The re-localization of commerce and production in the sharing economy brings up interesting considerations related to zoning. Twentieth century zoning laws have separated home life from work life by dividing cities into separate residential, commercial, industrial, and agricultural zones. We have done this to prevent the impacts of large scale agriculture, and large scale industry, and large commercial activities from causing a nuisance and encroaching on our quiet home lives. But this means our entire zoning framework has been built on the assumption that things tend to happen on a large scale, and this framework now makes it difficult to engage in small-scale, localized production, such as urban agriculture and cottage industries. Simply put, land use laws have not created an ideal space for small, sustainable, localized livelihoods.
Zoning serves a distinct set of purposes. Other regulations are generally designed to protect individual consumers or professionals, whereas zoning is designed to protect resources and communities. In that respect, what matters is not whether an activity has the potential to harm an individual, but whether the activity is likely to generate an undesirable atmosphere or nuisance. For ease of categorization, many planning codes prohibit most or all commercial, industrial, or agricultural activities in residential neighborhoods, under the assumption that the impact will likely be undesirable. This blanket prohibition on certain categories of activities can also stamp out necessary and desirable sharing activities. When our sharing activities begin to creep into the grey areas and move toward the commercial and public ends of the spectrum, it’s quite possible that zoning regulations could block the activities. For example, many zoning codes prohibit the operation of hotels in most residential neighbors; the definition of hotel often is so broad that it includes any situation where a person pays to stay in another person’s home for fewer than 30 days.
However, given the underlying goals of zoning, what matters is not whether an activity is commercial, but the actual impact of the activity. In coming years, it’s important for citizens all over the country to begin lobbying local governments to change zoning laws and create a more friendly space for sharing economies. This will often involve creating exemptions for low impact and low risk activities. For a much longer list of policy recommendations, see Janelle Orsi’s 20-part article series on Shareable.net, entitled “Policies for a Shareable City.” 1
Sharing As an “Accessory Use” 2
Even without changing the laws, there’s room to argue that we have a right to share in our residential neighborhoods. “Accessory use” is a term that we should all get comfortable with, since it’s a window to arguing that we have a protected right to engage in certain sharing activities. “Accessory use” is a zoning term that, in the residential context, refers to the ways that we customarily and incidentally make use of our homes. For example, there is rarely anything in our zoning ordinances that explicitly allows us to have visitors, but our right to do so is protected by the fact that such an activity is a customary use of our home. Sharing, under many circumstances, is an accessory use. Having a dinner party, having a houseguest, lending a tool to your neighbor – these are natural and customary things we all do as part of making a home.
In addition to being customary, an accessory use must be incidental to the primary use of the property as a home. The activity of receiving visitors should never become so frequent or large in scale that it overtakes the primary residential use. Furthermore, having visitors must be related to one’s own residential use of the property. There are many court cases that examine what is or is not related, incidental, customary, and so on. For example, in a 1958 New York case, Facci v. City of Schenectady, 3 a homeowner was denied the ability to park a commercial vehicle at his house, since parking the vehicle was not related to his residential use of the property. At the same time, it might have been fine for that vehicle to park there if the driver was there for a social visit, which is related to the residential use. That’s just one example of the way courts think about the issue.
Having social guests is related to a resident’s enjoyment of the home. But what about having a series of total strangers pay to rent your room – is that an accessory use? The sharing movement will be aided, somewhat, by the fact that definitions of accessory use developed during times when people really did share a lot more. After all, where DID travelers stay in the days before hotels? They often stayed with complete strangers, and usually offered some form of compensation. It would be worthwhile to comb through accessory use cases to determine how various sharing activities fit in to courts’ and planning departments’ interpretations of accessory use.
- The Policies for a Shareable City article series is available at: http://www.shareable.net/blog/policies-for-a-shareable-city#index ↩
- This short section has been adapted from an article Janelle Orsi wrote for Shareable.net, entitled “Airbnb Debacle Uncovers Collaborative Consumption’s Legal Paradox,” August 10, 2011. ↩
- Facci v. City of Schenectady, 13 Misc.2d 247 (Sup. Ct. Schenectady County, NY 1958). ↩