House Shows Are They A Valid Home Occupation

Recently I read an article on Lexis through the APA website about a couple who opened their homes to a broad group of friends on weekends for what were considered house shows. The couple were musicians. On a series of weekends they invited people, for a fee, to visit their home and listen to music. Ostensibly the music was performed by the couple living on the property. As part of the show they also sold CD’s of their music. The couple was shut down as being beyond the definition of a Home Occupation. They attempted to change the business model, no longer requiring payment, but rather hosting pot luck meals with donations requested, and CD’s still for sale. This business model also did not pass muster, they were shut down, taken to court and ultimately lost.

Soon thereafter I saw the following article in the Boston Globe (In the house) which illustrated the concept was far more widespread than I had thought. This got me to thinking, is a house show a valid form of home occupation? Why should it be treated differently than the painter, potter or jeweler who produces art for sale? Especially if we allow the painter, potter or jeweler to have a sales area?

Let’s think about it in the case of the folk singers (the shows listed in the Globe article far exceeds the at home musician). They live in the house. They write and produce their own music. They invite people to their homes/studios to “view” and “purchase” their art. How is this any different to a painter who has a studio and gallery?

Mark Bobrowski recognizes the complications of Home Occupation in his Handbook of Massachusetts Land Use and Planning Law, noting:

A home occupation is a slippery concept subject to a wide interpretation. Many ordinances or by-laws that allow home occupations go on to state specific types of activities that qualify for consideration. Even in these instances, a proposed use not specifically listed may result in a controversy.

Bobrowski points out that, in Seaman v. Zoning Board of Appeals, the court held that a realty office was not a home occupation, while no one would argue that a salesman could use their home to line up sales calls or an engineer could not draw plans from the home. Similarly he notes that while a beauty shop may be a home occupation, a barbershop may not be.

A few years back, there was a similar controversy in the Tampa, Florida area. That particular case involved an internet business. No external changes to draw attention to the business, and all the paid employees lived on the property. The business turned out to be an adult use in a residential zoning district. The town involved shut down the business. However, given the common standards applied to home occupations, no exterior signs of a business being the top one, the question would be whether this use was closer to the real estate office or the salesman.

These distinctions clearly generate the idea that, we as planners, need to clearly consider how we approach home occupations. Determine the limits we want to place on business being carried out in residential zoning districts and determine just how involved we want to be in otherwise invisible businesses.

Your thoughts?