GOVERNMENT LAW CENTER OF ALBANY AW CHOOL ......Twenty-ve years ago, plan-ners and zoning regulations focused on segregating uses in dierent zones. With the ad-vent of computers, decentrali-zation

GOVERNMENT LAW CENTER OF ALBANY LAW SCHOOL

GOVERNMENT LAW ONLINE

ZONING FOR HOME OCCUPATIONS: MODERNIZING ZONING CODES TO

ACCOMMODATE GROWTH IN HOME‐BASED BUSINESSES

2006

80 New Scotland Avenue Albany, NY 12208 www.als.edu

GOVERNMENT LAW ONLINE publications are available at www.governmentlaw.org

Reprinted from the Real Estate Law Journal, Volume 35, at 181 (2006) with permission of Thomson/West. For more information about this publication, please visit www.west.thomson.com.

ZONING FOR HOME OCCUPATIONS: MODERNIZING ZONING CODES TO

ACCOMMODATE GROWTH IN HOME‐BASED BUSINESSES

Patricia E. Salkin, Esq. Associate Dean and Director

2006

These materials are copyright by Albany Law School (ALS) on behalf of its Government Law Center or ALS licensors and may not be reproduced in whole or in part in or on any media or used for any purpose without the express, prior written permission of Albany Law School or the licensor. Neither Albany Law School, the Government Law Center or any licensor is engaged in providing legal advice by making these materials available and the materials should, therefore, not be taken as providing legal advice. All readers or users of these materials are further advised that the statutes, regulations and case law discussed or referred to in these materials are subject to and can change at any time and that these materials may not, in any event, be applicable to a specific situation under consideration. The information provided in these materials is for informational purposes only and is not intended to be, nor should it be considered to be, a substitute for legal advice rendered by a competent licensed attorney or other qualified professional. If you have any questions regarding the application of any information provided in these materials to a particular situation, you should consult a qualified attorney or seek advice from the government entity or agency responsible for administering the law applicable to the particular situation in question.

Zoning andLand UsePlanningPATRICIA E. SALKIN*

Zoning for HomeOccupations:Modernizing ZoningCodes to AccommodateGrowth in Home-BasedBusinesses

I. Introduction

According to the U.S. Cen-sus report for the year 2000,over four million people workfrom home, a total of 3.3% ofthe nation’s population.1 Thatnumber can rise between 18.8million to 20.3 million depend-ing on how one de�nes work-ing from home.2 The SmallBusiness Administration re-ported that in 2000, nearly20,000 entrepreneurs grossedmore than $1 million operatingfrom a home-based environ-ment.3 Labeled by some as an‘‘explosion of homebased busi-

*Patricia E. Salkin is Associate Dean and Director of the Government LawCenter of Albany Law School. She is the author of New York Zoning Law &Practice, 4th ed. (Thomson/West, 1999) and co-editor of the monthly Zoningand Planning Law Report (Thomson/West).The author is grateful to AlbanyLaw School students Andrea Andrei, Melissa Ashline Heil and GlinnessaGailliard for their research assistance.

1U.S. Census, Available at: http://www.census.gov/population/cen2000/phc-t35/tab01-1.pdf (last accessed May 1, 2006). This number was derivedfrom the question ‘‘How did you usually get to work last week?’’, withrespondents having the option to choose ‘‘Worked at home.’’ It thereforeexcludes people who might hold two jobs or work from home only 2 days aweek. See generally, U.S. Census, http://www.census.gov/population/www/socdemo/workathome.html (last accessed May 1, 2006).

2See, Home Based Business Facts, Data & Statistics, Available at: http://www.nbbta.org/homebiz.htm (site visited April 2006); See generally, U.S.Census http://www.census.gov/population/www/socdemo/workathome.html(last accessed May 1, 2006).

181

nesses,’’4 a number of organi-zations are calling upon localo�cials to reassess their anti-quated zoning laws to addressthis trend.5 Zoning codes havetraditionally been designed toseparate incompatible landuses, leading to the establish-ment of separate zoning dis-tricts for businesses and for res-idential areas. However, withthe growth in home-based busi-nesses and home occupations,municipalities must be morecreative in balancing the publichealth, safety, and welfare inresidential districts and thepressures necessitating the ac-commodation of appropriatehome-based businesses.

The policy of zoning for in-creased home occupations istouted by environmental andenergy conservation advocatesas a positive step towards re-ducing daily commuter tra�c,

energy consumption, and airpollution.6 One strategy advo-cated by the American Plan-ning Association to reduce thedependence on fossil fuels is topromote land use actions thatallow for home-based occupa-tions that will translate into areduced number ofcommuters.7 On the AmericanPlanning Association’s web-site, one planner comments:Twenty-�ve years ago, plan-ners and zoning regulationsfocused on segregating uses indi�erent zones. With the ad-vent of computers, decentrali-zation of the workplace, work-at-home environments,footloose industry leaving thecountry, and the abandonmentof employees to fend for them-selves for retirement planningand health care protection, indi-viduals and families are facedwith doing everything from

3Id.4Christopher L. Hansen, ‘‘Special Report: Homebased Zoning’’ (February

2000). Available at: http://www.entrepreneur.com/Magazines/MA–SegArticle/0,1539,285818—-1-,00.html (site visited April 2006).

5See, e.g., San Joaquin Valley, Air Pollution Control District, Available at:http://www.valleyair.org/sta/staidx.htm (last accessed May 1, 2006).

6Amanda Siek, ‘‘Smart Cities: A Detailed Look at Land Use PlanningTechniques that are Aimed at Promoting Both Energy and EnvironmentalConservation,’’ 7 Alb. L. Envtl. Outlook J. 45 (2002).

7American Planning Association, Policy Guide on Planning for Sustainabil-ity (April 2000). Available at: http://www.planning.org/policyguides/sustainability.htm (site visited April 2006).

182 REAL ESTATE LAW JOURNAL [VOL. 35: 181 2006]

home — multi-tasking and be-ing self-reliant.8

One of the leading smartgrowth and land use advocatesobserved that since telecom-muting and home o�ces arebecoming a way of life, localzoning codes should re�ect,rather than deny, that reality.9

In a recent law review article,Professor Nicolle Stelle Gar-nett urged local o�cials totackle the home-based businessdilemma.10 She explained thatworking from home can helpparents better balance workand family, that it can enablelow-income individuals toachieve economic self-su�ciency, and that it couldhelp to alleviate social and en-vironmental problems resultingfrom sprawl.11 These senti-ments are echoed in the Townof Lloyd Comprehensive Plan,which explains:

Home occupations can providenumerous bene�ts for both home-based workers and the Town.Home-based businesses provideuseful services and encouragebusiness growth by eliminating theinitial need for some small busi-nesses to rent commercial space,an important factor to someonewho is just starting a new venture.Working at home also saves com-muting and childcare costs and re-duces tra�c congestion. Home oc-cupations can also provide manypeople who might be unable towork outside the home (includingsingle parents, the elderly and thedisabled) an opportunity to earn aliving. And by creating activity inresidential neighborhoods thatmight otherwise be deserted dur-ing the day, home occupationshelp to reduce crime.12

Professor Garnett points outthat many people are alreadyengaged in home occupationsdespite the fact that in manycases these uses are in violationof zoning codes.13 While sheacknowledges that in somesituations individuals may notbe aware of restrictive zoning

8James Finger, American Planning Association, Ask the Author (July 2005).Available at: http://www.planning.org/zoningpractice/askauthor/05/askauthor0705.htm (site visited April 2006).

9Stuart Meck, FAICP, ‘‘Bringing Smart Growth to Your Community,’’ TheCommissioner (Summer 2000). Available at: http://www.planning.org/thecommissioner/19952003/summer00.htm (site visited April 2006).

10Nicole Stelle Garnett, ‘‘On Castles and Commerce: Zoning Law and theHome-Business Dilemma,’’ 42 Wm. & Mary L. Rev. 1191 (1998).

11Id. at 1198.12Town of Lloyd, Comprehensive Plan, Chapter 8, Economic Development.

Available at: http://www.towno�loyd.com/pdf/CP–DGEIS8.pdf (site visitedApril 2006).

13Garnett, supra note 10, at 1228.

ZONING AND LAND USE PLANNING 183

laws, she suspects that manysimply believe that they canavoid detection by zoning au-thorities by simply circum-scribing their activities.14 How-ever, the prospect of unhappyneighbors running to the localzoning enforcement o�cer tocomplain puts home-basedbusiness operators at constantrisk for civil and/or criminalsanctions and for the possibil-ity of having to cease opera-tions immediately where it isdetermined they are in viola-tion of the local zoning law.15

Professor Garnett concludesthat the ‘‘widespread de�anceof zoning laws itself suggeststhat the rules governing homebusinesses may be candidatesfor reform.’’16

This column o�ers readersideas and examples of ways tomodernize local zoning laws tobalance the growing demandby residents to engage in legiti-mate home-based businesseswhile protecting community

character and the health, safety,and welfare of neighbors in res-idential zoning districts.

II. De�ning ‘‘HomeOccupation’’

The de�nition of ‘‘home oc-cupation’’ is not contained instate building codes but ratheris a product of local zoninglaws and ordinances.17 Munici-palities de�ne home occupa-tions in slightly di�erent ways.For example, in Cochise, Ari-zona, a home occupation is de-�ned as ‘‘an activity carried onby the occupant of a dwellingas a secondary use, includingpersonal and professional ser-vices . . . ’’, subject to certainlimitations.18 Similarly, theCity of Albany, New York, de-�nes the term as ‘‘[a] business,profession, occupation or tradeconducted by the occupant of adwelling unit or accessorystructure and which is inciden-tal and secondary to the use of

14Id.15Id. at 1228-9.16Id. at 1229.17See for example, http://www.dos.state.ny.us/code/faq.htm (site visited

April 2006).18County of Cochise, Arizona, ‘‘Home Occupations,’’ Available at http://

www.co.cochise.az.us/P&Z/homeoccupations.htm (site visited April 2006).Such limitations include, inter alia �oor area requirements, storage prohibi-tions, sign limitations. Id.


the dwelling unit.’’19 Otherde�nitions include ‘‘the sec-ondary use of a person’s resi-dence for a business activitycarried on for pro�t’’20 or ‘‘anygainful occupation engaged inby an occupant of a dwellingunit.’’21 The zoning ordinancein the Town of Old Saybrook,Connecticut, simply providesthat a home occupation consistsof an activity conducted forgain.22 The zoning code setsforth a number of standards andrequirements, discussed below,that must be satis�ed prior tothe receipt of a permit for ahome occupation.

III. Types of HomeOccupations

While the number and vari-ety of home occupations hasincreased over the years, it isfair to conclude that local zon-ing has not kept pace with thisexpansion. For example, theHome Based Business Council

lists roughly 200 potentialhome occupations that includeadvertising, art instruction,credit checking, auditing, fash-ion consulting, dating service,medical billing, travel consult-ing, market research services,tutoring, manicurist, messagetherapy, and telephone answer-ing service.23 Since code en-forcement o�cers and buildinginspectors must strictly enforcezoning, and they do not possessthe discretion to determinewhether one type of home oc-cupation, not speci�cally listedin a zoning ordinance, shouldbe permitted. For example, inone situation, the zoning en-forcement authority for theCity of New Rochelle, NewYork, determined that a resi-dent could not maintain ahome-based management con-sulting business because it wasnot permitted under the zoningin e�ect at the time, which pro-vided that the only home oc-

19City of Albany Zoning Ordinance, Chapter 375. Available at: http://www.e-codes.generalcode.com/codebook–frameset.asp?t=ws&cb=0934–A(site visited April 2006).

20City of Torrance Zoning Ordinance. Available at http://www.ci.torrance.ca.us/1695.htm (site visited April 2006).

21See, City of Boise Planning and Development Services. Available at:http://www.cityofboise.org/pds (site visited April 2006).

22Town of Old Saybrook, CT Zoning Ordinance, Article 1 § 303-8(F), Ad-ditional standards. Available at: http://www.e-codes.generalcode.com/codebook–frameset.asp?t=ws&cb=1816–A (site visited April 2006).

23HBBC List of Home Occupations, available at: http://www.medusaonline.com/hbbc/home–occupations.htm (site visited April2006).


cupations allowed were o�cesof architects, artists, and teach-ers or a ‘‘similar professionalperson.’’24 In that case, a num-ber of neighbors complainedabout the use, alleging that itresulted in increased tra�c andexcessive parking.25 As a result,it is best to regulate home oc-cupations based not on the typeof business, but rather on otherfactors such as percent of �oorarea dedicated to business use,number of employees, numberof parking spaces, and othercriteria discussed more fullybelow.

What constitutes a home oc-cupation di�ers from jurisdic-tion to jurisdiction, and allow-able home occupations mayvary depending upon the char-acter of the community. Forexample, in one Wyoming mu-nicipality, a meat processingoperation was quali�ed as ahome occupation.26 Operatingchild daycare programs inone’s home may also be con-

sidered a home occupation.27

The Town of Alfred, Maine,has identi�ed the followingfour types of home occupationsin its zoning ordinance:

1. O�ce in the home – A home oc-cupation which consists primarilyof an o�ce. Also in this categoryare home crafts which have nosales on-site, no parking of com-mercial vehicles on-site, and nomore than three client contacts inthe home per week. This does notinclude home occupations whichconsist of on-site manufacturing,warehousing, sales, parking ofcommercial vehicles, or clientcontact in the home. This does notinclude those home occupationswhich employ any one who is notrelated by blood or marriage to thebusiness owner, or who does notreside on the premises.

2. Home Crafts – A home occupa-tion which consists of creating ormanufacturing of an item, includ-ing, but not limited to, dressmak-ing, knitting, the manufacture ofcrafts, woodworking, drawing,painting, and sculpting. This doesnot include those home occupa-tions which employ more than oneperson who is not related by bloodor marriage to the business owner,

24Mary McAleer Vizard, ‘‘Home Businesses Run Afoul of Zoning,’’ NewYork Times, April 26, 1992. Available at: http://query.nytimes.com/gst/fullpage.html?res=9E0CE2D6163AF935A15757C0A964958260 (site visitedApril 2006).

25Id.26See, Yalowizer v. Town of Ranchester, 2001 WL 1012206 (10th Cir.

2001).27See, Susan Marie Connor, ‘‘Zoning and Matters of Age — Tots, Teens,

and Seniors,’’ 19-FEB Prob. & Propr. 61 (January/February 2005) (The authornotes that for purposes of providing child care, zoning ordinances may view itas an accessory use.)


or who does not reside on thepremises. No more than three cli-ent contacts in the home per weekare permitted.

3. In-Home Sales and Service – Ahome occupation which does notmeet the de�nition of ‘‘o�ce inthe Home,’’ or ‘‘home crafts,’’ butwhich does not include those homeoccupations which employ morethan one person who is not relatedby blood or marriage to the busi-ness owner, or who does not resideon the premises.

4. Home-Based Business – Anyhome occupation which employsmore than one person who is notrelated by blood or marriage to thebusiness owner, or who does notreside on the premises.28

Some municipalities choose tolist the types of business usesthat do not qualify for home oc-cupation status in thejurisdiction. For example, theordinance for the City of Deep-haven, Minnesota, providesthat the following are prohib-ited home occupations: service,repair or painting of any motor-ized vehicle, including but notlimited to motor vehicles, trail-ers, boats, personal watercraft,recreation vehicles and snow-mobiles; dispatch centerswhere persons come to a site

and are dispatched to other lo-cations; medical or dental clin-ics; rental businesses; contract-ing, excavating, welding ormachine shops; commercialkennels and veterinary clinics;tow truck services; the sale,lease, trade or other transfer of�rearms or ammunition; sale oruse of hazardous materials inexcess of consumer quantitieswhich are packaged for con-sumption by individual house-holds for personal care orhousehold use; and any otheruse of residential propertydeemed to be detrimental or in-consistent with the residentialcharacter of theneighborhood.29

IV. Methods ofRegulating HomeOccupations

While zoning ordinancesmay allow as-of-right a limitednumber of home occupations inspeci�c districts, this approachis not likely to most appropri-ately balance quality of lifeconsiderations for all districtresidents. There may be somehome occupations whereneighbors would have no idea

28Town of Alfred, Maine Zoning Ordinance, Article 2 § 160-14, De�nitions.Available at: http://www.e-codes.generalcode.com/codebook–frameset.asp?t=ws&cb=1317–A (site visited April 2006).

29See City of Deephaven, Minnesota Zoning Ordinance, § 1306, HomeOccupations. Available at: http://www.cityofdeephaven.org/Home%20Occupations.htm (site visited April 2006).


that business is being con-ducted within the residence.Other uses may attract cars anddelivery trucks and could in-volve signage on the otherwiseresidential property that couldbe a source of legitimate neigh-borhood concern. Other mu-nicipalities may deal withhome occupations by consider-ing requests on a case-by-casebasis through the zoning vari-ance process. The granting ofuse variances for home occupa-tions is probably most often nota valid application of the usevariance, and applicants maynot meet statutory and commonlaw tests for this type of relief.It is preferable, where munici-palities are inclined to allowhome-based business uses todo so either as of right, or bet-ter yet, through special use per-mit review or though perfor-mance standards, both of whichare discussed below.

A. Special Use Permits –Standards and Requirements

While some uses are allowedas-of-right, meaning that solong as all speci�ed setback,height, and bulk limitations aremet, the applicant will be

granted the requested permit,uses allowed by special usepermit (sometimes referred toas special exception) are thoseuses that are determined to gen-erally be compatible with otheruses in the district, but to makecertain, an additional layer ofcriteria for review by the ap-plicable board is added. Re-view discretion in these casesis limited to the criteria setforth in the zoning ordinance.This is one e�ective way ofreviewing permit applicationsfor home occupations.

In Ames, Iowa, the specialuse permit application lists theregulations and asks that theapplicant explain in writinghow the proposed home oc-cupation use meets thosestandards.30 Doing so educatesapplicants, arguably promotinggreater compliance.

Some municipalities sepa-rate home occupations by cate-gories, whereby one categoryrequires special use permit re-view, but another does not.31

For example, the Town of Prin-cetown, New York, designatesminor and major home

30See City of Ames, Iowa, Special Home Occupation: Special Use PermitApplication Packet. Available at: http://www.city.ames.ia.us/housingweb/P&Z%20Applications/Special%20Home%20Occupation.PDF (site visitedMay 2006).

31See Outlook: An Overview of Planning Issues in Herkimer and OneidaCounties, October 1998. Available at: http://www.oneidacounty.org/oneidacty/gov/dept/planning/98HomeOccup.pdf (site visited May 2006).


occupations.32 It appears fromthe list (doctors, artists, law-yers, plumbers, and instructorsof dance, music, or art) thatminor occupations attract smallamounts of tra�c while majoroccupations attract greaternumbers of people at one time.‘‘Major’’ home occupations,such as repair shops, doctor’so�ces that see patients, andhair salons,33 may be morelikely to create a nuisance oralter the residential appearanceof the neighborhood. Focusingon these di�erences, the townestablished di�erent standardsof review for each category.34

B. Performance StandardsDeveloping performance

standards as a method of regu-lating home occupations is themost prudent way to e�ectivelymanage the surge in home-based businesses. There are avariety of standards that can beemployed to accomplish thegoals of individualmunicipalities.

1. Regulating the Size ofthe Home Occupation

Zoning ordinances may pro-vide for the maximum allow-able �oor area in a home thatmay be used for a homeoccupation. This is one way toensure that the residence isused primarily as a dwellingand not as a business. For ex-ample, the ordinance in theBorough of Kane, Pennsylva-nia, provides that a home oc-cupation shall not utilize morethan 25% of the gross �oor areaof the dwelling unit.35 The Cityof Papillion’s approach is morespeci�c, providing that ‘‘[f]orall residential and agriculturalzoning districts, a maximumpercent �oor area of 30% of thedwelling may be devoted to thehome occupation, inclusive ofany detached accessory build-ings used for the homeoccupation.’’36 The City of Al-bany restricts the size of the useto a maximum of 500 squarefeet regardless of the size of the

32Id.33Id.34Id.35Borough of Kane, Pennsylvania Zoning Ordinance, Article § 250-5,

De�nitions and word usage. Available at: http://www.e-codes.generalcode.com/codebook–frameset.asp?t=ws&cb=1911–A (sitevisited April 2006).

36City of Papillion, Maine Zoning Ordinance, Article IV § 205-45, Acces-sory uses. Available at: http://www.e-codes.generalcode.com/codebook–frameset.asp?ep=fs&t=ws&cb=1746–A (site visited April 2006).


dwelling,37 and the Town ofOld Saybrook restricts thehome occupation to one (1)�oor of the dwelling unit andprovides that therein, not morethan 25% of such �oor may beused for this purpose.38

2. Regulating the Numberof Home Occupations PerDwelling Unit

It is possible that with morethan one working-age personoccupying a dwelling, therecould be multiple business usesoccurring within the building.Some municipalities have pro-actively approached this situa-tion by restricting the numberof home occupations per dwell-ing unit. For example, the Cityof Albany limits the number ofhome occupations per dwellingunit to one, so long as such useis clearly incidental and sec-ondary to the use of the dwell-ing unit for residentialpurposes. 39

3. Restricting the Numberof Employees On Site

Tra�c and parking are twomajor neighborhood concernsregarding home occupations.

One technique to help with traf-�c reduction is to restrict thenumber of on-site employeesthat may work in one home-based business. Municipalitiesshould be careful to determinewhether the maximum numberof employees is inclusive of alldwelling residents, only non-resident employees, or somecombination thereof. For ex-ample, the Borough of Kaneprovides that no more thanthree non-residents shall beemployed at a home-basedbusiness.40 The City of Papil-lion more speci�cally ad-dresses full-time and part-timeemployees and requires thatparking be provided for theseemployees. The ordinance pro-vides, in part that ‘‘[t]he homeoccupation shall employ nomore than one full-time or part-time employee on site otherthan the residents of the dwell-ing unit, provided that one o�-street parking space is madeavailable and used by that non-resident employee.’’41

4. Parking

37City of Albany, New York Zoning Ordinance, Chapter 375-106, Homeoccupations, supra note 19.

38Town of Old Saybrook Zoning Ordinance, Article 1 § 303-8(F), supranote 22.

39City of Albany Zoning Ordinance, Chapter § 375-106, Home occupa-tions, supra note 19.

40Borough of Kane Zoning Ordinance, Article § 250-5, supra note 35.41City of Papillion Zoning Ordinance, Article IV § 205-45, supra note 36.


Zoning ordinances may pro-vide that for home occupationsto exist, a certain number ofo�-street parking spaces mustbe available for use by eitheremployees or patrons. The Bor-ough of Kane ordinance re-quires that ‘‘a su�cient numberof paved o�-street parkingspaces shall be provided asdeemed necessary by the Zon-ing Hearing Board.’’42 TheTown of Alfred requires thatthere be su�cient o�-streetparking available within 100feet of the premises for custom-ers’ use without creating anytra�c or safety hazards43 It maybe a better idea to be more spe-ci�c in the ordinance by pro-viding for an actual number ofrequired spaces, although thisnumber may vary based uponthe type of use.

5. Tra�c GenerationAnother principal concern

with home occupations is theamount of tra�c that will begenerated in a residentialneighborhood as a direct resultof the use. Some zoning ordi-nances address the issue of traf-�c generation by providing amaximum number of vehicletrips that may be generated dur-

ing the course of an averageday when the premises are openfor business. For example, nomore than �ve or ten cars maybe driven to the home occupa-tion for either employees or forclients. The City of Papillionprovides speci�c criteria tied totrip generation. For example,the ordinance states that home-based businesses may generateno more than the greater of 30vehicle trips per day or 5% ofthe average daily tra�c volumeof the adjacent street. Peakhour tra�c generation may notexceed 16 vehicle trips, anddeliveries or service by com-mercial vehicles or trucks over10 tons gross empty weight areprohibited for any home-basedbusiness located on a localstreet.44

6. SignsSignage related to home oc-

cupations can be a major issuein residential districts. Munici-palities may regulate the use ofsigns for home occupationswithout violating the FirstAmendment. For example, inCity of Rochester Hills v.Schultz,45 the Michigan Su-preme Court upheld a ban onhome occupation signs. Ban-

42Borough of Kane Zoning Ordinance, Article § 250-5, supra note 35.43Town of Alfred Zoning Ordinance, Article 2 § 160-115, Home occupa-

tions, supra note 28.44City of Papillion Zoning Ordinance, Article IV § 205-45, supra note 36.45City of Rochester Hills v. Schultz, 459 Mich. 486, 592 N.W.2d 69 (1999).


ning signs for home occupa-tions is not uncommon, as busi-nesses would typically notadvertise on the front lawns ofhomes in residential areas. Thezoning ordinance of the City ofPapillion provides that ‘‘[s]ig-nage designating the home oc-cupation shall be prohibited,’’46

and the City of Hillsboro’s or-dinance states that ‘‘[n]o exte-rior signs, or window signs,shall be permitted that identifythe property as a businesslocation.’’47 The zoning ordi-nance of the Village of Olym-pia Fields, Illinois, provides inpart that ‘‘[t]here shall be noexterior display, no exteriorsign except as allowed by thesign regulations for the districtin which such home occupationis located . . . .’’48

Municipalities may chooseto regulate signs related tohome occupations based uponthe size of the sign to ensurethat it is scaled appropriately tobest �t in with the character ofthe community. For example,

the zoning ordinance for theBorough of Kane provides inpart that ‘‘[t]here shall be noexterior display or no signlarger than two feet by threefeet (unlit), exterior storage ofmaterials must be enclosed(covered) and no other exteriorindication of the homeoccupation.’’49 In addition, lo-calities may regulate the num-ber of signs advertising thehome occupation on each lotzoned for such use. For ex-ample, the zoning ordinancefor the City of Albany providesthat residents ‘‘shall not dis-play or create outside the build-ing any evidence of the homeoccupation, except that oneunanimated, nonilluminated�at or window sign having anarea of not more than twosquare feet shall be permittedon each street front of the zonelot on which the building issituated.’’50 The Town of Al-fred combines these two ap-proaches to sign regulation andprovides that ‘‘[h]ome occupa-

46City of Papillion, Maine Zoning Ordinance, Article IV § 205-45, supranote 36.

47City of Hillsboro, Oregon Home Occupation Permits. Available at: http://www.ci.hillsboro.or.us/Planning–Department/HomeOccupationPermits.aspx(site visited April 2006).

48Hawthorne v. Village of Olympia Fields, 204 Ill. 2d 243, 790 N.E.2d 832,274 Ill. Dec. 59 (2003), citing Olympia Fields Municipal Code § 22-3 (Ord.No. 17 as revised May 11, 1981).

49Borough of Kane Zoning Ordinance, Article § 250-5, supra note 35.50City of Albany Zoning Ordinance, Chapter § 375-106, Home occupa-

tions, supra note 19.


tion signs relating only togoods or services available onpremises, which may be sur-face mounted or freestandingbut may not exceed threesquare feet in surface area andthe top edge six feet in height.Only one home occupation signis permitted per premises. Anyhome occupation sign dis-played inside a window is con-sidered a sign and is counted inthe sign area allowed for homeoccupations.’’51

7. Other RequirementsWhile the discussion above

focuses on the major issues in-volved with the regulation ofhome-based businesses, mu-nicipalities may �nd it desir-able to adopt additional re-quirements to protect thecharacter of the residentialneighborhood. For example,some ordinances limit the typeof alterations that may be madeto the residential building thatis housing the homeoccupation. The City of Albanyprohibits alteration of the prin-

cipal residential building wheresuch changes alter the characterand appearance of thedwelling.52 The City of Papil-lion prohibits any change in theexterior appearance of thebuilding or premises housingthe home occupation.53 TheTown of Old Saybrook simplyrequires that there be no evi-dence outside the dwelling, ex-cept permitted signs and re-quired o�-street parking, thatthe dwelling contains a homeoccupation.54

Still other zoning regulationsprohibit the outdoor storage ofequipment or materials used inthe home occupation55 or re-strict the number of commer-cial vehicles that may be as-sociated with a home-basedbusiness use. For example, theCity of Albany zoning ordi-nance provides that not morethan one commercial vehicleshall be permitted in connec-tion with any home occupationand such vehicle shall be stored

51Town of Alfred Zoning Ordinance, Article 2 § 160-92, Signs, supra note28.

52City of Albany Zoning Ordinance, Chapter § 375-106, Home Occupa-tions, supra note 19.

53City of Papillion Zoning Ordinance, Article IV § 205-45, supra note 36.54Town of Old Saybrook Zoning Ordinance, Article 1 § 303-8(F), supra

note 22.55City of Albany Zoning Ordinance, Chapter § 375-106, Home Occupa-

tions, supra note 19.


in an enclosed garage.56 TheCity of Papillion zoning ordi-nance prohibits the outdoorstorage of materials or equip-ment used in the home occupa-tion other than motor vehiclesused by the owner to conductthe occupation, and it prohibitsthe parking or storage of heavycommercial vehicles in con-nection with the homeoccupation.57 The City of Al-bany also restricts ‘‘mechani-cal, electrical or other equip-ment which produces noise,electrical or magnetic interfer-ence, vibration, heat, glare orother nuisance outside the resi-dential or accessorystructure.’’58 The Town of Pap-illion limits such equipmentsupporting the home occupa-tion to only self-containedequipment within the structureand normally used for o�ce,domestic or householdpurposes.59

Quality of life remains anoverarching theme in the regu-lation of home occupations.For example, the zoning ordi-

nance of the Town of Alfredprovides that home occupa-tions may not adversely a�ectany natural resource or envi-ronmentally sensitive area,such as a wetland, aquifer, wa-tercourse, water body, etc.60 Toaddress quality of life concerns,the City of Papillion providesthat ‘‘[n]o noise, odors, brightlights, electronic interference,storage or other external e�ectsattributable to the home oc-cupation shall be noticeablefrom any adjacent property orpublic right-of-way. No homeoccupation shall discharge intoany sewer, drainageway or theground any material which isradioactive, poisonous, detri-mental to normal sewer plantoperation or corrosive to sewerpipes and installations.’’61 Theordinance in the Town of OldSaybrook states that ‘‘[t]hehome occupation and the con-duct thereof shall not impairthe residential character of thepremises nor impair the reason-able use, enjoyment and value

56Id.57City of Papillion Zoning Ordinance, Article IV § 205-45, supra note 36.58City of Albany Zoning Ordinance, Chapter § 375-106, Home occupa-

tions, supra note 19.59City of Papillion, Zoning Ordinance, Article IV § 205-45, supra note 36.60Town of Alfred Zoning Ordinance, Article 2 § 160-115, Home occupa-

tions, supra note 28.61City of Papillion Zoning Ordinance, Article IV § 205-45, supra note 36.


of other residential property inthe neighborhood.’’62

C. Termination of HomeOccupations

Municipalities may providefor the eventuality of the termi-nation of a permitted homeoccupation. This approach canhelp to ensure that where a spe-ci�c type of home occupationwas permitted, should the oc-cupant desire to change the useto another business, that changewould undergo similar reviewto ensure compatibility withthe neighborhood. In somecases, the municipality maydesire to ensure that the oc-cupant understand that the al-lowed home occupation, oncepermitted, is unique to the ap-plicant only, and that shouldthe dwelling be sold with orwithout the home-based busi-ness, a new owner would needto apply for permission to oper-ate the previous or a new home-based business. For example,the zoning ordinance of theTown of Old Saybrook pro-vides that the application forthe home occupation permitmust be signed by the person orpersons proposing to conductthe home occupation use, thatit shall be accompanied by a

detailed description of the pro-posed use, and that each certif-icate of zoning compliance al-lowing the use willautomatically terminate whenthe applicant no longer residesin the dwelling unit.63

What follows is an exampleof performance criteria for theregulation of home occupationsas contained in the zoning ordi-nance for the City of Deep-haven:

1. No home occupation shall pro-duce light glare, noise, odor or vi-bration that will in any way havean objectionable e�ect upon adja-cent or nearby property.

2. No equipment shall be used inthe home occupation, which willcreate electrical interference tosurrounding properties.

3. Any home occupation shall beclearly incidental and secondary tothe residential use of the premises,should not change the residentialcharacter thereof, and shall resultin no incompatibility or distur-bance to the surrounding residen-tial uses.

4. No home occupation shall re-quire internal or external alter-ations or involve construction fea-tures not customarily found indwellings except where requiredto comply with local and state �reand police recommendations.




5. There shall be no exterior stor-age of equipment or materials usedin the home occupation, exceptpersonal automobiles used in thehome occupation may be parkedon the site.

6. All vehicle parking required forconduct of the home occupationshall be o�-street. Parking/storageof all commercial or non-passenger vehicles used in thehome occupation shall be within afully enclosed building.

7. The home occupation shall meetall applicable �re and buildingcodes.

8. No home occupation activity ofa non-residential character shall bediscernable from any private orpublic street. There shall be noexterior display or exterior signsor interior display or interior signsrelated to the home occupation,which are visible from outside thedwelling.

9. No equipment, machinery ormaterials other than of a type nor-mally found in or compatible witha dwelling unit shall be allowed.

10. Shipments and delivery ofproducts, merchandise or suppliesshall be limited to the hours of8:00 AM and 6:00 PM and shallregularly occur only in single rearaxle straight trucks or smaller ve-hicles used to serve residentialareas.

11. All home occupations shallcomply with the provisions of theCity Nuisance Ordinance.

12. No home occupation shall beconducted between the hours of

6:00 PM and 7:00 AM unless saidoccupation is contained entirelywithin the principal building, ex-cluding attached garage space, andwill not include any on-street park-ing facilities.

13. No retail sales and delivery ofproducts or merchandise to thepublic shall occur on the premisesexcept when incidental to the ser-vices provided.

14. Not over twenty-�ve (25) per-cent of any structure shall be usedfor a home occupation.

15. Product sales associated withprivate social events (i.e., ‘‘Tup-perware parties’’) shall be ex-empted from this section providedthey occur no more than four (4)times per year at any givenresidence.64

The City of Burlington, Ver-mont, requires the followingcriteria to be met for any homeoccupation:

a. A home occupation shall beconducted solely by resident oc-cupants plus no more than one ad-ditional full-time equivalent em-ployee in RL and WRL districtsand no more than two (2) full-timeequivalent employees in otherdistricts. The home occupationshall be conducted entirely withinan existing dwelling unit and/orone enclosed accessory structure;

b. No more than thirty-�ve percent(35%) of the �oor area of said res-idence, including accessory struc-tures, up to a maximum of sevenhundred �fty (750) square feet,

64City of Deephaven Zoning Ordinance, § 1306, supra note 29.


whichever is less, shall be used forsuch purpose;

c. No home occupation shall re-quire alterations, construction orequipment that would change the�re rating of the structure or the�re district in which the structureis located;

d. There shall be no outside stor-age of any kind related to the homeoccupation;

e. There shall be no exterior evi-dence of the conduct of a home oc-cupation except for:

1. Occasional garage/lawn/yardtype sales (up to twice a year notto exceed two (2) days each); and

2. One non-illuminated at-tached parallel sign that shall notexceed two (2) square feet. Noother signs shall be permitted.

f. No home occupation may in-crease vehicular tra�c �ow orparking by more than one addi-tional vehicle at a time for custom-ers or deliveries. All parking shallbe located o�-street and shallmaintain the required front yardsetback per Article 5;

g. No home occupation shall cre-ate sounds, noise, dust, vibration,smell, smoke, heat, humidity,glare, radiation, electrical interfer-ence, �re hazard or any other haz-ard, nuisance or unsightlinesswhich is discernible from any ad-jacent dwelling unit;

h. The home occupation shall beclearly incidental and secondary to

the use of the dwelling for residen-tial purposes and shall not changethe character thereof or adverselya�ect the uses permitted in the res-idential district of which it is apart.

i. Delivery of products and materi-als related to the home occupationby vehicles other than automobilesshall occur no more than once perday;

j. With the exception of one deliv-ery per day, as speci�ed in sub-paragraph (9), no more than one(1) commercial vehicle shall be al-lowed on the premises at any onetime; and

k. There shall be no sale of goodsexcept for goods fabricated on thepremises as part of an approvedhome occupation.65

V. State Legislation

Initially introduced in 2000,a bill in the New Jersey Legis-lature, entitled the ‘‘FamilyHome Occupation Act’’, pro-poses to classify certain homeoccupations as accessory usesneeding no use variances inresidential zones and authorizemunicipalities to limit or ex-clude certain warehousing,manufacturing, or retailing ac-

65City of Burlington Zoning Ordinance, Article 12, Home Occupations.http://www.ci.burlington.vt.us/planning/zoning/znordinance/article12.html(site visited April 2006).


tivities from the de�nition ofhome occupation.66

The Home Based BusinessCouncil has published a modelordinance based on the NewJersey law.67 The model act,also posted on HUD’s Regula-tory Barriers Clearinghouse asa model solution to support af-fordable housing,68 is reprintedbelow.

Title: Family Home Occu-pation Ordinance69

SYNOPSIS

‘‘Family Home Occupations;’’classi�es certain home-occupations as permitted ac-cessory uses needing no usevariances in all residentialzones within the ��;sets forth guidelines to limit orexclude certain warehousing,manufacturing or retailingactivities.

Explanatory Statement:WHEREAS, Corporate re-

structuring and the rise of tele-

communications has led to anexplosion of individuals work-ing out of their homes. And, ac-cording to a national survey, asmany as 40 million peoplework at least part time at home,with about 8,000 home occupa-tions of this nature startingdaily throughout the nation andan indeterminate number in��, and

WHEREAS, Changes in oureconomy and technological de-velopment have facilitated thedevelopment of family homeoccupations. According to theNew Jersey Partnership forWork at Home, over 90% ofsuch businesses do not createthe tra�c, pollution, noise orsafety problems of otherindustries. A new approach tozoning is needed to encouragefamilies, build communities,and safeguard neighborhoods,while retaining the residentialcharacter of neighborhoods,and

66A. 1193 (NJ 2000). Available at: http://www.njleg.state.nj.us/2000/Bills/a1500/1193–i1.htm (site visited April 2006). This bill has not yet been enacted,although it has been reintroduced.

67See, The Home Based Business Council, Inc., Home Based BusinessZoning. Available at: http://www.medusaonline.com/hbbc/zoning.htm (sitevisited April 2006).

68See, Regulatory Barriers Clearing House. Available at: http://www.huduser.org/rbc/search/rbcdetails.asp?DocId=1274 (site visited April2006).

69The Home Based Business Council, Inc., The HBBC RecommendedModel Ordinance Available at: http://www.medusaonline.com/hbbc/ordinance.htm (site visited April 2006).


WHEREAS, it is impossibleto measure the numbers of fam-ilies within the community thatare working at home unobtru-sively and virtually undetect-able, providing secondary orprimary income with no detri-mental impact upon the resi-dential character of the neigh-borhood, and

WHEREAS, the presence ofthese undetectable home oc-cupations has a positive impactupon the family,

E providing a parent or adultguardian at home,

E safeguarding the commu-nity by having neighborsat home during the day-time when empty housesare potential targets forcriminal activities,

E providing an untappedpool of volunteers whenneeded,

E reducing commutation andpreserving air quality, and

WHEREAS, the purpose andintent of planning is to enhancethe quality of life for all citi-zens, and

WHEREAS, as long as homeoccupations do not create a dis-turbance to their neighbors theland use planning powers ofmunicipal government do notextend into the home but con-trol impacts of land use uponneighbors and the surroundingcommunity,

NOW, THEREFORE BE ITRESOLVED, This ordinance

establishes guidelines for�� to follow in the treat-ment of family home occupa-tions, in order to carefully bal-ance the interests of familyhome occupations with theneeds of the residential areas inwhich they operate.

For the purposes of this ordi-nance

‘‘Family home occupation’’means any activity operated forpecuniary gain in, or directedfrom, a residential dwelling orunit by one or more familymembers residing within thatdwelling or unit.

I. A family home occupationshall be an accessory use, notrequiring a use variance pro-vided that:

a. the activity is compatible withthe residential use of the propertyand surrounding residential uses;

b. the activity employs no morethan �� employees other thanfamily members residing in thedwelling or unit;

c. the volume of invitees or guestswho visit the residential dwellingor unit is not in excess of �� perday or what is otherwise custom-ary for residential use in the neigh-borhood;

d. there is no outside appearanceof a family home occupation in-cluding, but not limited to, park-ing, signs or lights; or as is setforth in �� ordinance;

e. the volume of deliveries or truckand other vehicular tra�c is not in


excess of �� per day or, what isnormally associated with residen-tial use in the neighborhood;

f. the activity uses no equipmentor processes that create noise, vi-bration, glare, fumes, odors orelectrical or electronic interfer-ence, including interference withradio or television reception, de-tectable by any neighbors;

g. the activity does not generateany solid waste or sewage dis-charge, in volume or type, whichis not normally associated withresidential use in the neighbor-hood; and

h. the activity does not involve anyillegal activity.

II. In the case of a dwelling unitwhich is part of a common in-terest ownership community,which is a community in whichat least some of the property isowned in common by all of theresidents, the provisions of thissection shall not be deemed tosupersede any deed restriction,covenant, agreement, masterdeed, by-laws or other docu-ments which prohibit a familyhome occupation within adwelling unit.

III. Any standards establishedpursuant to this section shallapply to all residences withinthe district.

IV. At any time, and for duecause, based upon the needs ofthe community, ��,may establish by ordinance

limitations for, or prohibit en-tirely, any family home occu-pations, including but not lim-ited to those involvingmanufacturing, warehousing,retailing or providing services,which it deems would be in-compatible with the residentialzones in which they arelocated. The types of activitiesor services prohibited or lim-ited shall be set forth in detailin the ordinance.

V. The provisions of this ordi-nance shall not be construed aslimiting in any manner thepowers of �� to protectthe health, safety and welfareof its residents, including theinvestigation and eliminationof nuisances.

VI. Conclusion

Municipalities are increas-ingly becoming aware of thedemands to legitimize homeoccupation uses in previouslyresidential-only zoningdistricts. Flexible zoning tech-niques, including special usepermits and performance stan-dards as methods of regulatinghome-based business uses o�eropportunities for creativity inthe design of regulations thatwill respond to the unique de-mands of the character of thecommunity in various residen-tial zoning districts.


Documents

GOVERNMENT LAW CENTER OF ALBANY AW CHOOL ......Twenty-ve years ago, plan-ners and zoning regulations focused on segregating uses in dierent zones. With the ad-vent of computers, decentrali-zation