For most Pennsylvanians, it seems much longer than just over a month ago that Governor Wolf issued orders closing all “non-life-sustaining” businesses and directing all residents to “stay-at-home.”  While these orders have saved countless lives, they have also caused several businesses to either alter or shutdown their operations.  Many employees have been furloughed, laid-off or compelled to work from their homes.

Fortunately, modern technology has enabled certain office employees to continue working, not in their office buildings, but from their home offices.  These new home offices may be nothing more than unfinished basements or converted dining rooms, spare bedrooms or even kitchen tables.  These home office activities and functions are considered a form of home-based businesses or occupations (HBBs) as defined, permitted and regulated by most municipal zoning ordinances.  In many instances, new HBBs have been quite successful.  Therefore, while the Governor’s orders are not likely to remain in place in perpetuity, many businesses are considering modifying their operations to support increased use of HBBs even after the orders are lifted.

Many of the municipal HBB regulations were adopted several decades ago and may not reflect modern community planning, business or technology trends. In 2002, the Pennsylvania Municipalities Planning Code (MPC) was amended to define “no-impact home-based businesses” and require that all municipal zoning ordinances permit these uses by right in all residential zoning districts.  The MPC defines a “no-impact home-based business” as:

a business or commercial activity administered or conducted as an accessory use which is clearly secondary to the use as a residential dwelling and which involves no customer, client or patient traffic, whether vehicular or pedestrian, pickup, delivery or removal functions to or from the premises, in excess of those normally associated with residential use.

These businesses are subject to certain standards that generally include:  (i) compatibility with residential uses; (ii) no non-family, resident employees; (iii) no retail display, sales or substantial storage of goods; (iv) no outside appearance of the business including parking, signs or lighting; (v) no detectable noise, vibration, glare, fumes, odors or electrical or electronic interference; (vi) no solid waste or sewage discharges that are not normally associated with residential uses; (vii) permitted only within dwellings and not exceeding 25% of habitable floor area; and (viii) not involving illegal activity.

Pennsylvania’s “no-impact home-based business” provision is a positive step toward supporting office type work-from-home activities.  However, with the required recent increase in HBB uses and an anticipated larger amount of ongoing HBB uses post-COVID-19, communities should consider examining and possibly modernizing their municipal zoning ordinance provisions to encourage, promote and permit a wider range HBBs.

In fact, Olivia Gonzalez and Nolan Gray have published an interesting and timely report entitled “Zoning for Opportunity:  A Survey of Home-Based-Business Regulations,” in which they examine the history of and current municipal approaches to regulating HBBs.  In addition, they suggest ways that municipalities can “more effectively regulate HBBs without stifling innovation and economic opportunity.”  Their suggestions include:  (i) phasing out “customary” language that only permitted specific occupations that traditionally took place in the home; (ii) tying all performance standards to measurable health, safety, and welfare impacts; (iii) creating a permit-free category for HBBs with no impact on neighbors; (iv) offering flexible review and permitting for unconventional HBBs; and (v) developing profession-specific regulations that address important risks without making compliance overly burdensome.  These suggested revisions can only help to enable the Commonwealth to experience a speedier and more robust economic recovery.

HBBs are not going away and, if anything, we will see more HBB uses after the Governor’s order is lifted than existed before COVID-19 struck.  Accordingly, an opportunity for municipalities to take a proactive approach to zoning exists and we suggest that each municipality considers its options and what is best for its residents.  Please feel free to contact any member of the McNees Wallace & Nurick Land Use Group for assistance with any land use or development issues or if you have any questions regarding this post.