing number ofscholars, planners, and architects have come to conclude that zoninglaws mistakenly enshrine the "home" in a hermetically sealedunreality bubble. Building upon works of Jane Jacobs, especially TheDeath and Life of Great American Cities,(152) these "newurbanist" critics contend that we humans should be permitted tolive amidst the rough and tumble of the "real world"--and,indeed, that we would benefit from the experience of it.(153) The newurbanists contend that life in the exclusively residential zone isstultifying, and that it is stultifying precisely because it isexclusively residential. They champion "mixed-use"neighborhoods, where homes are situated within walking distance ofstores, restaurants, and parks.(154) Seizing upon Jacobs's insightthat American land use planning goes to far,(155) they argue that, whileit is one thing to segregate industrial smokestacks and meat-packingplants from residential neighborhoods, it is quite another to"zone" out the corner store, which enhances, rather thancorrupts, a neighborhood. It gives older children a place to buy candyand ice cream on lazy summer afternoons and harried moms and dads aplace to pick up a gallon of milk without having to drive miles to thenearest supermarket. But most of all, the corner store gives people aplace to go, on foot, within their own neighborhood, thus ensuring thatpeople will be outside, mingling amongst each other rather than sittingin their family rooms watching endless hours of television.(156) AsPhilip Langdon observes:
The tavern, the cafe, the coffee shop, the neighborhood store--these and other potential gathering places have been zoned out of residential areas. Few are the neighborhood places where people can go in hopes of striking up a conversation.... As informal gathering places have been banished, many opportunities for making friendships and pursuing common interests have disappeared.(157)
The new urbanists' "ideal" is the pre-World War IIsmall American city: a place with a "traditional" main streetand city center.(158) Their nightmare is the post-1950s suburb: theworld of strip malls and megastores, cul-de-sacs, and drive-thrurestaurants. It is therefore not surprising that, while the newurbanists advocate "mixing" residences and commercialenterprises, they do not spend much time championing home businesses.Home businesses will not transform "monoculture tract developmentsof cookie-cutter bunkers on half-acre lots in far-flungsuburbs"(159) into the tree-lined streets of quaint shops androwhouses that characterize places like Old Town Alexandria,Virginia.(160) To the contrary, amending zoning laws to authorize homebusinesses will simply permit people to work in the suburban tract homesthat the new urbanists deplore--there may be more dot-coms, but not morecorner stores.(161)
While legal reforms that permit home business might not affect theradical overhaul of American land use patterns advocated by the newurbanists, they could help cure some of the related ills that thesecritics identify. Consider, for example, the new urbanists'complaint about the social isolation of modern suburbia. The legalsegregation of commercial and residential uses of property contributesto this isolation not only by depriving residents of places to gatherwithin their neighborhoods, but also by virtually guaranteeing that theyrarely will be in their neighborhoods. Especially because of theintegration of women into the workforce, the physical separation of workand home means that many suburban neighborhoods are empty during theday. Moms and dads go to work; kids go to school or childcare centers.Permitting people to work at home would not only enable harried parentsto fulfill their family responsibilities,(162) but it also wouldguarantee that they were home during the day to meet one another.
Similarly, working at home could help alleviate the negativeexternalities of another ugly stepchild of American zoning laws, namely,suburban sprawl.(163) The serious quality-of-life consequences caused bythe current pattern of suburban development extend beyond the loss of"place" decried by new urbanists.(164) For example, althoughAmericans consistently indicate (both in public opinion surveys and bytheir residential choices) that they are willing to travel longdistances to work in order to live in suburban communities,(165) thelong commutes associated with the current sprawling patterns ofdevelopment contribute to suburbanites' social isolation.(166)Residents who must spend hours each week commuting to work arrive homefrom work too late and too exhausted to spend time with their families,let alone to socialize with neighbors.(167)
Furthermore, in sprawling suburban neighborhoods, the low densityof residential developments virtually eliminates the possibility ofmass-transit commuting.(168) As a result, most suburbanites drive towork.(169) And, they usually drive alone, which means--in this era ofdual-career couples--that many families have two cars on the road at thesame times each day.(170) The result is the terrible traffic congestionthat suburban residents consistently rank as their "most seriousenvironmental problem."(171) They are correct, and for more thanone reason. Traffic congestion not only eats up residents' preciousfree time(172) and increases their level of stress,(173) it is also themajor culprit when cities find themselves unable to attain federal CleanAir Act standards.(174)
Not surprisingly, therefore, officials at the federal and statelevel have begun to incorporate policies promoting work-at-homearrangements into efforts to reduce emissions and boost compliance withenvironmental laws.(175) Many of these measures encourage telecommuting,which is the work-at-home arrangement that perhaps is least affected byzoning laws.(176) Increasing the number of home-based businesses,however, holds even more promise of reducing automobile emissions: onaverage, telecommuters work only nine days per month at home,guaranteeing that many of them will be commuting to work most of thetime.(177) Almost by definition, on the other hand, individuals who ownhome-based businesses never have to commute to work.(178)
E. People Are Already Doing It
Finally, the fact that many people who wish to work at home simplyopen up shop despite the restrictions imposed by zoning codes may signalthat these rules have become outdated. Indeed, the rapid proliferationof home businesses should be taken, at the very least, as prima facieevidence that large numbers of people--perhaps millions of people--areoperating in derogation of legal prohibitions against working at home.Many of them undoubtedly either are ignorant of zoning rules thatrestrict their operations, or believe, probably correctly, that they canavoid detection by local zoning authorities if they circ*mscribe theiroperations.(179)
This course of action is not without its down sides, the main onebeing detection either by local officials or by tattle-tale neighborswho may initiate an enforcement action against a nonconformingbusiness.(180) While it is impossible to determine how frequently thegamble pays off, it is clear that municipal authorities do not alwaysturn a blind eye to illegal home businesses. Since 1990, a number ofreported cases have chronicled disputes between zoning authorities andhome entrepreneurs.(181) Although these cases obviously underrepresentthe number of actual enforcement actions taken against individuals whowork from home, they do highlight the significant risk associated withflouting the law.(182) Put simply, individuals who choose to work athome must face the prospect that they might be forced to close theirbusinesses on a moment's notice.(183) They also risk liability forcivil or criminal sanctions.(184)
This widespread defiance of zoning laws itself suggests that therules governing home businesses may be candidates for reform. Not onlyis the precarious situation of illegal home business suboptimal forthose acting in defiance of the law, but laws that force large numbersof people to operate in the underground economy can impede otherlegitimate fiscal(185) and regulatory(186) goals of the government. AsRichard Epstein has observed:
The underground economy is a challenge to the legal order by those who refuse to obey its commands. The simple but persistent question is: What alternative to the status quo should we consider? One path asks whether further coercion is required to make violators comply with the law. The other path asks whether it is best to relax the norms, so that activities now underground will rise to the surface and receive the protection of the law.(187)
If favorable press coverage on home businesses is any indication ofpopular sentiment, many people indeed take a "nudge-nudge,wink-wink"(188) approach to the issue, viewing illegal homebusinesses as "harmless" (to the extent that they have anyawareness of the laws restricting them). This sentiment suggests thatrelaxation of the rules, rather than increased enforcement, might be anappropriate course of action.
IV. A NOTE ON EXTERNALITIES AND NEIGHBORHOOD CHARACTER
Although all of these factors suggest that current zoning rules arenot well equipped to address the modern economic forces leading peopleto work from home, many residents--including perhaps many who wish towork from home--probably have some concerns about introducing largenumbers of home businesses into residential neighborhoods.
While home businesses could disrupt their neighbors' lives,there are a number of reasons to believe that their negativeexternalities could be kept to a minimum. For example, as ProfessorEllickson has argued, the externalities policed by zoning tend to be"localized" harms,(189) which could be addressed primarilythrough good manners. There is, of course, every reason to believe thatmost neighbors have good manners and would try to operate their homebusinesses in a responsible, neighborly manner. Still, it is hardlysurprising that zoning enforcement actions against individuals who workfrom home are most frequently initiated by a neighbor's complaintabout home-business externalities, such as customer visits that increasetraffic or delivery trucks that wake napping toddlers.(190)
Furthermore, zoning laws have long aimed to preserve an exclusivelydomestic sphere of human activity, freed from the "profanities ofwork and commerce."(191) As a result, "[d]rafters of zoningordinances are equally preoccupied with criteria that will maintain the[neighborhood's] `single-family character'..., a concernespecially mobilized by the zoning category of `home occupation,'for `home' and `work' are two distinct categories whose mixingrequires the utmost forethought, when not entirelyprohibited."(192) Less stringent regulations on working from homemay undermine this scheme: If officials give one home business the greenlight, it may operate completely unobtrusively. Neighbors may not evennotice its presence. If a city permits ten or twenty home businesses tooperate in close proximity to one another, however, neighbors willundoubtedly notice. Even if each home business carefully circ*mscribesits operations to minimize externalities, the combined impact of themany residents' decisions to bring commerce into their living roomsmay eventually erode the purely residential character of theneighborhood. Over time, it may become less of the pastoral"ideal" envisioned by the early proponents of zoning.
These concerns about negative externalities and neighborhoodcharacter may cause local legislators to pause before permitting thecategories of "home" and "work" to mix. The newurbanists' response to this skittishness about homebusinesses--that most exclusively residential suburban neighborhoods donot have a character worth preserving(193)--is both simplistic andelitist. The intellectuals who advocate "new urbanism" may notlike the American residential subdivision, but apparently many Americansdo.(194) Thus, to the extent that Americans' residential choicesare motivated by genuine preferences for the suburban lifestyle,abandoning a central tenet of zoning laws--the strict separation of workand home--may be unfair to current residents. After all, residents ofplanned and zoned suburban communities chose to live there, fully awarethat they were buying into an exclusively residential community andlikely believing that the neighborhood would stay that way.(195)Permitting home businesses may undermine homeowners' expectations.One can imagine resulting complaints like, "We bought this house sothat the kids could play kickball in the cul-de-sac. Now the traffickeeps them inside fighting over who is up next on Nintendo."
Furthermore, zoning law's exclusion of commercial enterprisesfrom residential neighborhoods has long been perceived as a cheap andefficient form of property-value insurance).(196) As the CaliforniaSupreme Court observed over seventy-five years ago when it upheld SanFrancisco's first zoning ordinance, "It is manifest that theintroduction of any form of business or industrial use into strictlyuniform home districts operates, in a measure at least, to lower thevalue and depreciate the desirability of surrounding property forresidential purposes."(197) If these presuppositions about zoninglaws are correct, local officials rightly would find cause for concernin any proposal to eliminate restrictions upon working at home. If thestrict segregation of "home" and "work" enshrined incurrent land use regulations preserves property values, its eliminationmight depress them, again undermining residents legitimate economicexpectations.(198)
These arguments have led some local officials to respond to thehome business dilemma by tightening--rather than relaxing--zoningrestrictions on home businesses.(199) Which path represents theappropriate response to the fact that increasing numbers of people areworking from home depends on the answer to at least two distinctquestions. First, how much would a more permissive zoning regime affectneighborhood character? While there is no question that zoning changeswill, at least in some cases, lead to changes in neighborhood character,the extent of the change depends in large part on how much currentzoning prohibitions deter people from working at home. If zoningprohibitions are keeping large numbers of law-abiding citizens fromworking at home, then liberalizing the zoning rules could have theeffect of opening the floodgates--freeing thousands (perhaps millions)of people to fulfill their most sincere desire to work at home--andleading to radical changes in neighborhood character. If, on the otherhand, most people who want to work at home already are doing so, thenliberalizing zoning laws will only permit existing illegal homebusinesses to rise out of the underground economy.
It is difficult to measure the deterrent effect of zoning rulesgoverning home business, but the demographic evidence discussed abovesuggests that it may not be overwhelming. The fact that millions ofpeople who already work from home are not being deterred by zoning rulessuggests that less restrictive ground rules may not result in a delugeof new home businesses. Of course, even if new rules will not lead tolarge numbers of new home businesses, legalizing existing homebusinesses may have some incremental effects on neighborhood character,especially because individuals who are operating in defiance of the lawlikely take care to circ*mscribe their operations. Detection by theauthorities carries a heavy price--civil and perhaps criminal penalties,not to mention the loss of a livelihood.(200) Thus, the effect of a morelenient zoning regime will likely be greater if the people who work fromhome intentionally are defying the law rather than simply ignorant ofit.
Finally, while it is impossible to know how many of the people whocurrently work from home are ignorant of, rather than intentionallydefying, zoning proscriptions--the available evidence is purelyanecdotal(201)--it is important to note that zoning laws are not theonly rules that guard neighborhood character against commercialintrusions. Increasing numbers of Americans live in neighborhoods whereland use restrictions are imposed not only by zoning laws, but also byprivate covenants subject to enforcement by residential neighborhoodassociations.(202) Covenants that preclude residents from working fromtheir homes are not at all unusual.(203) Changes in zoning laws will notalter the force of these restrictions, which may serve as a moreeffective deterrent than zoning laws, especially when enforced by anactive homeowner's association. To the extent that some residentsstrongly desire a "commercial free" neighborhood--asundoubtedly some will--these covenants offer a "private" checkon the legal reforms proposed in this Article.(204)
The second question relevant to the "neighborhoodcharacter" objection to my critique of current zoning restrictionson home businesses is this: How much do people care? Or, put moregently, how many Americans might be willing to trade a littleresidential tranquility for more regulatory flexibility? Again, theevidence on this question appears mixed. While many Americans apparentlyconsider a single-family home in an exclusively residential neighborhoodthe "ideal" place to live,(205) presumably the status quorepresents a less than ideal situation for the millions of people whoalready work from home. Furthermore, the available demographic evidencesuggests that more people may come to view working at home as anattractive alternative to traditional employment relationships in thenear future. As they do, more and more residents may come to view theexclusion of all commerce from residential zones as more of a detrimentthan a benefit. If this shift occurs (or if it has already occurred),the preservation of an exclusively residential neighborhood characterwill become less of a concern for local officials. Not only is itpossible that their constituents may come to view a "home-businessfriendly" neighborhood as superior to a pristine, commercial-freeone, but changes in zoning rules that permit more home businesses mayprove to pose little threat to property values. To the contrary, somepeople may be willing to pay more to live in a neighborhood where theyare able to work from home without threat of legal sanction.(206) Thus,the literature on "fiscal zoning" would predict that somemunicipalities may choose to adopt more lenient home business rules toattract home purchasers with these preferences.(207)
V. BALANCING THE GOOD AND BAD: RETHINKING THE RESTRICTIONS ON HOMEBUSINESS
The fact many Americans are choosing to work at home and that manymore will likely choose to do so in the future represents a remarkablereversal of the nearly two-century-old pattern of leaving the home to goto work. It also makes the regulatory status quo an uneasy one,suggesting that local officials will find it difficult to postponeconfronting the home business dilemma forever. When they do confront it,many will decide--for the reasons set forth above and a myriad ofothers--that zoning laws discouraging people from working at home simplydo not mesh with modern reality: they zone out dot corns, keep workingmoms away from their kids all day, impede the commendable efforts oflow-income individuals to earn an honest living, and contribute to thedegradation of the quality of our lives and of our environment.
Nonetheless, it is clear that liberalizing restrictions on homebusinesses is hardly a cost-free endeavor. Accounts in the popular presssuggest that zoning enforcement actions against home businessesgenerally have been triggered by disgruntled neighbors'complaints(208) and that efforts to liberalize restrictions onhome-based businesses have generated opposition.(209) In both cases,residents express concern that the right to work at home can lead tosignificant disruptions in their daily lives, and, as discussed above,the steady erosion of neighborhood character. These are reasonableconcerns that local officials certainly should take into account whenconsidering any reforms to the current zoning rules. But, they also makelocal legislators' jobs difficult. Assuming that they determinethat the current rules are not working, instead of deciding that theyshould be more strictly enforced, these officials face the daunting taskof crafting a home-business friendly zoning regime that also addressesresidents' reasonable concerns about how home businesses may affecttheir lives and their neighborhoods.
How they should approach that task depends, in large part, on howone perceives the nature of the problem. One view might be that thecurrent zoning restrictions basically represent a reasonable response toresidents' legitimate concerns about home businesses. In this view,the zoning rules restricting home businesses simply are aninstitutionalized version of the "better safe than sorry"principle: they prohibit most home businesses in order to prevent anoccasional "bad egg" from seriously disrupting her neighborsby working from home.(210) Thus, while the rules may impose high"prevention costs"(211) that seriously disadvantage themillions of people who want or need to work at home and who would do soin a completely responsible manner, the common proscriptions--such asthe preference for professional occupations over commercial enterprises,the prohibitions on hiring employees, selling and producing goods andservices, and operating equipment--simply exclude those businesses thatpose the greatest threat of generating negative externalities. Anyproblem, in other words, is not with the system, but only with itsdetails. Unpredicted changes in the economy might lead modernlegislatures to make slightly different ex ante calculations about whichtypes of home businesses should be permitted than those made twenty orfifty years ago.(212) But the rules need only minor tinkering at theedges--expanding the category of permitted home occupations slightly by,for example, permitting computer-based businesses and remote sales.(213)
The difficulty with this "quick-fix" solution is that itdoes little to address the true root of the problem. The home-businessdilemma arises not simply because zoning laws regulate home businessesin the wrong ways; it also arises because they regulate them for thewrong reasons. While the need to prevent nuisances has long been citedas a justification for zoning rules(214) (and zoning does serve thatfunction), the zoning restrictions on home businesses, like all zoningrules, are not designed solely to prevent externalities. While this ishardly a novel observation,(215) the home-business dilemma vividlyillustrates the fact that these rules are also about putting"everything in its place."(216) Zoning designates that we areto reside in residential zones and work in commercial ones. The rulesthat prevent the mixing of the two activities--working and residing--donot reflect merely an overcautious calculation that the former maydisrupt the latter (although it certainly might). They also embody adecision that the two activities are, by nature, incompatible; they donot belong together. Thus, zoning codes prefer professional occupationsto commercial ones not simply because professionals are less likely togenerate negative externalities--there is, for example, no reason tobelieve that a pediatrician's office will generate less trafficthan an insurance agent's--but also because commerce corruptsresidential neighborhoods. Similarly, zoning codes prohibit homebusinesses from hiring employees and from producing or selling goods notsimply to keep traffic flow to a minimum, but because residentialneighborhoods are not the places where people should work, or whereproducts should be manufactured and sold.
Their actions alone demonstrate that millions of Americans are, forreasons of convenience or necessity, coming to reject the ideologybehind zoning rules segregating work and home namely--the belief thatcommerce is a corrupting influence on a wholesome home life. And,technological advances rapidly are undermining the nuisance-preventionjustification for these rules as well. We are coming to believe thatsometimes home and work should mix, that the strict segregation of thetwo "spheres" of human existence was either a mistake in thefirst instance or has outlived its usefulness. I do not mean to suggest,as the new urbanists might argue, that residential zones are themselvesa bad idea. They may be, but as I have pointed out, many Americansapparently want to live in the types of neighborhoods that they createand preserve. My intent here is not to propose a radical restructuringof American land use law,(217) but only to suggest that the time hascome for local legislators to consider redirecting one tiny piece tomake the solution fit the problem: If disruptions caused by homebusinesses, rather than their existence per se, worry residents--andconcerns raised in public debates indicate that this is the case--thenthe legal rules should not target the businesses themselves, but rathertheir potential for generating negative externalities. In other words,the ground rules should permit people to work at home so long as they donot unduly disrupt their neighbors by doing so.
Unfortunately, most of the communities that have tackled the issuethus far have not taken this approach. Most have attempted, as outlinedabove, to expand the category of permitted home businesses to includethose least likely to generate externalities.(218) This possibility isthe least radical option, and one that may prove the only politicallyfeasible alternative in some communities. But, such amendments willlikely prove cosmetic. Local officials, faced with the daunting task ofdrawing bright lines between "good" and bad" homebusinesses will be forced to continue relying upon certain "dangersigns"--that a business accepts customer visits, employs outsideindividuals, or produces or sells a product--to predict which types ofbusinesses might disrupt a neighborhood.(219) Some businesses that areprohibited under current law--for example, computer-oriented businessesthat are"commercial" in nature--might be permitted. But theexperience of a few jurisdictions that have addressed the home-businessdilemma in this way illustrates that, for the most part, the new ruleswill look much like the current ones: blunt, inflexible, and unyieldingto individual circ*mstances or variations among neighborhoods. Moreover,because of the economic and social factors discussed above, the cost ofusing inflexible zoning prohibitions to prevent the possibility ofexternalities generated by home businesses have become increasinglyhigh.(220)
Finding a way to address residents' legitimate concerns aboutexternalities without resorting to fixed categories of "good"and "bad" home businesses is, of course, no small task. Onepossibility would be to expand the use of special exceptions(221) orvariances(222) to enable officials to evaluate the potential impact ofthe proposed home businesses ex ante and to grant regulatory flexibilityin appropriate cases.(223) The experience of the handful ofjurisdictions that have adopted this approach suggests that an expandeduse of these preapproval processes permits a city to authorize a broadercategory of home businesses to operate than traditional zoning lawrecognizes. In Montgomery County, Maryland, for example,"major" home businesses must secure a special exceptionauthorizing them to operate, and smaller home businesses are permittedto operate as a matter of right.(224) Another variation on this themewould be to replace the current restrictions on home businesses withprovisions requiring preapproval for "accessory uses" ofresidential property, and then require individuals seeking authorizationto work from home to "make their case" for a variance orspecial exception authorizing them to do so.(225) In crafting thispreapproval process, legislators might draw upon the idea of"performance zoning," setting forth standards that theresident must satisfy in order to secure permission to work from home:Perhaps she would have to present evidence that the proposed businesscould be operated without disrupting her neighbors, that the residentialuse of the property would remain the primary one, or that the businesswould not visibly alter the residential character of herneighborhood.(226)
Finally, some jurisdictions may choose to turn zoning prohibitionson their heads--to give residents the right to work from home, butpenalize those who abuse the privilege of doing so. This alternativewould require the development of an effective mechanism to policeexternalities as they arise, perhaps a quasi-nuisance-type adjudicatoryprocess to consider neighbors' complaints about homebusinesses.(227) In theory, the boards of zoning appeals, which arealready in the business of making case-by-case determinations about theappropriateness of land uses, could perform this policing function.Instead of authorizing ex ante departures from zoning prohibitions, theboards could adjudicate complaints that the activities of a homebusiness permitted by the zoning code have become overly disruptive toneighborhood life and sanction the offending resident for abusing theprivilege of working from home. While this alternative represents themost radical departure from existing zoning practice,(228) it eliminatesthe uncertainty and likelihood of administrative error inherent in anysystem of ex ante regulatory review(229) and has the added benefit oftrusting residents to operate their businesses in a responsible,neighborly manner, which most undoubtedly would do.
CONCLUSION
Regardless of how local governments address the home-businessdilemma, the evidence suggests that the path of least resistance thusfar--doing nothing--will soon become an untenable one. In this Article,I have argued in favor of welcoming home businesses into residentialneighborhoods. Local governments should undertake an honest reevaluationof the zoning rules restricting home-based businesses, rules that arebased in part on a nearly 200-year-old presumption that "work"does not belong at "home." Although there are good reasons tobe concerned about introducing commerce into residential neighborhoods,the rules that govern its introduction should endeavor to maximize theopportunities to work from home, while addressing residents'legitimate concerns about externalities that home businesses may create.
(1.) The South Bend Zoning Code permits "customary homeoccupations" in residential zones, a term that is defined toinclude "author." While I assume that an author of law reviewarticles qualifies, I might run into trouble if a zealous zoningenforcement official believed that (1) an assistant professor of law isnot a "customary" home occupation; (2) my personal computer isnot "electronic or mechanical equipment ... customarily associatedwith domestic use"; or (3) my research assistant is my employee.SOUTH BEND, IND., MUNICIPAL CODE [sections] 21-8(a)(6) (2000), availableat http://www.municode.com/CGI-BIN/om_isapi.dll?infobase=11304.NFO&softpage=Browse_Frame_pg42.
(2.) See NANCY F. COTT, THE BONDS OF WOMANHOOD: "WOMAN'SSPHERE" IN NEW ENGLAND, 1780-1835, at 24 (2d ed. 1997) (noting thatpreindustrial economy consisted of subsistence farms and homeindustries); DOLORES HAYDEN, THE GRAND DOMESTIC REVOLUTION: A HISTORY OFFEMINIST DESIGNS FOR AMERICAN HOMES, NEIGHBORHOODS, AND CITIES 12-13(1981) (noting that the vast majority of people in preindustrial Americalived and worked on small subsistence farms).
(3.) See COTT, supra note 2, at 24 (noting that prior to 1835,American economy was "household production" based); KENNETH T.JACKSON, CRABGRASS FRONTIER: THE SUBURBANIZATION OF THE UNITED STATES 47(1985) (noting that, in the preindustrial world, "[e]ach householdwas a business").
(4.) See, e.g., COTT, supra note 2, at 63-74 (describing connectionbetween Industrial Revolution and rise of "separate spheres"ideology); Francis E. Olsen, The Family and the Market: A Study ofIdeology and Legal Reform, 96 HARV. L. REV. 1497, 1498-1501 (1983)(same).
(5.) See infra notes 102-22 and accompanying text.
(6.) See infra notes 123-39 and accompanying text.
(7.) See infra notes 140-51 and accompanying text.
(8.) See Linda N. Edwards & Elizabeth Field-Hendrey, Home-basedWorkers: Data from the 1990 Census of Population, MONTHLY LAB. REV.,Nov. 1996, at 26, 27.
(9.) See Lucie Young, Home Office Guide: Home Is Where the HardWork Is, N.Y. TIMES, Sept. 29, 1994, at C1 (describing Link Associatessurvey). Link Associates estimated that the number of people workingfrom home would increase to 57 million by 1997. See/d. A more recentstudy, conducted for the U.S. Small Business Administration, estimatedthat 9 million of the 17.3 million small businesses that filed aSchedule C, partnership, or S corporation tax return in 1992, were homebased, and that the number of home-based businesses had increased to10-12 million by 1999. See JOANNE H. PRATT, HOMEBASED BUSINESS: THEHIDDEN ECONOMY ES-i, 4 (1999). This number underestimates the numberpeople who work for such enterprises, both because many home-basedbusinesses hire employees, see id. at 11, and because estimates basedupon tax returns do not include businesses that fail to file taxreturns. See, e.g., Morton Paglin, The Underground Economy: NewEstimates from Household Income and Expenditure Surveys, 103 YALE L.J.2239, 2241 (1994).
(10.) See American Association of Home-Based Businesses Home Page,at http://www.aahbb.org (last visited Oct. 19, 2000).
(11.) See Jonathan Marshall, Pac Bell Scrambles To Hire Workers,S.F. CHRON., Jan. 11, 1997, at D1, available in 1997 WL 6689507;Jonathan Marshall, Pac Bell Will Spend $2.2 Billion To Meet Huge Demandfor Lines, S.F. CHRON., Apr. 16, 1998, at D1, available in 1998 WL3911606; Greg Miller, Typing Up the Phone Companies, L.A. TIMES, Jan.21, 1997, at A1. Several of the regional"Baby Bell" telephonecompanies provide services targeted specifically for home offices andhome businesses. See Pacific Bell, Work at Home, athttp://www.pacbell.com/Products_Services/WorkAtHome 10,1217,1,00.html(last visited Oct. 19, 2000); US West, Small Business, Home OfficeSolutions, at http://www.uswest.com]smallbusiness/products/homeoffice(last visited Oct. 19, 2000); Verizon Small Business Home Page, athttp://www.bellatlantic.com/smallbiz (last visited Oct. 19, 2000).
(12.) See, e.g., @Home 2000 is Here, at http://[emailprotected](last visited Oct. 19, 2000); Galvins Business and Home OfficeFurniture, at http://www.galvins.com (last visited Oct. 19, 2000); HomeOffice Direct, at http://www.homeofficedirect.com (last visited Oct. 19,2000); Home Office Furniture & Products, athttp://www.homefurnish.com/homeoffc.htm (last visited Oct. 19, 2000);Home Office Store Welcome Page, at http://www.thehomeofficestore.com(last visited Oct. 19, 2000); Index to Home Office Mall, athttp://www.the-office.com/page_b.htm (last visited Oct. 19, 2000).
(13.) See, e.g., Cheryl Currid, Whether Corporate or Solo,Home-Office Numbers Rising, HOUS. CHRON., Sept. 17, 1999, at 3,available in 1999 WL 24253904; Bryan Meyer, SOHO. Bound, SmallOffice/Home Office Trend Earning Respect, CHI. TRIB., Dec. 5, 1999, atC3, available in 1999 WL 2938715; Diane Stafford, When It Comes toOffices ... There's No Place Like Home, KAN. CITY STAR, May 17,1997, at B1, available in 1997 WL 3013794 (discussinghome-business-support industries); Jeffrey Steele, It's Workable;Add a Home Office While Saving Your Nest Egg, CHI. TRIB., May 16, 2000,at C1, available in 2000 WL 3665624.
(14.) See, e.g., LYNIE ARDEN, THE WORK-AT-HOME SOURCEBOOK (6th ed.1996); JANET ATTARD, THE HOME OFFICE AND SMALL BUSINESS ANSWER BOOK(1993); JEFF BERNER, THE JOY OF WORKING FROM HOME: MAKING A LIFE WHILEMAKING A LIVING (1994); BARBARA BRABEC, HOMEMADE MONEY: HOW TO SELECT,START, MANAGE, MARKET AND MULTIPLY THE PROFITS OF A BUSINESS AT HOME(5th ed. 1997); ALICE BREDIN, THE VIRTUAL OFFICE SURVIVAL HANDBOOK: WHATTELECOMMUTERS AND ENTREPRENEURS NEED TO SUCCEED IN TODAY'SNONTRADITIONAL WORKPLACE (1996); KAREN CHENEY & LESLIE ALDERMAN, HOWTO START A SUCCESSFUL HOME BUSINESS (1997); PATRICK COCHRANE, THEKITCHEN TABLE MILLIONAIRE: HOME-BASED MONEY-MAKING STRATEGIES TO BUILDFINANCIAL INDEPENDENCE TODAY (1997); PAUL EDWARDS & SARAH EDWARDS,MAKING MONEY WITH YOUR COMPUTER AT HOME (1993) [hereinafter EDWARDS& EDWARDS, MAKING MONEY]; PAUL EDWARDS & SARAH EDWARDS, THE BESTHOME BUSINESSES FOR THE 21ST CENTURY: THE INSIDE INFORMATION YOU NEED TOKNOW TO SELECTA HOME-BASED BUSINESS THAT'S RIGHT FOR YOU (3d ed.1999); PAUL EDWARDS & SARAH EDWARDS, WORKING FROM HOME: EVERYTHINGYOU NEED TO KNOW ABOUT LIVING AND WORKING UNDER THE SAME ROOF (1994)[hereinafter EDWARDS & EDWARDS, WORKING FROM HOME]; GWEN ELLIS, 101WAYS TO MAKE MONEY AT HOME (1996); DAVID R. EYLER, THE HOME BUSINESSBIBLE: EVERYTHING YOU NEED TO KNOW TO START AND RUN YOUR SUCCESSFULHOME-BASED BUSINESS (1994); LIZ FOLGER, THE STAY-AT-HOME MOM'SGUIDE TO MAKING MONEY: HOW TO CREATE THE BUSINESS THAT'S RIGHT FORYOU USING THE SKILLS AND INTERESTS YOU ALREADY HAVE (1997); KIM T.GORDON, BRINGING HOME THE BUSINESS: THE 30 TRUTHS EVERY HOME BUSINESSOWNER MUST KNOW (2000); LISA KANAREK, 101 HOME OFFICE SUCCESS SECRETS(1994); MICHAEL LEBOEUF, THE PERFECT BUSINESS: HOW TO MAKE A MILLIONFROM HOME WITH NO PAYROLL, NO EMPLOYEE HEADACHES, NO DEBTS, AND NOSLEEPLESS NIGHTS! (1997); ELLEN H. PARLAPIANO & PATRICIA COBE,MOMPRENEURS: A MOTHER'S PRACTICAL STEP-BY-STEP GUIDE TOWORK-AT-HOME SUCCESS (1996); CAMERON PARTOW & DONNA PARTOW, HOW TOWORK WITH THE ONE YOU LOVE AND LIVE TO TELL ABOUT IT (1995); LISA M.ROBERTS, HOW TO RAISE A FAMILY & A CAREER UNDER ONE ROOF: APARENT'S GUIDE TO HOME BUSINESS (1997); DEBRA SCHEPP & BRADSCHEPP, THE TELECOMMUTER'S HANDBOOK: HOW TO EARN A LIVING WITHOUTGOING TO THE OFFICE (2d ed. 1995); BARBARA WELTMAN, THE COMPLETEIDIOT'S GUIDE TO STARTING A HOME-BASED BUSINESS (2000).
(15.) See, e.g., BIZTALK; HOME BUSINESS JOURNAL; HOME BUSINESSMAGAZINE; HOME OFFICE COMPUTING; INCOME OPPORTUNITIES; WEALTH BUILDING;WORKING AT HOME MAGAZINE; Business at Home, athttp://www.gohome.com/content_index.html (last visited Oct. 19, 2000);Home Office Association of America, at http://www.hoaa.com/main.htm(last visited Oct. 19, 2000); Homeworking Jobs, HomeworkingOpportunities, Homeworking Information, at http://www.homeworking.com(last visited Oct. 19, 2000); Independent Homeworkers Alliance, athttp://www.homeworkers.org/DefaultA.htm (last visited Oct. 19, 2000);ITAC International Telework Association and Council, athttp://www.telecommute.org/body.html (last visited Oct. 19, 2000);OutSource 2000, at http://www.outsource2000.org/index2.php3?id908596093(last visited Oct. 19, 2000); Small Office Home Office Knowledge Center,at http://www.so-ho.org (last visited Oct. 19, 2000).
(16.) See 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 191(Phillips Bradley ed., 1945) ("In no country in the world has theprinciple of association been more successfully used or applied to agreater multitude of objects than in America.").
(17.) See Jeffery D. Zbar, Back Porch Network; Associations HelpHome-Based Workers Learn and Build Their Businesses, FT. LAUDERDALESUN-SENTINEL, May 19, 1997, [sections] 1, at 3, available in 1997 WL3104499; see also supra note 10; Home Office Association of America, athttp://www.hoaa.com/main.htm (last visited Oct. 19, 2000); Welcome toHome Business Works, at http://www.homebusinessworks.com (last visitedOct. 19, 2000).
(18.) See ROBERT M. ANDERSON & KENNETH H. YOUNG,ANDERSON'S AMERICAN LAW OF ZONING [subsections] 13.01-.26 (4th ed.1996). Zoning rules are not the only legal barriers faced by homebusinesses. See, e.g., International Ladies' Garment Workers'Union v. Dole, 729 F. Supp. 877 (1989) (concerning application of FairLabor Standards Act to home-based piecework knitters); Katharine N.Rosenberry, Home Businesses, Llamas and Aluminum Siding: Trends inCovenant Enforcement, 31 J. MARSHALL L. REV. 443 (1998) (discussingenforcement of restrictive covenants against home businesses); Brenda A.Ray, Note, Home Office Deduction in Need of Repair: Applying Mixed-UseAllocation Theory to Internal Revenue Code Section 280A(c), 60 OHIO ST.L.J. 199 (1999) (arguing that federal tax rules disadvantage homebusinesses); Frank Swoboda, OSHA Exempts Home Offices; Firms Liable OnlyOn Industrial Jobs, WASH. POST, Jan. 27, 2000, at A1 (discussingOSHA's decision to withdraw the above regulation); JonathanYardley, Big Brother Makes a House Call, WASH. POST, Jan. 10, 2000, atC2 (discussing application of OSHA regulations to work-at-homeconditions).
(19.) See, e.g., Kathryn Balint, She's Right at Home and Onthe Job; Telecommuter Loves the Comfort, the Convenience, and the10-second Commute, SAN DIEGO UNION-TRIB., May 9, 2000, at 6, availablein 2000 WL 13963778; Maryanne Murray Buechner, Superconnected; In theFast-Moving Digital Economy, Networks Matter More than Ever, forComputers and People. Here's How to Turn Your Home into anElectronic Nerve Center and Keep Job-Seeking Skills Honed, TIME, Mar.22, 1999, at 114A, available in LEXIS, News Library, Time File; ChrisCobbs, Home Work Lessons: As Technology Soars and Many People Flee fromDowntown Areas, Telecommuting Becomes a More Common Aspect of Work Life,ORLANDO SENTINEL, July 9, 2000, at G1, available in 2000 WL 3612810;Dave Gussow, When Home Becomes Office, ST. PETERSBURG TIMES, Mar. 20,2000, at 10E, available in LEXIS, News Library, St. Petersburg TimesFile; Dave Johnson, Sent Home to Success, HOME OFFICE COMPUTING, June2000, at 50, available at http://www.findarticles.com/cf_1/m1563/b_18/63636591/print.jhtml; Carri Karuhn, Making At-Home Businesses Work;Entrepreneurs Encounter Obstacles, Encouragements from CommunityOfficials, CHI. TRIB., June 10, 1998, at Metro 1, available in 1998 WL2865124; Nancy Kelleher, Punch the Clock; Feed the Kids; Stay-at-HomeWorkers Set Own Schedules, BOSTON HERALD, Apr. 4, 1999, at 055,available in 1999 WL 3394515; Maria Mallory, Balancing Business andBaby; More Women are Embracing Work at Home Instead of Choosing BetweenKids and Careers, ATLANTA J.CONST., June 25, 2000, at RI, available in2000 WL 5463439; Wilma Randle, Under One Roof The Ranks of Those WhoCombine Home and Business Are Still Growing, CHI. TRIB., July 27, 1997,at 5M, available in 1997 WL 3572081; Young, supra note 9, at C1.
(20.) See ROBERT FISHMAN, BOURGEOIS UTOPIAS: THE RISE AND FALL OFSUBURBIA 4 (1987) (noting that suburban ideal is based in part on theexclusion of work from the home); see also CONSTANCE PERIN, EVERYTHINGIN ITS PLACE: SOCIAL ORDER AND LAND USE IN AMERICA 116 (1977)(discussing the importance of the "distinction between socialreproduction (the family) and industrial production (the firm)" inAmerican land use law); infra notes 49-69 and accompanying text(discussing private sphere ideology).
(21.) Apparently, treatment of the issue has, thus far, beenconcentrated in the popular and trade press. See, e.g., Julie Bennett,Home Bodies, PLANNING, May 1, 1999, at 10.
(22.) See, e.g., Thomas v. City of Phoenix, 828 P.2d 1210 (Ariz.Ct. App. 1991) (concerning city citation for operating a cake-decoratingbusiness from their home); Bach v. County of Butte, 263 Cal. Rptr. 565(Ct. App. 1989) (concerning appeal from order enjoining defendant fromoperating home business); Conetta v. Zoning Bd., No. CV 940136409,1995Conn. Super. LEXIS 121, at *1 (Conn. Super. Ct. Jan. 12, 1995)(concerning city's finding that home-plumbing business violatedzoning law), rev'd, 677 A.2d 987 (Conn. App. Ct. 1996); Gilmore v.County of DuPage, 567 N.E.2d 1111, 1112 (Ill. App. Ct. 1991) (enjoiningdefendant from operating a chiropractor's office); City of Wapellov. Chaplin, 507 N.W.2d 187 (Iowa Ct. App. 1993) (enjoining defendantsfrom operating towing service); City of New Orleans v. Miller, 612 So.2d 222 (La. Ct. App. 1992) (concerning injunction sought by city barringartist from using an automatic air compressor in home studio),rev'd, 614 So. 2d 1248 (La. 1993); Levinson v. Montgomery County,620 A.2d 961 (Md. 1993) (upholding order against opthamologist to ceaseoperating optical dispensary in basem*nt of home); St. Louis v. Kienzle,844 S.W.2d 118 (Mo. Ct. App. 1992) (enjoining insurance agent fromworking out of home); Doersam v. City of Gahanna, No. 96APF12-1766, 1997Ohio App. LEXIS 4468 (Ohio Ct. App. Sept. 30, 1997) (concerningsituation where water department official discovered resident wasselling insurance out of his home); Cozzens v. Banky, No. 90-G-1568,1991 Ohio App. LEXIS 2676 (Ohio Ct. App. June 7, 1991) (concerningappeal from order enjoining defendants from operating roofing businessfrom their home); City of Avon v. Samanich, No. C.A. No. 95CA006042,1995 Ohio App. LEXIS 3455, at *1 (Ohio Ct. App. Aug. 23, 1995)(enjoining defendant's preschool).
(23.) See, e.g., Sarah Cooke, Town Seeks Limits on Rummage Sales,MILWAUKEE J.-SENT., Feb. 21, 1999, at 5, available in 1999 WL 7662213(noting 14 home business zoning violations reported in Richfield in1998); Roger Croteau, San Marcos' KIND Marks First Anniversary, SANANTONIO EXPRESS-NEWS, Mar. 26, 1998, at 1B, available in 1998 WI,5085109 (reporting that city tried to shut down radio station as illegalhome business); Dan Danbom, The REAL Home Office OK, You Try Working inSweats--Unshaven, Unshowered, DENVER POST, Feb. 2, 1997, at H17,available in 1997 WL 6063984 (mentioning zoning restrictions on homebusiness); David Harpster, County Cuts Rules on Home Business, SAN DIEGOUNION-TRIB., July 18, 1996, at B3, available in 1996 WL 2170360(reporting citation of CPA by code enforcement officer for employing apart-time clerk at her house); Courtney Price, Zoning Rules Keep HomeBusinesses on Straight Path, ROCKY MTN. NEWS, Aug. 5, 1996, at 2B,available in 1996 WL 7582773 (stating that zoning enforcement iscomplaint driven).
(24.) See, e.g., Liz Atwood, Planners Move to Update Home BusinessLaw; Rules Seek to Balance Work, Community Needs, BALT. SUN, Feb. 20,1998, at 3B, available in 1998 WL 4952834; Damon Cline, Work at HomeSimplified, AUGUSTA CHRON., May 1, 1998, at 028, available in 1998 WL27119673; Tim Evans, Some Home Businesses Get All Clear; The SmallestNeed No Permits, But Larger Ones Will Face Regulation to ProtectNeighborhoods, INDIANAPOLIS STAR, Aug. 19, 1998, at W3, available inLEXIS, News Library, Indianapolis Star File; James Flanigan, The NextMayor Will Need to Capitalize on Ideas, L.A. TIMES, Apr. 25, 1993, atD1; David Harpster, County Cuts Rules on Home Business, SAN DIEGOUNION-TRIB., July 18, 1996, at B3, available in 1996 WL 2170360; HugoMartin, City Council Backs Home Businesses; L.A. TIMES, July 11, 1996,at B1; Bob Merruifield, Zoning Law Now Covers Businesses in Homes, CHI.TRIB., Mar. 19, 1999, at Metro 2, available in 1998 WL 2855036; Rulesfor Business In Homes Ok'd, CHAPEL HILL HERALD, Nov. 28, 1996, at2, available in LEXIS, News Library, News Group File; Jacqueline Seibel,Richfield Board Updates Home-Business Regulations, MILWAUKEE J.-SENT.,Aug. 27, 1998, at Neighbors 2, available in 1998 WL 14031698.
(25.) Much has been said about zoning law over the years. For a fewof the many dozens of books written on the subject, see, for example,RICHARD F. BABco*ck, THE ZONING GAME: MUNICIPAL PRACTICES AND POLICIES(1966); RICHARD F. BABco*ck & CHARLES L. SIEMON, THE ZONING GAMEREVISITED (1985); WILLIAM A. FISCHEL, THE ECONOMICS OF ZONING LAWS: APROPERTY RIGHTS APPROACH TO AMERICAN LAND USE CONTROLS (1985); MARTIN A.GARRETT, JR., LAND USE REGULATION: THE IMPACTS OF ALTERNATIVE LAND USERIGHTS (1987); DANIEL R. MANDELKER, THE ZONING DILEMMA: A LEGAL STRATEGYFOR URBAN CHANGE (1971); RUTHERFORD H. PLATT, LAND USE AND SOCIETY:GEOGRAPHY, LAW AND PUBLIC POLICY(1996); ZONING AND THE AMERICAN DREAM:PROMISES STILL TO KEEP (Charles M. Haar & Jerold S. Kayden eds.,1989). Indeed, so much has been said about zoning that there is acertain danger in attempting to enter the fray, even to write about anisolated issue such as its regulation of home businesses. One could notpossibly begin to give credit to everyone who has contributed insight tothe rich scholarly literature on zoning that may be relevant to mynarrow topic. See Joel Kosman, Toward an Inclusionary Jurisprudence: AReconceptualization of Zoning, 43 CATH. U. L. REV. 59, 60 (1993)("Writing about zoning in the 1990s, then, raises the question ofwhat a person can productively add to the topic."). With humility,therefore, I include a disclaimer: Although much of what I say in thisArticle may have implications beyond the narrow issue that I intend toaddress, it is not my intention to set forth a grand theory of land useregulation, but only to discuss how a tiny part of it might be amendedto better accommodate the modern economic and social realities that leadpeople to work from home.
(26.) See infra notes 181-89 and accompanying text.
(27.) See infra notes 142-53 and accompanying text.
(28.) See infra notes 105-24 and accompanying text.
(29.) See infra notes 125-41 and accompanying text.
(30.) See infra notes 154-80 and accompanying text.
(31.) See, e.g., S.J. MAKIELSKI, JR., THE POLITICS OF ZONING: THENEW YORK EXPERIENCE (1966) (analyzing zoning in New York City from 1916to 1960); SEYMOUR I. TOLL, ZONED AMERICAN (1969) (detailing the historyof zoning in America).
(32.) See, e.g., PLATT, supra note 25, at 215 ("Although itoriginated in Germany in the late 19th century, zoning is aquintessentially American institution with the blend of idealism andgreed which that implies.").
(33.) See supra note 20 and accompanying text.
(34.) JACKSON, supra note 3, at 47.
(35.) See, e.g., id.
(36.) See, e.g., DOLORES HAYDEN, REDESIGNING THE AMERICAN DREAM:THE FUTURE OF HOUSING, WORK AND FAMILY LIFE 67-74 (1984) (discussing therole of women in the isolated domestic sphere through various feministstrategies); WALTER E. HOUGHTON, THE VICTORIAN FRAME OF MIND, 1830-1870,at 341-48 (1957) (discussing the home and family as the center ofVictorian life); JACKSON, supra note 3, at 48-49 (describing theVictorian idealization of the home as the bastion of virtue andwomen's duty to maintain it); GWENDOLYN WRIGHT, BUILDING THE DREAM:A SOCIAL HISTORY OF HOUSING IN AMERICA 76-79 (1981) (noting that"the woman was responsible for perfecting an alternative to thecommercial world where her husband and sons had to work' anddescribing the characteristics of the ideal home); Kirk Jeffrey, TheFamily as Utopian Retreat from the City: The Nineteenth-CenturyContribution, SOUNDINGS, Spring 1972, at 21, 22-39 (discussing thecultural foundations behind the middle-class's idealization of thefamily as retreat from urbanization); Olsen, supra note 4 (discussingthe dichotomy between market and family as limiting the effectiveness ofequal treatment reform); Reva B. Siegel, Home as Work: The FirstWomen's Rights Claims Concerning Wives' Household Labor,1850-1880, 103 YALE L.J. 1073, 1092-94 (1994) (recognizing thedevelopment of a strict division between the "spheres"). Seegenerally COTT, supra note 2 (providing an historical overview of theseparate "woman's sphere" in Victorian New England).
(37.) See COTT, supra note 2, at 19.
(38.)
A good wife who can find? She is far more precious than jewels.... She seeks wool and flax, and works with willing hands.... She considers a field and buys it; with the fruit of her hands she plants a vineyard.... She perceives that her merchandise is profitable.... She makes linen garments and sells them; she delivers girdles to the merchant. Strength and dignity are her clothing, and she laughs at the time to come.... Her children rise up and call her blessed; her husband also, and he praises her: "Many women have done excellently, but you surpass them all."
Proverbs 31 (Revised Standard Version).
(39.) See COTT, supra note 2, at 69-70 (describing the idealVictorian wife).
(40.) Sarah Josepha Hale, the editor of Godey's Lady'sBook, declared in 1832: "Our men are sufficiently money-making. Letus keep our women and children from the contagion as long aspossible." COTT, supra note 2, at 68; see HAYDEN, supra note 2, at13.
(41.) For discussion of the separation of men's work from theprivate sphere, see, for example, COTT, supra note 2, at 59-62; Jeffery,supra note 36, at 29; Olsen, supra note 4, at 1499.
(42.) See, e.g., COTT, supra note 2, at 63-74 (describingdomesticity); see also Linda K. Kerber, Separate Spheres, Female Worlds,Woman's Place: The Rhetoric of Women's History, 75 J. AM.HIST. 9 (1988) (discussing development of the woman's sphere);Siegal, supra note 36, at 1093 ("The so-called 'cult ofdomesticity" that developed in the early decades of the nineteenthcentury depicted the economic developments of the era in exaggerated,gender-conscious form. In popular discourse, family and market appearedas two distinct spheres. ... The market was a male sphere of competitiveself-seeking, while the home was celebrated as a female sphere, a siteof spiritual uplift that offered relief from the vicissitudes of marketstruggle.").
(43.) See COTT, supra note 2, at 64 (arguing that "[t]hecentral convention of domesticity was the contrast between the home andthe world").
(44.) See HOUGHTON, supra note 36, at 341-47 (describing how theVictorian home was idealized as a respite from the business world). Butcf. COTT, supra note 2, at 70 (noting that many Victorian-Era womenbrought commerce into the home by engaging in the "given-out"system of production).
(45.) HOUGHTON, supra note 36, at 343.
(46.) See COTT, supra note 2, at 67-70.
(47.) See WRIGHT, supra note 36, at 109 ("The widely heldexpectation that the impersonal market was grueling and cutthroat,harshly competitive and draining, posed the home as compensation.`[T]his stirring career away from home,' wrote one contentedhusband, `renders home to him so necessary as a place of repose, wherehe may take off his armor, relax his strained attention, and surrenderhimself to perfect rest.'").
(48.) COTT, supra note 2, at 64 (alteration in original); see alsoJACKSON, supra note 3, at 48 (quoting Reverend William G. Eliot,Jr.'s 1853 sermon to a female audience: "The foundation of ourfree institutions is in our love, as a people, for our homes. Thestrength of our country is found, not in the declaration that all menare free and equal, but in the quiet influence of the fireside, thebonds which unite together in the family circle. The corner-stone of ourrepublic is the hearth-stone").
(49.) See JACKSON, supra note 3, at 69-72; WRIGHT, supra note 36,at 73-89, 96-113.
(50.) See JACKSON, supra note 3, at 45-72; see also FISHMAN, supranote 20, at 117-33 (discussing development of early American suburbs);Jeffrey, supra note 36, at 25-29 (discussing the development of the"middle-class cult of the rural home").
(51.) See JACKSON, supra note 3, at 46, 56-57.
(52.) See WRIGHT, supra note 36, at 107-09.
(53.) JACKSON, supra note 3, at 71-72; see also FISHMAN, supra note20, at 4 ("From its origins, the suburban world ... was based onthe principle of exclusion. Work was excluded from the family residence;middle-class villas were segregated from working-class housing; thegreenery of suburbia stood in contrast to a gray, polluted urbanenvironment.").
(54.) WRIGHT, supra note 36, at 97.
(55.) See JACKSON, supra note 3, at 122-37 (discussing thedevelopment of middle-class suburbs).
(56.) FISHMAN, supra note 20, at 129 (quoting Olmstead on desire to"ruralize" all of the American population); see also JACKSON,supra note 3, at 117 (noting that "it had ... been the dream ofAndrew Jackson Downing in the 1840s to resettle `honest workingmen'in the distant open spaces").
(57.) See JACKSON, supra note 3, at 136 ("For the first timein the history of the world, middle-class families in the latenineteenth century could reasonably expect to buy a detached home on anaccessible lot in a safe and sanitary environment."); WRIGHT, supranote 36, at 99-106 (discussing the availability of affordable suburbanhomes in the early twentieth century).
(58.) See TOLL, supra note 31, at 187 (noting that within one yearof New York enacting the first zoning law in 1916, 20 cities hadfollowed suit; thousands more did so in the following decade); see alsoNewman F. Baker, Zoning Legislation, 11 CORNELL L.Q. 164, 169 (1926)(noting the "remarkable growth" of zoning and observing that"[i]n spite of the fact that it is recent it is no longer anexperiment").
(59.) See PLATT, supra note 25, at 228-33; see also TOLL, supranote 31, at 57 (noting that many of the reformers were "internalimmigrants" who had moved from the country to the city and whoviewed the rural life as an antidote to the harsh realities of thepostindustrial world).
(60.) See, e.g., FISHMAN, supra note 20, at 4 (discussing theinflux of immigrants and "cheap tenements and boarding houses"that led to the development of suburbia); JACKSON, supra note 3, at20-25 (describing class segregation inside and outside majormetropolitan areas); Baker, supra note 58, at 164-65 (discussing theneed for zoning and drawing connection between the fact that "alarge part of the foreign element in our population drifts to thecities" to the rise of congested "foreign quarters" that"breed vice and crime").
(61.) See WRIGHT, supra note 36, at 194 (discussing the"exclusionary" motivations of zoning reformers); Bruno Lasker,Unwalled Towns, 43 THE SURVEY 675, 677 (1920) (condemning the classdivision perpetrated by segregating residences of lower-socioeconomicpopulations into industrialized cities and wealthier populations intosuburban towns); Martha A. Lees, Preserving Property Values? PreservingProper Homes? Preserving Privilege?: The Pre-Euclid Debate Over Zoningfor Exclusively Private Residential Areas, 1916-1926, 56 U. PITT. L.REV. 367, 413-18 (1994) (observing that one motivation of zoningadvocates was to maintain the separation of the public and privatespheres). See generally Charles H. Cheney, Removing Social Barriers byZoning, 44 THE SURVEY 275 (1920) (promoting exclusively residentialzones, especially single-family neighborhoods); Robert H. Whitten, TheZoning of Residence Sections, 10 PROC. NAT'L CONFERENCE ON CITYPLAN. 34 (1918) (observing that "[r]esidence districts must ... beprotected against invasion by trade and industry" and proposingmethods of zoning).
(62.) See Lees, supra note 61, at 413-18, 428-33.
(63.) See Village of Euclid v. Ambler Realty Co., 272 U.S. 365(1926).
(64.) See id. at 369-70 (collecting cases in appellant'sargument).
(65.) See id.
(66.) Miller v. Board of Pub. Works, 234 P. 381,386-87 (Cal. 1925);see also Fourcade v. San Francisco, 238 P. 934,937 (Cal. 1925)("The basis of the rule there announced [in Miller] is thereasonable and necessary protection of the general uniform homedistricts from the encroachment of foreign and discordant uses, whichwould ultimately destroy such districts.").
(67.) Wulfsohn v. Burden, 150 N.E. 120, 123 (N.Y. 1925).
(68.) State ex rel. Carter v. Harper, 196 N.W. 451, 455 (Wis.1923).
(69.) Goldman v. Crowther, 128 A. 50, 62 (Md. 1925).
(70.) See PERIN, supra note 20, at 116-18 (discussing the exclusionof commercial uses from suburban neighborhoods by zoning laws); see alsoJerry Frug, The Geography of Community, 48 STAN. L. REV. 1047, 1081-85(1996) (arguing that the desire to legislate the "pastoralideal" pervades zoning laws). This ideology is also reflected inJustice Douglas's oft-quoted opinion in Village of Belle Terre v.Boraas, 416 U.S. 1, 9 (1974):
A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs.... The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.
(71.) See, e.g., Richard Briffault, Our Localism: Part I--TheStructure of Local Government Law, 90 COLUM. L. REV. 1, 3 (1990)("[E]ducation and zoning are the principal operations of localgovernments.... Land use control is the most important local regulatorypower."); William W. Buzbee, Urban Sprawl, Federalism, and theProblem of Institutional Complexity, 68 FORDHAM L. REV. 57, 92-94 (1999)(discussing the dominant role of local government in land use issues).
(72.) See PLATT, supra note 25, at 235-40 (describing typicalzoning schemes); cf. Shelby D. Green, The Search for a National Land UsePolicy: For the Cities' Sake, 26 FORDHAM URB. L.J. 69, 69 (1998)("[L]and use regulation remains a patchwork of discrete state andfederal laws and policies on use and development.").
(73.) See, e.g., Richard Briffault, Our Localism: Part II--Localismand Legal Theory, 90 COLUM. L. REV. 346,369-70 (1990) (discussingexclusion of commercial enterprises as integral to suburban land usepolicy); Frug, supra note 70, at 1081-89 (reviewing literature); RobertP. Inman & Daniel L. Rubinfeld, The Judicial Pursuit of Local FiscalEquity, 92 HARV. L. REV. 1662, 1685-89 (1979) (arguing that exclusionaryzoning is motivated by desire to protect tax base); Lawrence Gene Sager,Tight Little Islands: Exclusionary Zoning, Equal Protection, and theIndigent, 21 STAN. L. REV. 767 (1969) (applying equal protectiondoctrines for exclusionary zoning laws); Michael H. Schill,Deconcentrating the Inner City Poor, 67 CHI.-KENT L. REV. 795, 811-15(1991) (criticizing the decision of some communities to exclude bothmultifamily residences and commercial enterprises).
(74.) See, e.g., PLATT, supra note 25, at 235-36 (describingprimacy of excluding incompatible uses from residential zones); Kosman,supra note 25, at 79 ("[B]y placing the various districts within ahierarchy to protect some districts from less desirable uses more fully,zoning protected those districts deemed worthy of added protection. Thedistricts most in need of protection were those that containedsingle-family detached dwellings, perceived as the cornerstone ofAmerican society and values. The sociological and moral importance ofthese dwellings warranted their preferential treatment and maximumprotection from harmful, non-conforming uses." (footnotesomitted)).
(75.) See ANDERSON & YOUNG, supra note 18, [sections] 13.01.
(76.) See id. [sections] 13.02; see, e.g., REDONDO BEACH, CAL.,ZONING ORDINANCE [sections] 10-2.402 (a)(5) (1996) ("Accessory useshall mean a use incidental, related, appropriate, and clearlysubordinate to the main use."), available athttp://www.redondo.org/planning/z11.htm#sec402; CORPUS CHRISTI, TEX.,ZONING ORDINANCE [sections] 3-1.01(b) (2000) (defining accessory use as"one which is clearly incidental to or customarily found inconnection with, and ... on the same lot as the principle use of thepremises"), available at http://www.ci.corpus-christi.tx.us/services/planning/zoneindex.html; FORTWORTH, TEX., ZONING ORDINANCE [sections] 9.1.02 (1999) (definingaccessory use as "clearly incidental to the use of the principalbuilding or the primary use of the property and which is located on thesame premises as the primary use"), available athttp://ci.fort-worth.tx.us/development/zoning/ ordinance/index.htm.
(77.) See generally H.C. Lind, Annotation, What Constitutes a"Home Occupation" or the Like Within Accessory Use Provisionof Zoning Regulation, 73 A.L.R.2d 439 (1960); Lewis J. Smith, Note,Zoning: Accessory Uses and the Meaning of the"Customary"-Requirement, 56 B.U.L. REV. 542 (1976).
(78.) See Perron v. City of Concord, 150 A. 2d 403 (N.H. 1959).
(79.) See Wellesley v. Brossi, 164 N.E.2d 883, 886 (Mass. 1960).
(80.) See generally ANDERSON & YOUNG, supra note 18(summarizing municipal zoning regulations for home businesses).
(81.) See, e.g., MESA, ARIZ., ZONING ORDINANCE [sections] 11-4-4,11-5-5 (2000) (prohibiting all "commercial" activities inresidential zones), available at http://www.ci.mesa.az.us/planning/zonord.htm.
(82.) See ANDERSON & YOUNG, supra note 18, [sections] 13.02;see also CORPUS CHRISTI, TEX., ZONING ORDINANCE [sections] 3-1.36 (2000)(permitting art studios, dressmaking, professional offices, teachingmusic to one or two pupils at a time; prohibiting barber and beautyshops, restaurants, and businesses involving retail sales), available athttp://www.ci.corpuschristi.tx.us/services/planning/zoneindex.html;SPOKANE, WASH., CODE, [sections] 11.19.0320(C)&(D) (2000)(permitting barber or beautician services, dressmaking, tropical fishraising, custom floristy, photography, and repair of watches and smallappliances), available at http://www.spokanecity.org/citycode/default,asp?listing=11.19.0320&history=view; Gretchen McKay, Home BusinessesMay Be Allowed: Rules Would Spell Out Which Occupations Would BePermitted, PITT. POST-GAZETTE, Aug. 20, 1997, at N9, available in 1997WL 11839779 (discussing proposed amendments to the zoning code ofBellevue, Pennsylvania, which would allow attorneys, engineers,architects, accountants, physicians, dentists, real estate and insuranceagents, clergy, photographers, artists, and craftsmen to work from home,and prohibit beauty and barber shops, car repair garages, equipmentrental, restaurants and catering businesses, kennels or veterinaryoffices, mortuaries, private clubs, video arcades, bookstores, andtheaters).
(83.) There has been a significant amount of litigation concerningwhat occupations can properly be considered professional. See ANDERSON& YOUNG, supra note 18, [sections] 13.03.
(84.) See id.; see also JEFFERSON PARISH, LA., ORDINANCES[subsections] 40-92, -107, -127, -147 (2000), available athttp://www.municode.com/CGIIN/om_isapi.dll?infobase=11048.NFO&softpage=mccdoc.
(85.) See supra note 84 and accompanying text. The emphasis on theprofessional nature of permitted home-based occupations is evident inmany ordinances. See, e.g., JEFFERSON PARISH, LA., ORDINANCE [sections]40-3 (permitting "secondary professional office of a lawyer,engineer, architect, journalist, accountant or other professionalperson, and salesman, real estate agent, insurance agent and mail orderservice"); DURHAM COUNTY, N.C., ZONING ORDINANCE [sections] 7.18(8)(2000) ("Professional services such as the offices of anaccountant, architect, beautician, engineer, lawyer, or medicalpractitioner shall be permitted."), available athttp://www.ci.durham.nc.us/departments /planning/zoneord/index.html;CORPUS CHRISTI, TEX., ZONING ORDINANCE [sections] 3-1.36 (permitting"[p]rofessional office of a doctor, physician, dentist, lawyer,engineer, architect, accountant, salesman, real estate agent, [or]insurance agent").
(86.) See MESA, ARIZ., ZONING ORDINANCE [sections] 11-1-6 (2000)(defining "commercial use" as "[t]he buying, selling,leasing, or storage of real or personal property, or the furnishing ofservices for compensation"), available athttp://www.ci.mesa.az.us/planning/zonord.htm.
(87.) See ANDERSON & YOUNG, supra note 18, [sections] 13.03;see also SALT LAKE CITY, UTAH, ZONING ORDINANCE [sections] 21A.36.030(2000) (permitting designated professional trade to operate a homeoffice), available at http://www.ci.slc.ut.us. These types of provisionshave led to disputes about which occupations are properly consideredpermissible "professions" and which ones are prohibited"commercial" enterprises or businesses. Courts have found thatnumerous occupations are prohibited "businesses." Forhairdressers and barbers, see Gold v. Zoning Bd. of Adjustment, 143 A.2d59 (Pa. 1958); LaMontagne v. Zoning Bd. of Review, 186 A.2d 239 (R.I.1962). For insurance agents, see McVey v. Reichley, 152 N.E.2d 321 (OhioCt. App. 1957); Reich v. City of Reading, 284 A.2d 315 (Pa. Commw. Ct.1971). For real estate agents, see Dlugos v. Zoning Bd. of Appeals, 416A. 2d 180 (Conn. Super. Ct. 1980); Seaman v, Zoning Bd. of Appeals, 165N.E.2d 97 (Mass. 1960); Township of Ridley v. Pronesti, 244 A.2d 719(Pa. 1968). For electrical contractors, see Board of Adjustment v.Brandi, 387 A.2d 1016 (Pa. Commw. Ct. 1978). For interior decorators,see Norton v. Lay, 360 So. 2d 239 (La. Ct. App. 1978). For consultants,see Keefe Co. v. Board of Adjustment, 409 A.2d 624 (D.C. 1979). Forcarpet cleaners, see City of Boise City v. Gabica, 675 P.2d 354 (IdahoCt. App. 1984). And for lobster sellers, see Town of Kittery v. Hoyt,291 A.2d 512 (Me. 1972).
(88.) See ANDERSON & YOUNG, supra note 18, [sections] 13.03.
(89.) See generally id. [subsections] 13.21-.26; Bennett, supranote 21.
(90.) See ANDERSON & YOUNG, supra note 18, [sections] 13.26;see also TOPEKA, KAN., CODE [sections] 4829.01(a)(9)(a)(7) (2000) (25%of floor space), available at http://www.topeka.org/departmt/codebook/apendixc.htm; JEFFERSON PARISH, LA., ORDINANCE [sections] 40-3(2000) (15% of floor space); DURHAM COUNTY, N.C., ZONING ORDINANCE[sections] 7.18(2) (2000) (25% of floor space or 400 square feet);ALBUQUERQUE, N.M., ZONING CODE [sections] 14-6-2-2(7)(e) (2000) (25% offloor area), available at http://www.amlegal.com/albuquerque_nm;SPOKANE, WASH., CODE [sections] 11.19.0320(B)(3) (2000) (the lesser of25% of floor space or 200 square feet), available athttp://www.spokanecity.org/CityCode/default.asp?listing=11.19.0320&history=view.
(91.) See DURHAM COUNTY, N.C., ZONING ORDINANCE [sections] 7.18(3);CORPUS CHRISTI, TEX., ZONING ORDINANCE [sections] 3-1.36 (2000),available at http://www.ci.corpus-christi.tx.us/services/planning/zoneindex.html; SALT LAKE CITY, UTAH, ZONING ORDINANCE[sections] 21A..36.030(H)(3); SPOKANE, WASH., CODE [sections]11.19.0320(B)(4).
(92.) See TOPEKA, KAN., CODE [sections] 48-29.01(a)(9)(a)(3); SALTLAKE CITY, UTAH, ZONING ORDINANCE [sections] 1A.36.030(G)(14); SPOKANE,WASH., CODE [sections] 11.19.0320(B)(1).
(93.) See ANDERSON & YOUNG, supra note 18, [sections] 13.21.
(94.) See PARADISE VALLEY, ARIZ., ZONING ORDINANCE [sections] 201(2000), available athttp://www.ci.paradise-valley.az.ua/Townhall/ZoningOrd.htm; TAMPA, FLA.,ZONING ORDINANCE [sections] 27-131(2) (2000), available athttp://www.municode.com/CGI-BIN/om_isapi.dll?infobase=10132.NFO&softpage=mccdoc; JEFFERSON PARISH, LA., ORDINANCE[sections] 40-3; DURHAM COUNTY, N.C., ZONING ORDINANCE [sections]7.18(1); ALBUQUERQUE, N.M., ZONING ORDINANCE [sections] 14-16-2-2(7)(b);FORT WORTH, TEX., ZONING ORDINANCE [sections] 9-1.02 (1999), availableat http://www.ci.fort-worth.tx.us/development/zoning/ordinance/index.htm; SPOKANE, WASH., CODE [sections] 11.19.0320(B)(5); ANDERSON &YOUNG, supra note 18, [sections] 13.22. A few codes permit homebusinesses to hire one employee. See, e.g., TOPEKA, KAN., CODE[sections] 48-29.01(a)(9)(a)(2); CORPUS CHRISTI, TEX., ZONING CODE[sections] 3-1.36.
(95.) Compliance with these provisions would preclude theproprietor from taking advantage of the federal income tax deductionavailable for home offices. See 26 U.S.C. [sections] 280A(c)(1)(B) (1994& Supp. IV 1998) (mandating that the tax deduction is available onlyif one's home is one's principle place of business or is usedfor "meeting or dealing" with "patients, clients, orcustomers").
(96.) See, e.g., TOPEKA, KAN., CODE [sections]48-29.01(a)(9)(a)(4); CORPUS CHRISTI, TEX., ZONING ORDINANCE [sections]3-1.36; FORT WORTH, TEX., ZONING ORDINANCE [sections] 9.1.02; ANDERSON& YOUNG, supra note 18, [sections] 13.24.
(97.) See ALBUQUERQUE, N.M., ZONING CODE [sections]14-16-2-2(A)(7)(c); SPOKANE, WASH., CODE [sections] 11.19.0320(B)(8);see also SALT LAKE CITY, UTAH, ZONING ORDINANCE [sections] 21A.36.030(C)(prohibiting welding shops, machine shops, and cabinetmaking).
(98.) See JEFFERSON PARISH, LA., ORDINANCE [sections] 40-3;ALBUQUERQUE, N.M., ZONING CODE [sections] 14-16-2-2(A)(7)(c); FORTWORTH, TEX., ZONING ORDINANCE [sections] 9.1.02; SPOKANE, WASH., CODE[sections] 11.19.0320(B)(8); cf. SALT LAKE CITY, UTAH, ZONING ORDINANCE[sections] 21A.36.030(H)(10) ("Stock-in-trade, inventory, or othermerchandise shall be allowed to be kept only in the interior space ofthe dwelling.").
(99.) See ANDERSON & YOUNG, supra note 18, [sections] 13.23;see also SALT LAKE CITY, UTAH, ZONING ORDINANCE [sections]21A.36.030(H)(8) ("No mechanical or electrical apparatus, equipmentor tools shall be permitted in the home occupation except those whichare commonly associated with a residential use or as are customary tohome crafts....").
(100.) See ANDERSON & YOUNG, supra note 18, [sections] 13.25;see also PARADISE VALLEY, ARIZ., ZONING ORDINANCE [sections] 201 (2000),available at http://www.ci.paradisevalley, az.us/Townhall/ZoningOrd.htm(permitting nameplate not more than one square foot); TOPEKA, KAN., CODE[sections] 48-29.01(a)(9)(a)(3) (generally prohibiting exterior signs);JEFFERSON PARISH, LA., ORDINANCE [sections] 40-3 (permitting smallnameplate); DURHAM COUNTY, N.C., ZONING ORDINANCE [sections] 7.18(4)(2000) ("No display of goods, products or services shall be visiblefrom off site."), available at http://www.ci.durham.nc.us/departments/planning/zoneord/ index.html; CORPUS CHRISTI, TEX., ZONINGORDINANCE [sections] 3-1.36 (permitting small nameplate but prohibitingexternal displays); SALT LAKE CITY, UTAH, ZONING ORDINANCE [sections]21A.36.030(H)(15) (allowing "one nonilluminated nameplate ...mounted flat against the building"); SPOKANE, WASH., CODE[sections] 11.19.0320(B)(6) (prohibiting commercial advertising exceptsmall nameplate).
(101.) PERIN, supra note 20, at 3.
(102.) See U.S. DEP'T OF HEALTH AND HUMAN SERVS., 1998GREENBOOK 661.
(103.) See, e.g., Anne L. Alstott, Tax Policy and Feminism:Competing Goals and Institutional Choices, 96 COLUM. L. REV. 2001, 2024(1996) (discussing women's need for flexible work schedules toaccommodate demands of child rearing); Mary L. Heen, Welfare Reform,Child Care Costs, and Taxes: Delivering Increased Work-Related ChildCare Benefits to Low-Income Families, 13 YALE L. & POL'Y REV.173, 194-96 (1995) (same); Edward J. McCaffery, Slouching TowardsEquality: Gender Discrimination, Market Efficiency, and Social Change,103 YALE L.J. 595, 619-20 (1993) (arguing that lack of access toflexible work has impeded women's economic prospects); see alsoPeter Beller & Mark Shauerte, Diversity Survey: Women Mark Decade ofProgress But Note More Goals at Law Firms, CHI. LAW., June 2000, at 8(finding that law firms are offering flex-time and part-time schedulesto accommodate and retain women lawyers with young children); RosemaryBennett, Banking `Performs Poorly on Flexible Working,' FIN. TIMES(London), July 5, 2000, at Nat'l News 6; John A. Challenger, ThereIs No Future for the Workplace, THE FUTURIST, Oct. 1998, at 16, 17("The Bureau of Labor Statistics reports that 27% of the civilianlabor force worked flexible schedules last year. That is an increase ofalmost 83% from 1991, when only 15% of workers had flexiblehours."); Carol Kleiman, Family-Friendly Economy BettersWorkers' Lives, CHI. TRIB., June 13, 2000, at Business 1, availablein 2000 WL 3673914; Carol Kleiman, Part-Time Options Can Pay Dividendsfor Employers, STAR-LEDGER (Newark, N.J.), July 10, 2000, at 28,available in 2000 WL 23588676; Alexandra Marks, Candidates Cater toParents, But Miss Top Concern: Time, CHRISTIAN SCI. MONITOR, June 23,2000, at USA 2, available in LEXIS, News Library, Christian ScienceMonitor File; Katherine Hunt Medill, As Flex Time Catches On, Workersand Employers Fight to Control It, CHI. DAILY HERALD, Mar. 26, 2000, at4, available in 2000 WL 17102566 (noting that the number of full-timeworkers working "flex time" grew from 12.4% in 1985 to 28% in1997); Deborah Stead, Women on the Tightrope: Two Views, N.Y. TIMES,Oct. 5, 1997, at 3-7 (reviewing two books discussing pressures on womenin the workforce); Kerry Townsend, Female Partners Double Thanks toGender Initiative, FIN. TIMES (London), May 8, 2000, at Survey--theWork/Life Balance 2.
(104.) See McCaffery, supra note 103, at 674 (noting that"women have been given a stark choice: act like men havetraditionally acted in the work force, or get out"); Jane C.Murphy, Legal Images of Motherhood: Conflicting Definitions from Welfare"Reform," Family, and Criminal Law, 83 CORNELL L. REV. 688,724 (1998) (discussing research demonstrating that mothers "opt forthe 'mommy track' rather than succumbing to the open-endedavailability that most high-paying, demanding jobs require").
(105.) See June Ellenoff O'Neill, The Cause and Significanceof the Declining Gender Gap in Pay, in NEITHER VICTIM NOR ENEMY:WOMEN'S FREEDOM NETWORK LOOKS AT GENDER IN AMERICA 1, 1-6 (Rita J.Simon ed., 1995); June O'Neill, The Trend in the Male-Female WageGap in the United States, 3 J. LAB. ECON. S91, S96-111 (1985); JuneO'Neill & Soloman Polachek, Why the Gender Gap in WagesNarrowed in the 1980s, 11 J. LAB. ECON. 205, 218-24 (1993); see alsoMcCaffery, supra note 103, at 624-34 (arguing that the gender gapnarrows primarily because women's labor force participationincreasingly has come to parallel that of men).
(106.) See DIANA FURCHTGOTT-ROTH & CHRISTINE STOLBA,WOMEN'S FIGURES: AN ILLUSTRATED GUIDE TO THE ECONOMIC PROGRESS OFWOMEN IN AMERICA 14 (1996) (discussing several O'Neill studies).
(107.) Two years ago, for example, Liz Nickles and Laurie Ashcraftreleased the third segment of their three-decade survey of women'sattitudes towards work and family. When they surveyed women in the late1980s, Nickles and Ashcraft found that women were "gung ho,"working full time and complaining about the level of stress and lack ofsupport. By the late 1990s, the women surveyed had rejected this modelaltogether. Indeed, only 23% of working women surveyed in the late-90ssaid that a career was more important than being a wife and mother.Instead, Nickles and Ashcraft found that both working and nonworkingwomen expressed the same priorities. They considered home and familymore important as a career and valued quantity more than"quality" time with their kids. See Patricia Edmonds, WhatWomen Want Now: They're More Focused on Home--And Feel Less Guiltyabout It--Than Anytime in the Past 20 Years. Now the Word is Balance,USA WEEKEND, Oct. 25, 1998, at 4, available in 1998 WL 8302877; see alsoCharmaine Crouse Yoest, Make Way for Mom, Inc., POL. REV., July-Aug.1996 (discussing Roper Starch survey of 3000 employed women withchildren that found 43% would "prefer to stay home" full timeand 87% would like "to spend more time caring for theirchildren"), available at http://www.policyreview.com/jui96/homef.html.
(108.) See Marie C. Franklin, Women Turning to EntrepreneurialOptions; Female Owned Firms Have More Employees than the Fortune 500,BOSTON GLOBE, May 22, 1995, available in LEXIS, News Library, BostonGlobe File ("Women are starting their own businesses for a varietyof reasons: upward mobility, the chance to set their own policies andflexibility around family issues."); Anne Murphy, The Start-Up ofthe '90s, INC., Mar. 1992, at 32 (suggesting that many women startbusinesses for "reactionary reasons: to escape the glass ceiling,gain the flexibility to raise a family, or win access to opportunitiesclosed off to them in a corporate world"). For an interestinginternational perspective, see Faranak Miraftab, (Re)Production at Home:Reconceptualizing Home and Family, 15 J. FAM. ISSUES 467 (1994)(discussing her study of women-owned home-based enterprises in Mexicoand concluding that working from home had positive effects onwomen's authority within the home).
(109.) See Martha Chamallas, Structuralist and Cultural DominationTheories Meet Title VII: Some Contemporary Influences, 92 MICH. L. REV.2370, 2374-75 (1994) (discussing argument that "mommy track"jobs cause "tokenism and segregation"). See generally DOROTHYP. MOORE & E. HOLLY BUTTNER, WOMEN ENTREPRENEURS MOVING BEYOND THEGLASS CEILING (1997); Rebecca Korzec, Working on the"Mommy-Track": Motherhood and Women Lawyers, 8 HASTINGSWOMEN'S L.J. 117 (1997).
(110.) See Murphy, supra note 108, at 32 (noting that "womennow own almost one out of every three sole proprietorships in thecountry"). See generally U.S. SMALL BUS. ADMIN., WOMEN IN BUSINESS(1998) [hereinafter WOMEN IN BUSINESS] (discussing the significantgrowth in the number of women-owned businesses).
(111.) See WOMEN IN BUSINESS, supra note 110, at 2 (finding thatnumber of women-owned businesses increased 43% between 1987 to 1992,compared with a 26% increase in all businesses; receipts of women-ownedbusinesses increased 92% over same period, compared to 38.5% overall).
(112.) See id. at 1.
(113.) See Edwards & Field-Hendrey, supra note 8, at 27; seealso WOMEN IN BUSINESS, supra note 110, at 11 (citing data from the U.S.Census Bureau that in 1992 women owned 36.9% of the estimated 9 millionhome-based businesses).
(114.) See WOMEN IN BUSINESS, supra note 110, at 2; see also PRATT,supra note 9, at 84 (finding that half of women-owned businesses werehome-based).
(115.) See, e.g., Mary L. Carsky et al., An Integrated Model ofHomebased Work Effects on Family Quality of Life, 23 J. BUS. RES. 37(1991) (reviewing studies that suggest that working from home has mixedeffects on family quality of life); Hilary Silver, Homework and DomesticWork, 8 SOC. FORUM 181, 199-200 (1993) (reviewing studies finding thatworking from home decreased tension between work and family roles forworking-class women with children but increased it for professionalwomen); see also Edward Baig, Saying Adios to the Office, BUS. WK., Oct.12, 1998, at 152, available in LEXIS, News Library, Business Week File;Kathryn Balint, Portable Workplace is Coming Unplugged, Managers,Workers Say Telecommuting Not Worth Trade-offs, SAN DIEGO UNION-TRIB.,May 8, 2000, at A1, available in LEXIS, News Library, San DiegoUnion-Tribune File; Matthew Brelis, Beyond Lonely: Life as aTelecommuter, BOSTON GLOBE, Jan. 17, 1999, at C1, available in LEXIS,News Library, Boston Globe File; Robert E. Calem, Working at Home, forBetter or Worse, N.Y. TIMES, Apr. 18, 1993, at 3-1; Janet Kidd Stewart,Letter from Home; Out-of-Sight Telecommuters Might Be Out of Mind, CHI.TRIB., Apr. 5, 1998, at Womanews 7, available in LEXIS, News Library,Chicago Tribune File.
(116.) See, e.g., Edwards & Field-Hendrey, supra note 8, at26-27 (attributing rise in number of home-based workers in part to"the continued rise in women's labor force participation andin two-career families"); id. at 33 (finding it"unsurprising" that workers in need of"flexibility--women in general and especially those with youngchildren at home ... have a greater representation among home-basedworkers"); Harriet B. Presser & Elizabeth A. Bamberger,American Women Who Work at Home for Pay: Distinctions and Determinants,74 SOC. SCI. Q. 815, 835-36 (1993) (finding positive correlation betweennumber of children and likelihood of working from home); see also LauraR. Felder, Parents Get Support at Home, FEMALE Brings Support toCounty's Moms and Dads, DET. NEWS, May 8, 2000, at Metro 5,available in LEXIS, News Library, Detroit News File; Ellen Hoffman, MakeMoney, Work Barefoot, GOOD HOUSEKEEPING, May 1999, at 99; Anita MabanteLeach, Workers Feel at Home on the Job; Self-Employed Moms ShareEntrepreneurial Experiences, ARIZ. REPUBLIC, July 3, 1999, at Comm. 4,available in LEXIS, News Library, Arizona Republic File; Amy Saltzman,You, Inc., U.S. NEWS & WORLD REP., Oct. 28, 1996, at 66, availablein LEXIS, News Library, U.S. News & World Report File; SueShellenbarger, Work & Family: Parents of Teens Find Some Peace ofMind In Working at Home, WALL ST. J., June 18, 1997, at B1; AndreaStone, Women on Campus Say They Want It All, USA TODAY, Feb. 17, 1999,at 8A, available in LEXIS, News Library, USA Today File; Yoest, supranote 109 ("Home-grown entrepreneurship offers many women a way tohonor their commitment to family while pursuing professional challenges.This entrepreneurial spirit has allowed some women to regain control oftheir lives...."). The emotionally loaded question of how day careand parental absence affects young children aside, some psychologicalresearch suggests that children benefit from observing parents performwork from home. See, e.g., Betty A. Beach, Children at Work: The HomeWorkplace, 3 EARLY CHILDHOOD RES. Q. 209, 219-20 (1988) (highlightingthat children whose parents worked from home had "meaningfulinvolvement" in their parent's daily lives and gained"early understanding of ... work's tools and processes").
(117.) See generally HAYDEN, supra note 2 (discussing earlyfeminist efforts to secure pay for domestic work).
(118.) The "mompreneur" was the focus of Ellen H.Parlapiano and Patricia Cobe's 1996 book, Mompreneurs: AMother's Practical Step-by-Step Guide to Work-at-Home Success. SeePARLAPIAO & COBE, supra note 14.
(119.) See JENNIFER BASYE, 101 BEST EXTRA-INCOME OPPORTUNITIES FORWOMEN (1997); CHERYL DEMAS, THE WORK-AT-HOME MOM'S GUIDE TO HOMEBUSINESS: STAY AT HOME AND MAKE MONEY WITH WAHM.COM (2000); FOLGER,supra note 14; PRISCILLA Y. HUFF, 101 BEST HOME-BASED BUSINESSES FORWOMEN (2d ed. 1998); KATINA Z. JONES, THE 150 MOST PROFITABLE HOMEBUSINESSES FOR WOMEN (2000); PARLAPIANO & COBE, supra note 14;ROBERTS, supra note 14; Bizy Moms.com: The Ultimate Work At Home &Stay At Home Moms Resource, at http://www.bizymoms.com (last visitedOct. 30, 2000); HerHomeOffice.com: Earn Money While Working at Home, athttp://www.herhomeoffice.com (last visited Oct. 30, 2000);HomeWorkingMom.com: The Best Resources for Moms Who Choose To Work AtHome, at http://www.homeworkingmom.com/ (last visited Oct. 30, 2000);WAHM.com: The Online Magazine for Work at Home Moms, athttp://www.wahm.com (last visited Oct. 30, 2000); Working Moms Refuge:Career, at http://www.momsrefuge.com/telecommute/(last visited Oct. 30,2000).
(120.) See PRATT, supra note 9, at 38; see also WOMEN IN BUSINESS,supra note 110, at 6-7 (finding that between 1987 and 1992 the number ofwomen-owned businesses grew fastest in wholesale trade, construction,transportation, communications, and public utilities).
(121.) See supra notes 85-100 and accompanying text.
(122.) See Yoest, supra note 107.
(123.) See Personal Responsibility and Work Opportunity Act of1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended inscattered sections of 42 U.S.C. and 8 U.S.C. (Supp. IV 1998)).
(124.) See, e.g., SARAH BRAUNER & PAMELA LOPREST, THE URBANINSTITUTE, WHERE ARE THEY NOW? WHAT STATES' STUDIES OF PEOPLE WHOLEFT WELFARE TELL US 8-9 (1999) (suggesting that the available dataundermines a "sunny" picture of welfare reform); CENTER ONURBAN & METRO. POLICY, BROOKINGS INST., THE STATE OF WELFARECASELOADS IN AMERICA'S CITIES: 1999, at 1 (1999) (finding that someurban areas have experienced increases in welfare caseloads), availableat http://www.brook.edu./es.urban/caseload.pdf.
(125.) Indeed, there is anecdotal evidence that previous rounds oflayoffs and corporate downsizing fueled the home business craze. See,e.g., Executive Update, INVESTOR'S BUS. DAILY, May 2, 1996, at A4(suggesting that "running a home-based business may be a goodcareer move for downsized managers, engineers and salespeople").
(126.) See generally Schill, supra note 73, at 799-808 (discussing"spatial mismatch" hypothesis as cause of concentration ofpoverty in the United States). Over the past 30 years, many major citiesexperienced sizable employment losses in industries with low mean levelsof employee education and gains in industries that employedbetter-educated workers. "[D]uring the 1980s New York City lost135,000 jobs in industries in which workers averaged less than twelveyears of education, and gained almost 300,000 jobs in industries inwhich workers had thirteen or more years of education." WILLIAMJULIUS WILSON, WHEN WORK DISAPPEARS: THE WORLD OF NEW URBAN POOR 32(1996). Philadelphia, Boston, and Baltimore experienced a fate similarto that of New York, losing jobs in "low-education" industrieswhile gaining positions for college-educated employees. See id.
(127.) See, e.g., H.B. 3798, 81st Reg. Sess. (Minn. 2000)(proposing telecommunication centers for rural and distressed areas).
(128.) See generally LISA J. SERVON, BOOTSTRAP CAPITAL:MICROENTERPRISES AND THE AMERICAN POOR (1999) (discussingmicroenterprise development programs); Margaret Beebe Held, DevelopingMicrobusinesses in Public Housing: Notes From The Field, 31 HARV.C.R.-C.L. L. REV. 473, 474-79 (1996) (discussing field study ofhome-based businesses in one Knoxville, Tennessee public housingproject); see also Joan Olek, A Lending Hand, BUS. WK., Feb. 28, 2000,at 40 (discussing microloan programs aimed at "bootstrap[ping]people out of poverty through entrepreneurship"), available inLEXIS, News Library, Business Week File).
(129.) Of the 4.3 million adults receiving AFDC in 1995, 3.8million, or 88%, were women. Ninety percent of those women were singlemothers of dependent children. See BUREAU OF TRANSP. STATISTICS, U.S.DEP'T OF TRANSP. WELFARE REFORM AND ACCESS TO JOBS IN BOSTON 2(1999), available at http://www.bts.gov/programs/transtu/welfare.pdf.
(130.) For discussions of the relationship between working mothersand child care availability, see generally U.S. GEN. ACCOUNTING OFFICE,WELFARE REFORM: IMPLICATIONS OF INCREASED WORK PARTICIPATION FOR CHILDCARE (1997), available athttp://www.gao.gov/AIndexFY97/abstracts/he97075.htm; U.S. GEN.ACCOUNTING OFFICE, WELFARE TO WORK: CHILD CARE ASSISTANCE LIMITED;WELFARE REFORM MAY EXPAND NEEDS (1995); Mary L. Heen, Welfare Reform,Child Care Costs, and Taxes: Delivering Increased Work-Related ChildCare Benefits to Low-Income Families, 13 YALE L. & POL'Y REV.173, 189-91 (1995); Marian Wright Edelman, Clinton's Child-CareInitiative Is Good News for U.S. Children, CHI. TRIB., Feb. 1, 1998, atWomanews 9, available in LEXIS, News Library, Chicago Tribune File;Richard Wolf, Child-care Tested as a Solution to Welfare, USA TODAY,Jan. 16, 1997, at A4, available in LEXIS, News Library, USA Today File.
(131.) See, e.g., Carol Sanger, Separating from Children, 96 COLUM.L. REV. 375, 507-08 (1996) (noting that "[s]ome states have triedto increase the availability of child care through zoning laws. Thuslocalities have exempted family day care (day care in theprovider's own home) from business exclusions otherwise applicablein residential neighborhoods.")
(132.) See Katherine Shaver, For `The Muffin Lady,' SomeHome-Baked Troubles, WASH. POST, Feb. 13, 1997, at A1. Fisher'sinitial misfortune turned out to be a blessing in disguise, leading toappearances on national television, a cookbook, and offers to franchiseher business. See Carole Sugarman, Muffin Makeovers: Recipes andReflections From Linda Fisher, Rebuilding Her Life One Batch at a Time,WASH. POST, Feb. 17, 1998, at E1.
(133.) See, e.g., Barbara Pressley Noble, Home Office: The RightAttitude, and the Right Stuff, N.Y. TIMES, May 28, 1995, at Cll(discussing how entrepreneurs can fully equip their home offices forless than $5000).
(134.) See PRATT, supra note 9, at 84-86 (finding that 5 % of womenand minority-owned firms, compared to 50 % of firms owned by white men,sought outside loans for start-up capital).
(135.) See supra notes 129-32 and accompanying text.
(136.) See SERVON, supra note 128, at 42.
(137.) See supra notes 80-88 and accompanying text.
(138.) See BUREAU OF LABOR STAT., LABOR FORCE STATISTICS FROM THECURRENT POPULATION SURVEY WORK AT HOME IN 1997 tb1. 1 (1998)[hereinafter WORK AT HOME IN 1997], available athttp://www.bls.gov/news.release/homey.nws.htm (finding that only 18% ofself-employed home-based workers engaged in "professionalspecialty" work).
(139.) See PRATT, supra note 9, at 38, 86-88 (finding women-ownedfirms concentrated in agricultural services, construction,manufacturing, and wholesale and retail trade; black-owned firmsconcentrated in agriculture, construction, manufacturing, and wholesaletrade; Hispanic-owned firms concentrated in agriculture, construction,and services); see also Presser & Bamberger, supra note 116, at832-33 (identifying the most popular occupations of women who work fromhome as childcare, bookkeeping, secretarial services, sales,cosmetology, artists and designers, household cleaning services, andtextile workers).
(140.) See WORK AT HOME IN 1997, supra note 138 (finding thatapproximately 60% of home-based workers used computers); U.S. SMALL BUS.ADMIN., E-COMMERCE: SMALL BUSINESSES VENTURE ONLINE (1999) [hereinafterSMALL BUSINESSES VENTURE ONLINE] (finding that information technologyand e-commerce make it easier to start a home business), available athttp://www.sba.gov/advo/stats/e_comm.pdf; Edwards & Field-Hendrey,supra note 8, at 26-27 (attributing growth in home-based workers totechnological advances, among other causes)
(141.) See, e.g., WORK AT HOME IN 1997, supra note 138 (estimatingthat more than 21 million persons did some work at home as part of theirprimary job in 1997); JOANNE H. PRATT, INTERNATIONAL TELEWORKASSOCIATION & COUNCIL, 1999 TELEWORK AMERICA NATIONAL TELEWORKSURVEY: COST/BENEFITS OF TELEWORKING TO MANAGE WORK/LIFERESPONSIBILITIES 1 (1999) [hereinafter PRATT, TELEWORK AMERICA] (findingthat "19.6 million teleworkers typically work 9 days per month athome with an average of 3 hours per week during normal businesshours"), available at http://www.telecommute.org/twa/twa_research_exec_summary.doc.
(142.) See, e.g., SANDY ANDERSON, THE WORKAT HOME BALANCING ACT:THE PROFESSIONAL RESOURCE GUIDE FOR MANAGING YOURSELF, YOUR WORK, ANDYOUR FAMILY AT HOME (1998); ALICE BREDIN & KIRSTEN LAGATREE, THEHOME OFFICE SOLUTION: HOW TO BALANCE YOUR PROFESSIONAL AND PERSONALLIVES WHILE WORKING AT HOME (1998); DEBRA A. DINNOCENZO, 101 TIPS FORTELECOMMUTERS: SUCCESSFULLY MANAGE YOUR WORK, TEAM, TECHNOLOGY, ANDFAMILY (1999); EDWARDS & EDWARDS, WORKING FROM HOME, supra note 14;NICOLE BELSON GOLUBOFF, TELECOMMUTING FOR LAWYERS (1998); JUNE LANGHOFF,THE TELECOMMUTER'S ADVISOR: REAL, WORLD SOLUTIONS FOR REMOTEWORKERS (2d ed. 1999); CLAIRE R. MCINERNEY, PROVIDING DATA, INFORMATION,AND KNOWLEDGE TO THE VIRTUAL OFFICE (1999); JACK M. NILLES, MANAGINGTELEWORK: STRATEGIES FOR MANAGING THE VIRTUAL WORKFORCE (1998).
(143.) See, e.g., Fern Telecommuting, athttp://www.ferntelecommuting.com (last visited Oct. 31, 2000); GilGordon Associates, Telecommuting, Telework and Alternative Officing, athttp://www.gilgordon.com (last visited Oct. 31, 2000); ITAC:International Telework Association & Council, athttp://www.telecommute.org (last visited Oct. 31, 2000); Jobs from Home,at http://www.jobsfromhome.com (last visited Oct. 31, 2000); Joanne H.Pratt Associates, Teleworking/Telecommuting Futurists, athttp://www.joannepratt.com (last visited Oct. 31, 2000); Telecommuting,at http://wwwworkathomeparents.com/telecommute. html (last visited Oct.31, 2000); Telecommuting Jobs. Employment Brought Home., athttp://www.tjobs.com (last visited Oct. 31, 2000); TelecommutingKnowledge Center, at http://www.telecommuting.org (last visited Oct. 31,2000); The American Telecommuting Association, athttp://www.knowledgetree.com/ata.html (last visited Oct. 31, 2000); WorkFrom Home Jobs Telecommuting Small Business Resource, athttp://www.homeworkers.org (last visited Oct. 31, 2000); Yahoo! Businessand Economy--Employment and Work--Telecommuting, athttp://dir.yahoo.com/business_and_economy/employment_and_work/telecommuting/(last visited Oct. 31, 2000).
(144.) See WORK AT HOME IN 1997, supra note 138 (noting that thenumber of wage and salary workers doing paid work at home grewdramatically between 1991 and 1997).
(145.) See Edward Cornish et al., The Opportunity Century,FUTURIST, Jan.-Feb. 2000, at 2 (citing study by Joseph Pelton).
(146.) Whether telecommuters are covered by zoning restrictions on"home occupations" is an open question; I have not found anyreported cases discussing the issue. Presumably, when the questionultimately arises, its resolution will depend on the nature of theemployment relationship: while telecommuters who work only a few hours aweek from home may be in the clear, zoning restrictions pose a greaterthreat to the increasing numbers of telecommuters who work full time ormaintain their primary office at home. See WORK AT HOME IN 1997, supranote 138 (discussing number of full-time home-based workers); Edwards& Field-Hendrey, supra note 8, at 27 (same).
(147.) See SMALL BUSINESSES VENTURE ONLINE, supra note 140, at 4;Lacey Burnette, O'Fallon Man's Internet Surfing Leads toHome-Based Business, ST. LOUIS POST-DISPATCH, May 9, 2000, at 4,available in LEXIS, News Library, St. Louis Post-Dispatch File; ReneeElder, Shipping Center Owners Find Customers Close to Home, THETENNESSEAN, Dec. 19, 1999, at 3E, available in LEXIS, News Library,Tennessean File; Melissa Hall, E-Commerce Start Requires Savvy, AUGUSTACHRON., Jan. 1, 2000, at O24, available in LEXIS, News Library, AugustaChronicle File; Home Based Business and the Internet, BUS. WIRE, Feb.16, 2000, available in LEXIS, News Library, Business Wire File; SmallMiracles Getting Bigger, BUS. WIRE, Mar. 28, 2000, available in LEXIS,News Library, Business Wire File; see also workathome.com, athttp://www.workathome.com (last visited Oct. 31, 2000) (providing anonline community for home-based workers). This subject has also found aniche in the "how to" book market. See, e.g., RICK BENZEL,HEALTH SERVICE BUSINESSES ON YOUR HOME-BASED PC (1993); MARK BUNTING& MARK SEAL, VIRTUAL POWER: USING YOUR PC TO REALIZE THE LIFE OFYOUR DREAMS (FIRESIDE 1999) (1997); EDWARDS & EDWARDS, MAKING MONEY,supra note 14; BARBARA A. FANSON, START AND RUN A PROFITABLE DESKTOPPUBLISHING BUSINESS (1997); RON E. GIELGUN, 121 INTERNET BUSINESSES YOUCAN START FROM HOME PLUS A BEGINNER'S GUIDE TO STARTING A BUSINESSONLINE (1998); PEGGY GLENN, WORD PROCESSING PROFITS AT HOME (2d ed.1993); PHIL PHILCOX, HOW TO EARN MORE THAN $30,000 A YEAR WITH YOUR HOMECOMPUTER: OVER 160 INCOME-PRODUCING PROJECTS (1999); LISA SHAW, HOW TOMAKE MONEY PUBLISHING FROM HOME (1997); HARVEY SUMMERS, OPERATING ADESKTOP VIDEO SERVICE ON YOUR HOME-BASED PC (1994); LYNN WALFORD, MAKEMONEY WITH YOUR PC! (1994).
(148.) See SMALL BUSINESSES VENTURE ONLINE, supra note 140, at 4.
(149.) Many virtual businesses do not generate the externalitiesthat disrupt a neighborhood. See infra note 193-95 and accompanyingtext.
(150.) See GIELGUN, supra note 149, at 93-288.
(151.) See, e.g., SMALL BUSINESSES VENTURE ONLINE, supra note 142,at 6 (finding that 65% of small businesses used the Internet to sellgoods and services); Small Businesses Dream of the Web, USA TODAY, June8, 2000, at 18 (reporting survey finding that more than half of allsmall business owners who have yet to establish a website would like touse the Internet to sell products or services), available in LEXIS, NewsLibrary, USA Today File.
(152.) JANE JACOBS, THE DEATH AND LIFE OF GREAT AMERICAN CITIES(1961).
(153.) See, e.g., Frug, supra note 70, at 1089-94 (describing the"new urbanism"). James Howard Kunstler sums up the "newurbanists" philosophy as follows:
[Zoning law's] chief characteristics are the strict separation of human activities.... After all, it's called zoning because the basic idea is that every activity demands a separate zone of its very own.... .... It soon becomes obvious that the model of the human habitat dictated by zoning is a formless, soulless, centerless, demoralizing mess. It bankrupts families and townships. It causes mental illness. It disables whole classes of decent, normal citizens. It ruins the air we breathe. It corrupts and deadens our spirits.
JAMES HOWARD KUNTSLER, HOME FROM NOWHERE 110-12 (1996).
(154.) The term "mixed-use"--a favorite of the newurbanists--is also attributable to Jacobs, who wrote of it as one of theconditions for vibrant city life. See JACOBS, supra note 152, at 152-77,222-40.
(155.) Unlike Jacobs, however, who expressed profound skepticismabout the entire enterprise of land use "planning," the newurbanists would replace the current set of rules with their own. See,e.g., KUNSTLER, supra note 153, at 135 (arguing in favor ofauthoritarian controls on development because "[a]uthorities canexist without being despotic"); Vicki Been, Comment on ProfessorJerry Frug's The Geography of Community, 48 STAN. L. REV. 1109,1114 (1996) (expressing concern that new urbanists would replace onesystem of land use rules with another).
(156.) For a discussion of the benefits of a more centralizedenvironment, see KUNSTLER, supra note 153, at 52-57.
(157.) PHILIP LANGDON, A BETTER PLACE TO LIVE: RESHAPING THEAMERICAN SUBURB 15 (1994).
(158.) See ANDRES DUANY ET AL., SUBURBAN NATION: THE RISE OFSPRAWLAND THE DECLINE OF THE AMERICAN DREAM 10-11 (2000) (praisingprewar patterns of development).
(159.) JAMES HOWARD KUNSTLER, THE GEOGRAPHY OF NOWHERE: THE RISEAND DECLINE OF AMERICA'S MAN-MADE LANDSCAPE 147 (1998).
(160.) See DUANY ET AL., supra note 158, at 15-18 (praising OldTown Alexandria).
(161.) Cf. Jeffery S. Hampton, County to Reduce Commercial Zoning;New Amendment Designed to Slow Strip Development on Tourist Roads,VIRGINIAN-PILOT (Norfolk, Va.), Jan. 8, 1999, at B1 (discussing proposalto permit home businesses to reduce demand for strip mall development),available in LEXIS, News Library, Virginian-Pilot File.
(162.) See supra notes 102-12 and accompanying text.
(163.) See COUNCIL ON ENVTL. QUALITY, THE COSTS OF SPRAWL: DETAILEDCOST ANALYSIS 26-27 (1974) (noting the concern that exclusionary zoningcontributes to sprawl); FISCHEL, supra note 25, at 263-64 (identifyingsuburban sprawl as "zoning's major deleterious effect");Richard Briffault, The Local Government Boundary Problem in MetropolitanAreas, 48 STAN. L. REV. 1115, 1149 (1996) (discussing regional"tragedy of the commons" created by local zoning decisions);Robert W. Burchell, Economic and Fiscal Costs (and Benefits) of Sprawl,29 URB. LAW. 159, 161-62 (1997) (identifying zoning law as cause ofsprawl); Robert W. Burchell & Naveed A. Shad, The Evolution of theSprawl Debate in the United States, 5 HASTINGS W.-NW. J. ENVTL. L. &POL'Y 137, 137 (1999) ("Sprawl occurs, in part, because localgovernments in the United States encourage this form of development viazoning and subdivision ordinances that, in turn, reflect the desires ofthe citizens."); James H. Wickersham, The Quiet RevolutionContinues: The Emerging New Model for State Growth Management Statutes,18 HARV. ENVTL. L. REV. 489, 494-96 (1994) (discussing connectionbetween Euclidean zoning and suburban growth patterns).
(164.) See Burchell, supra note 163, at 169.
(165.) See, e.g., ANTHONY DOWNS, STUCK IN TRAFFIC: COPING WITHPEAK-HOUR TRAFFIC CONGESTION 16-17 (1992); see also Been, supra note155, at 1110 (discussing economic reasons that Americans prefer thesuburbs); Burchell & Shad, supra note 163, at 138 ("Sprawl isso well-accepted by the public that the AAA-rated locations for bothresidential and nonresidential development are increasingly farther outrather than closer in, and more, rather than less, segregated by type ofland use."); Buzbee, supra note 71, at 65-66 ("Many Americansrecently surveyed about sprawl, however, confirmed market trends thatindicate many, if not most, citizens favor new residential developmentswith cul de sacs set at a substantial distance from retail markets andmass transit."); Peter Gordon & Harry W. Richardson, AreCompact Cities a Desirable Planning Goal?, J. OF AM. PLAN. ASS'N,Winter 1997, at 95, 96-97 ("Low density settlement is theoverwhelming choice for residential living.").
(166.) See LANGDON, supra note 157, at 14 (discussing connectionbetween long commutes and the loss of community); PETER NEWMAN &JEFFREY KENWORTHY, SUSTAINABILITY AND CITIES: OVERCOMING AUTOMOBILEDEPENDENCE 22 (1999) (noting the "isolationist" character ofmany modern cities and asserting that reducing traffic would improvecommunity development and sustainability); Craig N. Oren, GettingCommuters Out of Their Cars: What Went Wrong?, 17 STAN. ENVTL. L.J. 141,171-72 (1998) (discussing "wasted time" and other drawbacks tolong commutes); cf. Tirza S. Wahrman, Breaking the Logjam: The PeakPricing of Congested Urban Roadways Under the Clean Air Act to ImproveAir Quality and Reduce Vehicle Miles Traveled, 8 DUKE ENVTL. L. &POL'Y F. 181, 184-88 (1998) (discussing environmental impacts ofAmerica's reliance on cars in the suburbs).
(167.) See Frug, supra note 70, at 1096 (discussing negative impactof sprawl on women); Oren, supra note 166, at 171 (discussingquality-of-life consequences of sprawl).
(168.) See DOWNS, supra note 165, at 19; Briffault, supra note 163,at 1135; Robert Fishman, America's New City: Megalopolis Unbound,WILSON Q., Winter 1990, at 24, 33-36; Oren, supra note 166, at 169-70.
(169.) See Oren, supra note 166, at 169-70.
(170.) See FEDERAL HIGHWAY ADMIN., U.S. DEP'T OF TRANSP.,SUMMARY OF TRAVEL TRENDS: 1990 NATIONWIDE PERSONAL TRANSPORTATION SURVEY21 (1992) (noting that the average vehicle occupancy for trips to workdropped from 1.3 passengers in 1977 to 1.1 in 1990), available athttp://www-cta.ornl.gov/npta/1990/doc/travelTrends.pdf; PATRICIA S. HU& JENNIFER R. YOUNG, U.S. DEP'T OF TRANSP., SUMMARY OF TRAVELTRENDS: 1995 NATIONWIDE PERSONAL TRANSPORTATION SURVEY 40 (1999)(indicating that 79.6% of workers reported that they "usually drivealone"), available athttp://www-cta.ornl.gov/npts/1995/Doc/publications.html.
(171.) DOWNS, supra note 165, at 1.
(172.) One well-known economist noted that in 1995, "Americanslost more than eight billion hours to traffic delays, at a total cost ofmore than $80 billion--mainly in the form of wasted time...." PaulR. Krugman, The Tax-Reform Obsession, N.Y. TIMES, Apr. 7, 1996,[sections] 6 (Magazine), at 36, 37. Empirical evidence suggests that theprobability of working from home increases with the costs of commuting.See Edwards & Fields-Hendrey, supra note 8, at 33 (noting thatworkers living in rural areas "where commuting times to onsite workare likely to be longer than in urban areas" are more likely towork from home).
(173.) See generally Daniel Stokols et al., Traffic Congestion,Type A Behavior, and Stress, 63 J. APPLIED PSYCHOL. 467 (1978)(discussing results of experiment measuring commuter response to trafficimpedance); see also Stress and Absenteeism; the Hidden Costs ofCommuting, BUS. WIRE, Feb. 4, 1992 (reporting that"`high-impedance' commuting can ... affect the driver'stolerance for frustration, memory and mood" and, consequently,lessen worker productivity), available in LEXIS, News Library, BusinessWire File.
(174.) See Oren, supra note 166, at 150-161; see also Arnold W.Reitze, Jr., A Century of Air Pollution Control Law: What's Worked;What's Failed; What Might Work, 21 ENVTL. L. 1549, 1572 (1991)(arguing that the American system of land use laws which segregate"[p]eoples' homes ... from their work, shopping, andplay" leads to suburban sprawl and, consequently, concomitantdependence upon the automobile and air pollution).
(175.) For examples of legislative efforts in the past year see S.2447,106th Cong. [sections] 1 (2000) (proposing National Centers forDistance Working); H.R. 2084, 106th Cong. [sections] 1 (1999) (enacted)(establishing Department of Transportation pilot program to encouragetelecommuting as a means of reducing emissions); H.R. 2490, 106th Cong.,[sections] 1 (1999) (enacted) (appropriating funds for "flexplacetelecommuting centers"); H.R. 3500, 106th Cong. [sections] 3(a)(1999) (proposing "a pilot program to raise awareness abouttelecommuting among small business employers"); 145 CONG. REC.E.1589 (1999) (statement of Rep. Wolf on National Telecommuting and AirQuality Act, H.R. 2556, 106th Cong. [sections] 1 (1999)) ("Mr.Speaker, traffic congestion and lack of mobility threatens not only ournation's prosperity, but quality of life and the family unit. Thatis why today, I am introducing the `National Telecommuting and AirQuality Act,' a bill designed to reduce both air pollution andtraffic congestion. J); H.B. 1051, 62d Gen. Assembly, 2d Reg. Sess.(Colo. 2000) (providing an income tax credit for employers that allowtelecommuting); S.B. 305, 145th Gen. Assembly, Reg. Sess. (Ga. 2000)(requiring state agencies to ensure that at least 10% of their workforcetelecommutes), available athttp://www.ganet.state.ga.us/services/leg/ShowBill.cgi?year=1999&filename=1999/SB305; L.R. 210, 96th Leg., 1st Reg.Sess. (Neb. 1999) (initiating study of feasibility of telecommuting inNebraska); see also Michael Cabanatuan, Workers Try NewRoute--Telecommute; Traffic Provides Incentive for Working from Home,S.F. CHRON., Sept. 11, 1997, at A15 (discussing progression of attitudesin favor of telecommuting), available in LEXIS, News Library, SanFrancisco Chronicle File; Carol Kleiman, Telecommuting Attitudes Appearto Be on the Move, CHI. TRIB., Apr. 11, 2000, at B1 (discussingperceived benefits of telecommuting), available in LEXIS, News Library,Chicago Tribune File; Karen Lee, Governments Back Telework to SupportPublic Agenda, EMPL. BENEFIT NEWS, June 1, 2000 (reporting efforts ofWashington, D.C. area officials to promote telecommuting), available inLEXIS, News Library, Employee Benefit News File; Mary Jo Pitzl,Pollution Busters Stage Telecommuting Event; Officials Want to AvertOzone Emergency, ARIZ. REPUBLIC, Apr. 20, 1999, at B1 (describingTelework Greater Phoenix Day), available in LEXIS, News Library, ArizonaRepublic File.
(176.) See supra note 146 and accompanying text.
(177.) See WORK AT HOME IN 1997, supra note 138, at 1 (finding that"[w]age and salary workers who were paid for working at homeaveraged nearly 15 hours per week at home"). According to AnthonyDowns, "telecommuting has to be common to make any significantimpact" on traffic congestion or automobile emissions. DOWNS,supra, note 165, at 62. For example, 10% of workers working at home oneday per week would result in a 0.86% reduction in the number of morningpeak-hour trips; if the same number worked at home half time, thereduction in peak morning trips would increase to 2.16%. See id. at 63.
(178.) See PRATT, supra note 9, at 51 (finding that individuals whoown home-based businesses work an average of 35 hours per week at home);WORK AT HOME IN 1997, supra note 138, at 1 (estimating that"[w]orkers in home-based businesses worked 23 hours perweek"); see also Calem, supra note 115, at 3-1 (discussinginterviews with telecommuters and noting that "[t]hose who hadendured long commutes talked of the time saved").
(179.) Zoning enforcement is notoriously lax and frequentlycomplaint driven. See, e.g., PLATT, supra note 25, at 296 ("Zoninghas particularly been criticized for procedural inadequacies: laxenforcement, favoritism, lack of consistency with planning, andexcessive rigidity in some cases and undue flexibility inothers."); Eric T. Freyfogle, Real Estate Sales and the New ImpliedWarranty of Lawful Use, 71 CORNELL L. REV. 1, 1 (1985) ("Theenforcement of land use restraints ... is often haphazard.Municipalities usually do not check a property for ordinance and codeviolations unless someone files a complaint or requests aninspection."); Richard L. Wexler, "A Zoning Ordinance Is NoBetter Than its Administration"--A Platitude Proved: The Practicesand Procedures of Chicago's Zoning Board of Appeals, 1 J. MARSHALLJ. PRAC. & PROC. 74, 74-75 (1967) (stating that "the variationsand the administrative procedures for [zoning ordinance] implementationhave reached a point of abuse that endangers the very system they weredesigned to protect").
(180.) See City of Fairfield v. Courtney, No. CA92-11-226, 1993 WL199310, at *1 (Ohio Ct. App. June 14, 1993) (regarding case in whichneighbors reported that resident was operating a taxi service fromhome); Groninger v. Aumiller, 644 A.2d 1266, 1266 (Pa. Super. 1994)("For nearly five years now, Margaret and Donald Groninger havebeen trying to prevent their neighbors Thomas and Barbara Aumiller fromrunning a contracting business out of their model home...."); seealso BERNARD H. SIEGAN, LAND USE WITHOUT ZONING 31 (1972) (finding thatcomplaints about home businesses represented the largest category ofreported zoning violations in Houston suburbs); Amey Stone, A ZoningNightmare on Elm Street: Home Business? The Neighbors May Raise Hell,BUS. WK., Mar. 18,1996, at ENT32 (stating that neighbors are most likelyto report zoning violations by home businesses, and suggestingpreemptive strategies "to ward off zoning problems"),available in LEXIS, News Library, Business Week File.
(181.) See supra note 22.
(182.) Occasional press reports of enforcement efforts also suggestthat the risk is not nonexistent. See supra notes 23-24.
(183.) See cases cited supra note 22.
(184.) See State v. Trachtman, 947 P.2d 905 (Ariz. Ct. App. 1997)(rejecting appeal from convictions for violating zoning code prohibitinghome business); Robertson v. Rodriguez, 42 Cal. Rptr. 2d 464 (Cal. Ct.App. 1995) (concerning libel case turning on whether member of theCudahy, California City Council was criminally fined for illegallyoperating a business from his home); Town of Falmouth v. Long, 578 A.2d1168 (Me. 1990) (allowing $2500 fine against defendant for employingunrelated individuals in home business); Johnston v. Upper MacungieTownship, 638 A. 2d 408 (Pa. Commw. Ct. 1994) (concerning citation foroperation of antique book business from home).
(185.) See, e.g., David Cay Johnston, Giving at the Home Office;Municipalities Set New Charges for In-House Businesses, N.Y. TIMES, Dec.19, 1997, at D1 (discussing municipal efforts to tax home businesses);Fran Spielman, Home-Based Businesses Ignore City License Law, CHI.SUN-TIMES, Aug. 29, 1995, at News 1 (discussing refusal of illegal homebusinesses to comply with Chicago's licensing requirement),available in LEXIS, News Library, Chicago Sun-Times File. See generallyFRANK A. COWELL, CHEATING THE GOVERNMENT: THE ECONOMICS OF EVASION(1990) (discussing tax evasion by underground businesses).
(186.) For example, some labor experts worry that home-basedworkers are vulnerable to exploitation, a concern that will be moredifficult to police if home businesses have additional incentives toconceal their operations. See, e.g., Edwards & Field-Hendrey, supranote 8, at 27 (discussing debate about exploitation of home-basedworkers). Similarly, home child care centers that conceal operations toavoid detection by zoning officials may also evade licensing andoversight requirements. See, e.g., Protecting Children, Neighborhoods:Chandler Childcare Mess, ARIZ. REPUBLIC, June 20, 2000, at Community 4,available in LEXIS, News Library, Arizona Republic File.
(187.) Richard A. Epstein, The Moral and Practical Dilemmas of anUnderground Economy, 103 YALE L.J. 2157, 2158 (1994) (footnote omitted).
(188.) Monty Python's Flying Circus: Nudge Nudge, Wink Wink(BBC television broadcast, 1969).
(189.) See Robert C. Ellickson, Alternatives to Zoning: Covenants,Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681,762 (1973).
(190.) See, e.g., Eric C. Evarts, Home Zone: New Approaches to OldLaws, CHRISTIAN SCI. MONITOR, Nov. 24, 1997, at B4 (noting that mostcomplaints against home businesses come from neighbors), available inLEXIS, News Library, Christian Science Monitor File; Letters from thePeople: Operating Business At Home, ST. LOUIS POST-DISPATCH, Sept. 24,1995, at 2B (publishing letter defending a home-based art teacheragainst complaints by neighbors), available in LEXIS, News Library, St.Louis Post-Dispatch File; Stone, supra note 180, at ENT 32; Janet C.Wetzel, Home Business Divides Neighbors; Zoning Board Set to DecideDispute Today, CIN. ENQUIRER, Apr. 30, 1996, at B3 (discussing disputeover whether to grant variance for home auto repair shop), available inLEXIS, News Library, Cincinnati Enquirer File; see also Groninger v.Aumiller, 644 A.2d 1266 (Pa. Super. 1994) (affirming lower court'snullification of enforcement action initiated by neighbors againsthome-contracting business).
(191.) PERIN, supra note 20, at 116-17.
(192.) Id. at 91.
(193.) See supra note 154-61 and accompanying text.
(194.) See supra note 165 and accompanying text.
(195.) See, e.g., Vicki Been, "Exit" as a Constraint onLand Use Exactions: Rethinking the Unconstitutional Conditions Doctrine,91 COLUM. L. REV. 473, 525-28 (1991) (discussing factors involved infamilies' decisions about where to live); Buzbee, supra note 71, at64-69 (discussing causes of sprawl); see also Fred Barnes, SuburbanBeauty; Why Sprawl Works, WKLY. STANDARD, May 22, 2000, at 27-30(reviewing recent books on the suburban sprawl debate and asserting thatmost people prefer quiet, low-density neighborhoods), available inLEXIS, News Library, Weekly Standard File. But see ROBERTA BRANDES GRATZ& NORMAN MINTZ, CITIES BACK FROM THE EDGE: NEW LIFE FOR DOWNTOWN147-49 (1998) (noting that historic urban neighborhoods are the mostexpensive and desirable places to live).
(196.) See, e.g., Baker, supra note 58, at 169 ("Often zoningincreases the value of the property concerned. To illustrate--if aresidence district is set aside by a zoning regulation, the exclusion ofbusiness usually has the effect of increasing the value of the propertyfor residential purposes.").
(197.) Fourcade v. City and County of San Francisco, 238 P. 934,937 (Cal. 1925); see also Robert H. Whitten, Zoning and LivingConditions, 13 PROC. NAT'L CONF. ON CITY PLAN. 22, 25 (1921)("As soon as the confidence of the home owner in the maintenance ofthe character of the neighborhood is broken down through the coming ofthe store or of the apartment, his civic pride and his economic interestin the permanent welfare of the section declines.").
(198.) See WRIGHT, supra note 36, at 213-14 (noting that one of theoriginal motivations in zoning was to protect individuals' propertyinvestments); see also PERIN, supra note 20, at 150 (arguing that zoningprovides a "surer hedge against loss than going to court against adetrimental neighbor").
(199.) See supra note 24 and accompanying text.
(200.) See supra note 183 and accompanying text.
(201.) See, e.g., Bennett, supra note 21, at 10 (discussing effortsof one business to avoid detection by zoning authorities), Spielman,supra note 185 (discussing refusal of illegal home businesses to complywith Chicago's licensing requirement).
(202.) See COMMUNITY ASSOCIATIONS FACTBOOK 13 (CLIFFORD J. TREESEed., 1993) (estimating that, in 1992, there were 150,000 communityassociations governing 32 million people); ROBERT JAY DILGER,NEIGHBORHOOD POLITICS: RESIDENTIAL COMMUNITY ASSOCIATIONS IN AMERICANGOVERNANCE 5 (1992)(noting that, by the end of the 1980s, more than 30million Americans were subject to governance by over 130,000 residentialcommunity associations and predicting that the number of suchassociations would increase to 225,000 by the year 2000).
(203.) See Rosenberry, supra note 18, at 456 (discussing judicialenforcement of restrictive covenants against home businesses); see alsoMaryann Haggerty, It's Not Always Home Sweet Home; EntrepreneursWorking Out of the House Find Resistance in Some Neighborhoods, WASH.POST, May 2, 1998, at G1 (discussing homeowner association enforcementof covenants prohibiting home businesses).
(204.) See, e.g., Clayton P. Gillette, Courts, Covenants andCommunities, 61 U. CHI. L. REV. 1375, 1375 (1994)(suggesting that asystem of covenants enforced by residential associations "allow[s]individuals with common preferences to gravitate to a common locationwhere they can pursue their conception of the good life"). Thisobservation should not be read as an unmitigated endorsem*nt of such asystem of private government, which certainly has its critics andproblems. See, e.g., id. at 1375-76 (describing residential associationsas both a "blessing" and a "curse"). Nor am Iunsympathetic to requiring residents to "buy" their way intoexclusive neighborhoods, which works to the detriment of lower-incomeindividuals. See, e.g., Jon C. Dubin, From Junkyards to Gentrification:Explicating a Right to Protective Zoning in Low-Income Communities ofColor, 77 MINN. L. REV. 739 (1993) (arguing for exclusionary zoning toprotect and enhance property values in low-income areas). On the otherhand, lower-income residents may value the right to work from home morethan more wealthy ones. But see ROBERT D. BULLARD, INVISIBLE HOUSTON:THE BLACK EXPERIENCE IN BOOM AND BUST 63-70 (1987) (arguing thatHouston's lack of zoning led to incursions of commercialenterprises into black neighborhoods, which in turn reduced propertyvalues).
(205.) See Buzbee, supra note 71, at 65-66 (discussing publicopinion polls indicating preference for "suburban sprawl" typedevelopment); see also supra notes 194-95 and accompanying text. (notingthat suburban living is indeed popular).
(206.) While the empirical research on the connection betweenzoning rules and property values is mixed, it contains some support forthis conclusion. A number of studies have found that discordant uses donot necessarily decrease property values; at times, they increase them.See John P. Crecine et al., Urban Property Markets: Some EmpiricalResults and Their Implications for Municipal Zoning, 10 J.L. & ECON.79, 90-93 (1967) (finding that the effect of externalities caused bydiscordant uses on property values in Pittsburgh varied byneighborhood); Steven M. Maser et al., The Effects of Zoning andExternalities on the Price of Land: An Empirical Analysis of MonroeCounty, New York, 20 J.L. & ECON. 111, 124, 129 (1977) (finding noprice effects attributable to zoning and noting that "[p]resumablythe reason external costs are not observed to be capitalized into thevalue of the land is that there exists a sufficient diversity of tastesamong potential buyers; that is to say, there are buyers who areindifferent to the offensive use (perhaps even value it)"). But cf.FISCHEL, supra note 25, at 236-41 (arguing that empirical studiesconsistently have underestimated importance of negative externalitiesand effect of zoning on housing costs); Ronald N. Lafferty & H.E.Frech III, Community Environment and the Market Value of Single-FamilyHomes: The Effect of the Dispersion of Land Uses, 21 J.L. ECON. 381,382(1978) (finding that dispersion of nonsingle-family uses lowered housingprices); William J. Stull, Community Environment, Zoning, and the MarketValue of Single-Family Homes, 18 J.L. & ECON. 535, 551 (1975)(finding that "homeowners attached the highest value to communitieswhich were predominantly single-family but which also contained a smallamount of commercial activity").
(207.) See generally Been, supra note 195, at 514-18 (reviewingliterature demonstrating that people "vote with their feet" toselect communities with packages of land use rules and services thatthey desire).
(208.) See supra notes 23-24 and accompanying text.
(209.) See Liz Atwood, Home-business Proposal Meets Opposition;Community Leaders, PTA Fight Attempt to Ease Restrictions, BALT. SUN,Apr. 17, 1998, at 3B, available in LEXIS, News Library, Baltimore SunFile; Paul Carroll, West Seneca Gives Cool Reception to Home-basedOccupations, BUFF. NEWS, July 11, 1995, at 5B, available in LEXIS, NewsLibrary, Buffalo News File; Nancy Fischer, Board Tightens Regulations onBusinesses Run from Homes, BUFF. NEWS, Apr. 22, 1998, at 5B, availablein LEXIS, News Library, Buffalo News File; Home Offices Can CreateProblems, TAMPA TRIB., May 16, 1997, at Bus. & Fin. 7, available inLEXIS, News Library, Tampa Tribune File; Devi Sen Laskar, Day CareProvider Runs into Rules Roadblock, ATLANTA J.-CONST., July 4, 1996, at41, available in LEXIS, News Library, Atlanta Journal and ConstitutionFile; Hugo Martin, Council Clash Due on Business Proposal; Zoning:Bernson Opposes Loosening Rules Governing Home-based Entrepreneurs,While Chick Supports It, L.A. TIMES, Apr. 13,1996, at B5, available inLEXIS, News Library, Los Angeles Times File; John Pope, OccultBusinesses Must Obtain Permits, L.A. TIMES, June 2, 1998, at B3,available in LEXIS, News Library, Los Angeles Times File; MarkShallcross, Crestwood Tree Service Denied Conditional-Use Permit forHome Business: Too Many Off-site Employees; Board Suggests Company Applyfor Zoning Change, COURIER J. (Louisville, Ky.), Dec. 6, 1995, at 3N,available in LEXIS, News Library, Courier-Journal File; Donna Webster,Council Mulls Tighter Home-business Laws, KNOXVILLE NEWS-SENTINEL, Sept.26, 1999, at AC3, available in LEXIS, News Library, KnoxvilleNews-Sentinel File; Josh Zimmer, Home Jobs Ordinance Hits a New Problem,ST. PETERSBURG TIMES, Apr. 13, 2000, at Citrus Times 1, available inLEXIS, News Library, St. Petersburg Times File.
(210.) See, e.g., Ellickson, supra note 189, at 694 (arguing that"[t]he great danger ... is not that the drafters of zoningordinances will fail to eliminate nuisance costs, but that they will tryto eliminate them all"); Douglas W. Kmiec, Deregulating Land Use:An Alternative Free Enterprise Development System, 130 U. PA. L. REV.28, 46-47 (1981) (noting that local officials frequently overvalue thenuisance costs when promulgating land use rules).
(211.) See Ellickson, supra note 189, at 694 (discussing theprevention costs of zoning).
(212.) See Kmiec, supra note 210, at 52 (noting that zoning is"incapable of assimilating rapid changes in design, technology, orcommunity preferences").
(213.) See, e.g., Bennett, supra note 21, at 10 (quoting attorneyfor several Chicago-area municipalities: "We have businessessprouting where they were never intended to be").
(214.) See Village of Euclid v. Ambler Realty Co., 272 U.S. 365,387 (1926) (citing nuisance prevention as justification forcomprehensive zoning law); HOWARD LEE MCBAIN, AMERICAN CITY PROGRESS ANDTHE LAW 92-123 (1918) (arguing that zoning was needed to preventnuisances in rapidly growing, unplanned cities).
(215.) See, e.g., JAMES METZENBAUM, THE LAW OF ZONING 21 (1930)("The present zoning ordinances do not aim to prevent mere harmfuluses, but on the contrary, they are comprehensive in that they concernall uses--good, bad and indifferent....").
(216.) PERIN, supra note 20, at 116.
(217.) Indeed, I doubt that a new urbanist-inspired referendum toabolish the exclusively residential zone altogether would be moresuccessful than earlier proposals to replace zoning laws with othertypes of land use controls. See, e.g., FISCHEL, supra note 25, at 69-71(arguing that zoning rights should be marketable); ROBERT H. NELSON,ZONING AND PROPERTY RIGHTS 173 (1977) (proposing creation of market inland use permits); SIEGAN, supra note 180 (arguing, based upon Houstonexperience, in favor of abolition government land use controls in favorof system of private covenants and nuisance law); Ellickson, supra note189 (arguing for administrative nuisance system, supplemented by privatecovenants); Kmiec, supra note 210 (proposing to replace zoning withdensity-based system of land use controls); Jan Z. Krasnowiecki, AbolishZoning, 31 SYRACUSE L. REV. 719 (1980) (arguing in favor of replacingzoning with an adjudicative model of land use control that gives localofficials the ability to review proposals for new projects on acase-by-case basis).
(218.) See Atwood, supra note 24, at 3B; Cline, supra note 24, at028; Evans, supra note 24, at W3; Money Issues Top 17-Article RutlandWarrant, TELEGRAM & GAZETTE, (Worchester, Mass.), June 12, 1998, atB3, available in LEXIS, News Library, Telegram & Gazette File; Rulesfor Business in Homes Ok'd, supra note 24, at 2; Seibel, supra note24, at Neighbors 2. Others have actually tightened restrictions on homebusinesses. See Webster, supra note 209, at AC3. But see NH News Notes:Monfet Gains Seat, UNION LEADER (Manchester, N.H.), May 13, 1998, at A4(reporting that voters in Chester, New Hampshire approved all zoningchanges except rules that would "clarify and tighten regulationsgoverning home" businesses), available in LEXIS, News Library,Union Leader File.
(219.) See, e.g., Bennett, supra note 21, at 10 (discussing effortsto amend zoning rules in several cities).
(220.) See, e.g., FISCHEL, supra note 25, at 129-30 (arguing thatzoning restrictions can result in community losses); Ellickson, supranote 189, at 695-97 (discussing "prevention costs" of zoning).
(221.) "Special exception" or "conditional usepermit" provisions require landowners to secure administrativeapproval before using property in a way that is authorized by the zoningcode. See, e.g., ANDERSON & YOUNG, supra note 18, [subsections]21.01, 21.30; PLATT, supra note 25, at 245.
(222.) A "variance" is a limited administrativeauthorization to use property in a manner prohibited by the zoning code.See ANDERSON & YOUNG, supra note 18, [subsections] 20.02, 21.02.While, technically, variances are to be granted only in very limitedcirc*mstances in the interest of fairness and to ensure theconstitutionality of certain zoning provisions, see id., the empiricalresearch suggests otherwise. See ROBERT C. ELLICKSON & VICKI L.BEEN, LAND USE CONTROLS: CASES AND MATERIALS 330-31 (2d ed. 2000)(collecting studies and noting that between 50 and 90% oflandowners' requests for variances are granted); see also 5 NORMANWILLIAMS, JR., AMERICAN PLANNING LAW: LAND USE AND THE POLICE POWER 1(rev. ed. 1985) ("[I]t is common knowledge that zoning beards oftenignore the restrictive tone [of state enabling acts], and sometimes tendto hand out variances just for the asking."); Joseph H. Bornong& Bradley R. Peyton, Contemporary Studies Project: Rural Land UseRegulation in Iowa: An Empirical Analysis of County Board of AdjustmentPractices, 68 IOWA L. REV. 1083, 1161 (1983) (stating that boards'reasons for granting variances "rarely satisfy the legalrequirements"); Jesse Dukeminier, Jr. & Clyde L. Stapleton, TheZoning Board of Adjustment: A Case Study in Misrule, 50 KY. L.J. 273,338-39 (1962) (blaming excessive variance grants for the "crassugliness" of Lexington, Kentucky); Ronald M. Shapiro, The ZoningVariance Power--Constructive In Theory, Destructive In Practice, 29 MD.L. REV. 3, 9 (1969) (stating that the variance procedure's"`safety valve'... has ruptured into a steady`leak'").
(223.) For a proposal to replace most of zoning law--at least withrespect to new development--with this type of adjudicatory preapprovalprocess, see Krasnowiecki, supra note 217, at 749-52.
(224.) In Montgomery County, home occupations "with noimpact"--defined as those that are visited by fewer than fivevehicles per week, employ no nonresidents, and have "no discernableadverse neighborhood impact"--may operate as a matter of right. SeeMONTGOMERY COUNTY, MD, ZONING ORDINANCE [sections] 59-A-6.1(b) (2000),available at http://www.amlegal.com/montgomery_county_md. Homeoccupations "with major impact"--those which have discernableimpacts on traffic--are permitted but must obtain a special exception(renewable annually) from the board of zoning appeals. See id.[sections] 59-G.229; see also Evans, supra note 24, at W3 (discussingDanville, Indiana zoning amendments that parallel the Montgomery Countyscheme).
(225.) Any proposal to expand the use of variances and specialexceptions would be subject to the usual criticisms that an expanded useof "piecemeal" determinations undermine the legitimacy of landuse controls. See supra note 222. But see Carol M. Rose, Planning andDealing: Piecemeal Land Controls as a Problem of Local Legitimacy, 71CALIF. L. REV. 839, 893-910 (1983) (defending the use of piecemealplanning devices). Using the special exception process, which does notrequire the board to depart from the technical terms of the zoning codein order to authorize the applicant to work from home, would minimizecomplaints about administrative abuses and ad hocery. This argument,however, can also be criticized. See MANDELKER, supra note 25, at 65(arguing that special exceptions are equally subject to abuse as thevariance processes).
(226.) "Performance zoning" proponents advocate replacing(or partially replacing) Euclidean-type use zones with a series ofperformance standards designed to avoid the spill-over effects(externalities) of competing land uses. A landowner may use her land ina number of ways, provided that she satisfies the requisite performancestandards. For discussions of this model, see generally LANE KENDIG ETAL., PERFORMANCE ZONING (1980); DOUGLAS R. PORTER ET AL., FLEXIBLEZONING: HOW IT WORKS (1988). Performance zoning is widely used to dealwith industrial activities, but has gained some acceptance as a methodof regulating nonindustrial uses. See JULIAN CONRAD JUERGENSMEYER &THOMAS E. ROBERTS, LAND USE PLANNING AND CONTROL LAW 110-12 (1998). Fora history of performance zoning, see Frederick W. Acker, Note,Performance Zoning, 67 NOTRE DAME L. REV. 363,369-71 (1991).
(227.) Professor Robert Ellickson proposed such a system nearlythree decades ago when he suggested that cities could establish'Nuisance Boards" empowered to promulgate and enforce norms of"unneighborliness" through a system of frees. Ellicksonhypothesized that such an adjudicatory system would prove more efficientthan traditional zoning prohibitions, at least when it came toregulating the "localized" externalities that home businessesare likely to generate. See Ellickson, supra note 189, at 761-79. Inmore recent years, a number of scholars have proposed using nuisanceregimes to address a host of environmental and land use issues. See,e.g., Andrew Jackson Heimert, Keeping Pigs Out of Parlors: UsingNuisance Law to Affect the Location of Pollution, 27 ENVTL. L. 403(1997); Siobhan O'Keeffe, Using Public Nuisance Law to ProtectWildlife, 6 BUFF. ENVTL. L.J. 85 (1998); Omar Saleem, Killing theProverbial Two Birds With One Stone: Using Environmental Statutes andNuisance to Combat the Crime of Illegal Drug Trafficking, 100 DICK. L.REV. 685 (1996); Mary B. Spector, Crossing the Threshold: Examining theAbatement of Public Nuisances Within the Home, 31 CONN. L. REV. 547(1999).
(228.) Most zoning codes give local officials the authority tosanction landowners for using their land in a way that is not permittedby the zoning code, rather than empowering them to address the negativeexternalities that arise from permitted uses of property. See ELLICKSON& BEEN, supra note 222, at 107-08.
(229.) See FISCHEL, supra note 25, at 133 (discussing thetransaction costs of public decision making about land uses); Ellickson,supra note 189, at 693-99 (discussing administrative costs of zoning);Howard Latin, Ideal Versus Real Regulatory Efficiency: Implementation ofUniform Standards and "Fine-Tuning" Regulatory Reforms, 37STAN. L. REV. 1267, 1314-31 (1985) (arguing that individualizedvariances impose high administrative costs).
NICOLE STELLE GARNETT, Assistant Professor of Law, Notre Dame LawSchool, Notre Dame, Indiana. J.D., Yale Law School, 1995; B.A., StanfordUniversity, 1993. I thank A.J. Bellia, Patricia Bellia, Richard Garnett,and John Nagle for helpful comments, and Dean Patricia O'Hara andthe Notre Dame Law School for financial assistance. I also thank MaggieGarnett, who continues to teach me much about the benefits (and costs)of working from home. Christopher Keegan provided invaluable researchassistance. Mistakes are my own.
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