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UNTRANSIT: REMOTE WORK AND THE

TRANSFORMATION OF ZONING

Stephanie M. Stern*

Remote work is poised to transform land use law by untethering labor from

centralized workplaces and blurring the boundaries between work and home. Tra-

ditionally, land use law and local governments have focused on separating work

from home through the conduit of transit. This Article argues that the division of

work from home in land use law and the accompanying transit mindset have

stunted the local role in remote work—or untransit—as well as scholarly attention

to the implications of remote work. To remedy this gap, I advocate a shift from land

use law’s position of (at best) tolerating remote work toward policies to support

remote work. For example, local government can espouse remote work via zoning

reforms, amenities such as work centers, and, perhaps most impactfully, digital

connectivity. The Article also considers concerns that may arise as remote work

expands. I offer suggestions for localities to mitigate possible adverse effects on

economic and racial equity and urge re-thinking the conventional concerns that

remote work will harm labor productivity, gender parity in the workplace, or the

vaunted position of cities.

INTRODUCTION ............................................................................................ 80

I. PRIVILEGING TRANSIT OVER REMOTE WORK: MODERN DISPARITIES,

HISTORIC ORIGINS ............................................................................ 84

A. Disparate Local Investment in Transit vs. Untransit ................. 85

B. The Historical Origins of Separating Work from Home Through

Transit and Zoning .................................................................... 88

II. THE ADVANCE OF REMOTE WORK ......................................................... 92

A. The Rise of Remote Work ......................................................... 92

B. Inter-Local Competition: Resuscitating Tiebout ....................... 97

C. Housing Affordability via Dispersion ....................................... 99

D. Other Benefits .......................................................................... 101

III. BEYOND TRANSIT: LOCALIZING REMOTE WORK ................................ 103

* Professor of Law, Chicago-Kent College of Law. I thank the participants in the Northwest-

ern School of Law Faculty workshop, the Chicago-Kent Works in Progress lectures, and Felice

Batlan, Doug Godfrey, Dan Tarlock, and Ed Lee for their helpful comments.

80 STANFORD LAW & POLICY REVIEW [Vol. 33:79

A. Local Institutional Competence: Scale, Variability, and

Experimentation ...................................................................... 103

B. Public Funding of Private Business: The Local vs. Private

Role .......................................................................................... 106

C. Public Choice Barriers ............................................................. 108

D. State and Federal Role: Incentive Misalignments, Regulatory

Backstops, and Funding ........................................................... 109

IV. UNTRANSIT POLICIES: OPTIONS FOR REMOTE WORK ZONING AND

SUPPORT .......................................................................................... 111

A. Digitizing Local Land Use Law .............................................. 112

1. Broadband Quality and Access .......................................... 112

2. Local Policing and Remote Work ...................................... 115

B. Zoning Reforms for Remote Work .......................................... 117

C. Incentive Zoning for Remote Work Centers ........................... 119

D. Mixed-Use Zoning ................................................................... 122

E. Relocation Incentives for Remote Workers ............................. 122

V. THE LOCAL ROLE IN REMOTE WORK: CONSEQUENCES AND

CONCERNS ...................................................................................... 123

A. Gender and Career Advancement ............................................ 124

B. Equity Troubles: Subsidizing Remote Work Amenities ......... 126

C. Productivity ............................................................................. 128

D. Undermining Cities? ................................................................ 130

CONCLUSION .............................................................................................. 131

INTRODUCTION

Since the movement from an agrarian to an industrial economy, the separa-

tion of business from residential property has been a central aim of zoning laws,

comprehensive plans, and nuisance law.

Accordingly, land use policy and fund-

ing have focused heavily on transit as the conduit between work and home. Lo-

cal, regional, state, and federal governments have planned and subsidized trans-

portation networks that shuttle people between work and home, with laudable

attention in recent years to the environmental benefits of lower-carbon mass

. See William A. Fischel, An Economic History of Zoning and a Cure for its Exclusion-

ary Effects, 41 URB. STUD. 317, 320-30 (2004).

March 2022] UNTRANSIT 81

transit.

In contrast, local government has played a minimal, and at times ob-

structive, role in planning, zoning, and providing amenities for remote work.

Scholars have critiqued zoning prohibitions of home-based businesses and pro-

posed less restrictive alternatives.

However, there has not been an account of

how transit-oriented land use law might support working from home, rather than

merely tolerate it.

From white collar professionals finishing work in the evenings to part-time

sellers on eBay, it is increasingly uncommon for a household’s paid work to be

performed entirely at a centralized, commercial work site. Most workers do some

work either from home or nearby (i.e., not at a job site) and a significant number

work entirely from home.

The most sought-after schedules for U.S. workers,

and perhaps the most productive, are hybrid schedules that split the week be-

tween work at home and a centralized job site.

The revolution in information

and technology, as Ravi S. Gajendran and David A. Harrison observe, “has com-

pelled firms to unbind time and task from place.”

Most recently, the coronavirus

pandemic has dramatically increased the number of Americans working re-

motely and illuminated the astounding amount of work that can be performed

from home.

. See Jonathan L. Gifford, Transportation Finance, in THE OXFORD HANDBOOK OF

STATE AND LOCAL GOVERNMENT FINANCE 594, 595 (Robert D. Ebel & John E. Petersen eds.,

2012) (“A unifying theme that is observed in all modes is the intergovernmental nature of

transportation spending.”); Juita-Elena (Wei) Yusuf, Lenahan O’Connell & Sawsan

Abutabenjeh, Paying for Locally Owned Roads: A Crisis in Local Government Highway Fi-

nance, 16 PUB. WORKS MGMT. & POL’Y 250, 252-57 (2011) (describing an increase in locally

owned roads and devolution of highway financing responsibility from the states to the locali-

ties).

. See infra Part I.A.

. See Nicole Stelle Garnett, On Castles and Commerce: Zoning Law and the Home-

Business Dilemma, 42 WM. & MARY L. REV. 1191, 1236-44 (2001) (critiquing prohibitions on

home businesses in residential zones); Patricia E. Salkin, Zoning for Home Occupations: Mod-

ernizing Zoning Codes to Accommodate Growth in Home-Based Businesses, 35 REAL EST.

L.J. 181, 189-95 (2006) (offering a proposal for using performance zoning to regulate home-

based businesses).

. The closest existing scholarly accounts advocate for government subsidies of remote

work centers. See W.C. Bunting, Unlocking the Housing-Related Benefits of Telework: A Case

for Government Intervention, 46 REAL EST. L.J. 285, 286 (2017).

. See infra Part II.A.

. See ANITA KAMOURI, IOMETRICS & KATE LISTER, GLOB. WORKPLACE ANALYTICS,

GLOBAL WORK-FROM-HOME EXPERIENCE SURVEY 29 (2020) (survey finding average preferred

frequency of working from home in the U.S. was 2-3 days in a work week).

. Ravi S. Gajendran & David A. Harrison, The Good, the Bad, and the Unknown About

Telecommuting: Meta-Analysis of Psychological Mediators and Individual Consequences, 92

J. APPLIED PSYCH. 1524, 1524 (2007).

. See Alexander Bick, Adam Blandin & Karel Mertens, Work from Home After the

COVID-19 Outbreak 2 (July 2020) (unpublished manuscript) (on file with Federal Reserve

Bank of Dallas) https://perma.cc/ZF3W-52B2 (finding the percentage of Americans working

entirely from home increased to 35.2% in May 2020, following the COVID outbreak, from

8.2% in February 2020).

82 STANFORD LAW & POLICY REVIEW [Vol. 33:79

Despite the growing role of remote work in labor markets, localities have

been slow to support it through zoning and local goods (e.g., broadband, remote

work centers). The sluggish response of local governments is not surprising in

light of land use history and its effect on mindset and policy. Across the past

century, the spatial division of work and home accomplished through zoning

laws and transit has created a policy baseline that has constructed transit as the

central work-related good provided by localities and truncated the local role in

remote work.

The tethering of labor to place has also propped up cities and

municipal tax revenues, a reason why some cities oppose regional or state poli-

cies to expand remote work.

Remote work policy is needed—and inevitable—as localities confront grow-

ing numbers of remote workers. Already, “zoom towns” have arisen spontane-

ously in certain areas in response to influxes of remote workers.

Localities,

seeking to expand their tax bases and increase home values, will increasingly

court remote workers.

In addition to the growing demand for remote-work

friendly localities, there are also a number of societal benefits to remote work. In

particular, remote work is likely to improve average housing affordability by

creating more housing options for workers who commute less frequently, or not

at all, to centralized workplaces and decreasing housing prices in large cities.

In addition, the untethering of work from centralized workplaces should spur

welfare-enhancing gains to local efficiency as localities compete for increasingly

mobile residents.

There are unique advantages to supporting remote work at the local level.

Local governments typically have the power and proximity to zone land and tax

residents to finance local-scale goods.

Compared to state or federal remote

. See Andre Sorensen, Taking Path Dependence Seriously: An Historical Institutional

Research Agenda in Planning History, 30 PLAN. PERSP. 17, 21-25, 31-33 (2015) (describing

scholarly history and research questions on path dependence in local land use law).

. See, e.g., Carly Graf, Mayor London Breed: We ‘Cannot Support’ MTC Telecom-

mute Mandate, S.F. EXAM’R (updated Oct. 14, 2020, 6:32 PM), https://perma.cc/7UGZ-

KAUS. It is possible that some localities will shy away from promoting remote work to protect

the higher tax revenues they receive from commercial compared to residential property. This

seems unlikely, however, because increased restaurant and retail spaces and higher residential

property tax revenues from an influx of remote work often offset or exceed losses.

. Greg Rosalsky, Zoom Towns and the New Housing Market for the 2 Americas, NPR

(Sept. 8, 2020, 6:30 AM ET), https://perma.cc/8J5L-7V3T.

. Some localities, realizing the potential of remote workers to revitalize their commu-

nities, are beginning to experiment with incentives to attract them. See, e.g., Sarah Holder,

Paying Remote Workers to Relocate Gets a Pandemic-Era Boost, BLOOMBERG (June 23, 2020,

12:38 PM PDT), https://perma.cc/QN99-TXB2.

. See infra Part II.C.

. See infra Part II.B.

. See Euclid v. Amber Realty Co., 272 U.S. 365 (1926) (affirming constitutionality of

zoning power delegated from the state of Ohio to the village of Euclid); WILLIAM A. FISCHEL,

THE ECONOMICS OF ZONING LAWS: A PROPERTY RIGHTS APPROACH TO AMERICAN LAND USE

CONTROLS 22 (1985) (finding that “[z]oning is one of the community’s ‘police powers,’ pur-

suant to state enabling acts which delegate the zoning power to local government.”); Charles

March 2022] UNTRANSIT 83

work laws, local action can respond, albeit imperfectly, to variability in the prev-

alence and type of remote workers and the differing needs of residents in various

localities. Localities can also offer decentralized experimentation with remote

work policies, an important point in light of uncertainties attending the shift to

remote work. The localization of remote work policymaking envisioned in my

account is robust, but not exclusive, and operates in parallel to remote work pro-

vision by private firms and other levels of government.

Local support for remote work can take a number of forms. Depending on

resident needs and local resources, local governments’ role in remote work could

include zoning protection for remote work and home businesses, public and pri-

vate remote work centers, and increased mixed-use zoning to provide proximate

retail and dining amenities for home workers.

Because local government typi-

cally lacks the nimbleness and efficiency of markets, reducing zoning and other

local regulatory barriers for private providers of remote work amenities and real

estate is important. Highly motivated localities, and in some cases states, are also

experimenting with incentives to attract remote workers, particularly from the

technology sector.

Likely the most impactful change will be to increase local

provision of internet connectivity and cyber-security, moves that dovetail with

the growing interest in digitized “smart cities.”

Localities will face challenges to zoning and supporting remote work, in-

cluding limited fiscal capacity to support remote work and opposition from in-

terests that stand to lose from increased remote work.

In some cases, state or

federal government may need to provide funding to incentivize localities to sup-

port remote work when local governments cannot capture the full benefit of their

investments (e.g., global carbon reduction from telecommuting). In other cases,

regulatory backstops by state or federal government may be necessary to prevent

extra-local harms from remote work, such as sprawl from the dispersal of remote

workers to outlying metro or rural areas. In addition, the growth of remote work

M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416, 424 (1956) (contend-

ing that political decentralization to local-scale governments can increase economic effi-

ciency).

. See infra Part IV.B-D.

. See infra Part IV.E.

. The “smart city” literature has a lesser focus on suburban and rural local govern-

ments, localities that I encompass in the call for greater support of remote work. For more

detail on smart cities, see generally STEPHEN GOLDSMITH & SUSAN CRAWFORD, THE

RESPONSIVE CITY (2014) (arguing that local governments can gather, analyze, and share data

at an expanded scale; improve management of local employees; and optimize local infrastruc-

ture via technology); ANTHONY M. TOWNSEND, SMART CITIES: BIG DATA, CIVIC HACKERS,

AND THE QUEST FOR A NEW UTOPIA (2013) (describing the use of the smart city approach to

improve local services and meet challenges of massive and increasingly interconnected met-

ropolitan areas).

. See infra Part III.D (describing limited local fiscal capacity); Saul Levmore, Interest

Groups and the Problem with Incrementalism, 158 U. PA. L. REV. 815, 817 (2010) (describing

how piecemeal changes in law can “rearrange[] the constellation of supporters and opponents

of further moves and gives organized interest groups reason to realign themselves in response

to incremental change.”).

84 STANFORD LAW & POLICY REVIEW [Vol. 33:79

and local provision of remote work zoning and goods may exacerbate economic

and racial inequities and weaken the position of some large cities.

This Article contends that land use policy has neglected remote work and

advocates for expanding the local government role to include supporting remote

work, rather than merely tolerating it. Part I describes the non-neutral baseline in

land use law, which focuses on transit as the conduit between spatially separate

workplaces and homes and affords little attention to zoning and providing local

goods for remote work. This “transit mindset” arises from historical develop-

ments, such as the advent of the streetcar and the use of transit and zoning to

impede suburban racial integration. Part II examines the rise of remote work and

its inevitable impact on land use law, as well as the social benefits of remote

work for housing affordability and local efficiency. Part III examines the case

for “localizing” remote work and describes the advantages and challenges of lo-

cal zoning and provision of goods for remote work. Part IV offers examples of

zoning reforms, critical services, and desirable amenities that localities might

provide for remote workers, with a particular focus on internet connectivity. Fi-

nally, Part V considers concerns and potential objections to promoting remote

work at the local level, including equity, impacts on cities, and effects on labor

productivity. Of note, throughout the Article, the terms work from home, tele-

commuting, and remote work refer interchangeably to individuals working reg-

ularly, though not necessarily exclusively, from their residences or private or

public community spaces (e.g., remote work centers, coffee shops, and libraries).

I. PRIVILEGING TRANSIT OVER REMOTE WORK: MODERN DISPARITIES,

HISTORIC ORIGINS

Despite the fact that remote work has increased dramatically across the past

three decades, it remains outside the central purview of local government.

While local governments and regional transit authorities invest mightily in roads,

transit infrastructure, and mass transit, they generally fail to fund, plan, or zone

for remote work. This orientation is the byproduct of not only current forces but

historical ones. From its earliest inception, land use law served to enforce the

separation of work from home created through the development of streetcars and

eventually other forms of transit.

This history has begot a plethora of zoning

. Notably, the increase in remote work appears to be a permanent one that localities

will grapple with for the foreseeable future. For example, the current data indicate that in-

creased remote work levels from COVID will not revert to their pre-pandemic baseline. See

Jose Maria Barrero, Nicholas Bloom & Steven J. Davis, Why Working from Home Will Stick

16-22 (Nat’l Bureau of Econ. Rsch., Working Paper No. 28751, 2021).

https://perma.cc/GV89-6Z59 (arguing that remote work will persist after pandemic based on

survey finding that substantial number of employees plan to continue some remote work,

access to technology had improved, and fears of virus exposure lingered).

. See FISCHEL, supra note 1, at 320-28; SAM BASS WARNER, JR., STREETCAR SUBURBS

72-75 (2d ed. 1978) (describing the role of railroads and streetcars in Boston in separating

homes from work and upper-class homes from lower-income ones).

March 2022] UNTRANSIT 85

laws, policies, and subsidies that favor transit to work over remote work and

created a non-neutral baseline—one that has propped up both cities and transit.

As a result, land use law has lagged behind the shift toward remote work by

offering scant support for working from home and in some cases maintaining

zoning laws that actively forbid it.

A. Disparate Local Investment in Transit vs. Untransit

The funding and expertise devoted to transit dwarf the meager—and in many

localities, non-existent—local role in remote work and reflect a strong local bias

toward transit. Local governments, as well as state and federal governments, pro-

vide and subsidize transit and transit infrastructure. There are 3.2 million miles

of locally owned roads nationwide.

In the face of declining federal and state

funding, local governments provide forty-seven percent of transit funding

through property and other local taxes as well as fares and user fees, transporta-

tion agency funds, and bond revenues.

Fares and tolls are not adequate to fund

transportation costs, leaving localities and regional transit authorities with a

heavy financial burden.

This burden does not end with construction. Nation-

wide, localities spend over nine billion annually operating transit systems.

In addition to constructing and operating transit, localities engage in exten-

sive and ongoing planning for roads, bus routes, subway and light rail stops, bike

paths, seaports, and airports, often in partnership with other localities or the state.

New transportation requires congestion analysis, planning for infrastructure ad-

jacent to or associated with transit, and rezoning or the creation of transit overlay

zones.

Transit planning frequently entails oversight by federal, regional, or

state authorities. For example, Oregon’s Transportation Planning Rule requires

. See Garnett, supra note 4.

. See Adie Tomer & Joseph W. Kane, Localities Will Deliver the Next Wave of Trans-

portation Investment: Federal and State Policymakers Can Do More to Support Local Efforts,

BROOKINGS (Jan. 2018), https://perma.cc/47VW-CXCT.

. See AM. PUB. TRANSP. ASS’N, 2019 PUB. TRANSP. FACT BOOK 24 (70th ed. 2019),

https://perma.cc/6F22-T7FC [hereinafter AM. PUB. TRANSP. ASS’N 2019]. The trend is for

fewer intergovernmental grants by federal and state governments to localities, particularly for

highway funding. See Tomer & Kane, supra note 24.

. AM. PUB. TRANSP. ASS’N, 2013 PUBLIC TRANSPORATION FACT BOOK 28 (64th ed.,

2013), https://perma.cc/DCD2-Q6VR (“T]ransit operations are funded by passenger fares,

other transit agency earnings, and financial assistance from state, local, and federal govern-

ments. . . Passenger fares and other agency earnings account for 38 percent of operating reve-

nues.”).

. AM. PUB. TRANSP. ASS’N 2019, supra note 25, at 29 (citing 2011 data showing over

9 billion spent by localities, including local and transit authority funds from passenger fare

revenues, parking revenues, advertising revenues, and bond revenues). Notably, most federal

grants fund only construction, not operation or maintenance, of transit. See Tomer & Kane,

supra note 24.

. See Anastasia Loukaitou-Sideris, A New-Found Popularity for Transit-Oriented De-

velopments? Lessons from Southern California, 15 J. URB. DESIGN 49, 65 (2010) (discussing

utility of transit overlay zones).

86 STANFORD LAW & POLICY REVIEW [Vol. 33:79

localities to create a transportation system plan for future road and transit infra-

structure.

Localities must also assess whether ordinance amendments or zoning

changes will strain transportation capacity; if so, their plans must augment trans-

portation or alter land uses to restore balance.

As part of transit planning, some state and local laws promote “transit-adja-

cent” and “transit-oriented development.” Transit-adjacent development refers

to placing residential spaces proximate to transit, particularly public transit.

Transit-oriented development seeks to mix higher-density residential develop-

ment and commercial spaces within walking distance of a transit stop.

Locali-

ties have created transit-oriented and transit-adjacent development zones that

provide incentives to developers by allowing higher density for new residential

developments close to transit stops, reducing the minimum requirements for

parking spots, decreasing the required amount of open space, and streamlining

the development approval process.

States and localities have also increased the

attractiveness of transit-oriented and transit-adjacent development projects via

direct subsidies, as California has done with Proposition 1C, which funds loans

for developers and grants for transit agencies to create infrastructure around

transit stops.

In contrast to the expenditures and staff resources devoted to transit, locali-

ties rarely subsidize or plan for remote work. The vast majority of localities do

not provide important remote work services (e.g., police trained for cybersecu-

rity) or desirable amenities (e.g., workspaces), or offer incentives for private

businesses supplying these goods. Only a small number of municipalities provide

free municipal broadband, a key work from home service.

Rather than espous-

ing remote work, some localities have created zoning ordinances that severely

restrict home businesses.

Other localities have adopted vague or complex ordi-

nances that leave opaque the legality of different kinds of home work.

. OR. ADMIN. R. 660-012-0015 (3)-(7) & 660-102-0000(1)(i) (2006).

. Id.

. See JOE HOLMES & JAMES VAN HEMERT, TRANSIT ORIENTED DEVELOPMENT, RSCH.

MONOLOGUE SERIES OF ROCKY MOUNTAIN LAND USE INSTITUTE 4 (2008),

https://perma.cc/G5XX-UW3B .

. See Mattias Qviström & Jens Bengtsson, What Kind of Transit-Oriented Develop-

ment? Using Planning History to Differentiate a Model for Sustainable Development, 23 EUR.

PLAN. STUD. 2516, 2516-17 (2015) (reviewing definitions of transit-oriented development).

Transit-oriented development is usually within a half-mile radius of a transit station. See

HOLMES & VAN HEMERT, supra note 31, at 4.

. See HOLMES & VAN HEMERT, supra note 31, at 5, 7. For example, the city of San

Jose, California requires that residential developments within 2,000 feet of transit stops must

have twenty units per acre in suburban areas and forty-five units for acre in urban locations.

See id. at 5.

. See Loukaitou-Sideris, supra note 28, at 61.

. See infra Part IV.A.1.

. See Garnett, supra note 4.

. See infra Part IV.B.

March 2022] UNTRANSIT 87

The neglect of remote work has occurred despite the fact that many localities

and regional agencies employ a planning process called transit demand manage-

ment (TDM) that explicitly recognizes remote work. TDM seeks to reduce peak

period traffic and use of solo driver cars for transit and to provide information

and incentives to use congestion-reducing alternatives.

TDM reports and guid-

ance documents state that planners should consider remote work as a congestion-

reduction strategy.

However, in practice TDM has focused on requiring busi-

nesses to support carpooling, van pools, or guaranteed ride home programs, or

construct transit-oriented development in exchange for development approvals.

As a result, TDM planning and resources have been channeled toward conges-

tion-relief initiatives that are unpopular with workers and employers, such as

carpooling, at the expense of remote work options favored by workers.

Notably, private real estate developers have been more responsive than local

governments to remote work trends. Some new residential developments, often

apartment buildings or condominiums, include resident business centers, reading

rooms, or work/café spaces.

These amenities are found most often in high-end

or luxury residential developments that cater to professional residents, a group

more likely to work at home than blue-collar workers.

Workers in more modest

rentals, older condominiums, and single-family homes usually lack access to

such amenities.

. See Genevieve Giuliano, Transportation Demand Management: Promise or Pana-

cea?, 58 J. AM. PLAN. ASS’N 327, 327 (1992).

. See Stephen Crim, Transportation Agencies: Focus Less on Telework, MOBILITY

LAB (Nov. 24, 2014), https://perma.cc/ZTC8-ZM67.

. See Carolyn P. Flynn & Lawrence Jesse Glazer, Ten Cities’ Strategies for Transpor-

tation Demand Management, 1212 TRANSP. RSCH. REC. 11, 11-21 (2007) (reviewing TDM

strategies in ten cities, all of which focused on transit, parking, and ride-sharing); Giuliano,

supra note 38 (describing three case studies of TDM approaches focused on transit; SMART

GROWTH AM., GRAND RAPIDS’ MICHIGAN STREET TRANSPORTATION DEMAND MANAGEMENT

STRATEGY 1-3 – 1-6 (2013) (providing examples and case studies of transit initiatives in

TDM).

. Cf. Giuliano, supra note 38, at 327 (concluding that TDM “has had only a small

impact on traffic, but has had a significant impact on workers and their households” with re-

spect to time, convenience, childcare, and other factors). One TDM advocate has suggested

that agencies not devote resources to promoting remote work because there is already support

for remote work among employers and workers. While government should be leery of subsi-

dizing innovations that will occur without subsidy, it makes little sense to create legal infra-

structure for congestion and pollution reduction strategies that are strongly and organically

unpopular with citizens. See Crim, supra note 39.

. See, e.g., Leading Developers Pile on High-End Amenities to Attract Tenants,

AFFORDABLE HOUS. FIN. (Jan. 1, 2011),https://perma.cc/JCS5-LGRF; see also John Caulfield,

5 Intriguing Trends to Track in the Multi-Family Housing Game, BLDG.

DESIGN+CONSTRUCTION. (Jan. 31, 2015), https://perma.cc/Y3H6-BMBN?type=image. .

. See The Impact of Work-from-Home and Hybrid Offices on Real Estate Trends:

For Many, the COVID Pandemic Was an Unprecedented Opportunity to Live Wherever They

Wanted, JEFFERSON GRP., https://perma.cc/284E-E7G6 (archived Feb. 4, 2021) (describing

trend toward luxury condominiums and apartments with zoom rooms, co-working rooms, and

private office spaces).

88 STANFORD LAW & POLICY REVIEW [Vol. 33:79

B. The Historical Origins of Separating Work from Home Through Transit

and Zoning

The separation between home and work in land use law is entrenched in the

United States’ history of industrialization—a history that has created suburbs,

situated cities as economic centers, and privileged transit as the focus of local

planning and subsidy.

As a result of this history, localities typically view transit

as the major work-related amenity they provide to residents. A transit-oriented

view of local government excludes other configurations of work, including re-

mote work and gig work, that have boomed in the past three decades.

The bias

toward a division between work, and the accompanying bias towards transit, has

resulted in policy path dependence, distorting labor markets and likely depress-

ing the number of remote workers.

Supporting working from home has not been the province of land use law

for at least a century. Following the country’s founding, the agrarian economy

focused on farming, typically on large tracts of land where owners and workers

both resided and labored.

By the end of the nineteenth century, industrialization

had begun to increase the size and density of commercial enterprises. Factories

became more numerous and were in close proximity to residences, leading to

dissatisfaction and conflicts. Cultural anxiety about these changes found expres-

sion in architectural and social movements that reinforced the separation of work

and commerce from residential life. The City Beautiful Movement and the Chi-

cago World’s Fair touted the social and aesthetic harmony of carefully executed

public spaces, situated away from factories, shipping yards, and other busi-

nesses.

While pollution, noise, and other disruptions created incentives to separate

homes from factories, transportation innovations enabled this division by allow-

ing residents to move out of the central city. In 1880, a technological innovation,

the electrically-powered streetcar, allowed affluent residents to escape factories

and other commercial enterprises.

Whereas before people needed to live within

walking distance of work or take slow-moving, horse-drawn streetcars, now they

could commute from more distant residential enclaves by much faster electric

. See 2 Leah Boustan, Devin Bunten & Owen Hearey, Urbanization in American Eco-

nomic History, 1800-2000, in THE OXFORD HANDBOOK OF AMERICAN ECONOMIC HISTORY 75,

78, 84-85 (Louis P. Cain, Price V. Fishback & Paul Rhode eds., 2018); Jeremy Atack, Robert

A. Margo & Paul W. Rhode, Industrialization and Urbanization in Nineteenth Century Amer-

ica 2, 6 (Nat’l Bureau of Econ. Rsch., Working Paper No. 28597, 2021).

. See infra Part II.A.

. See ELAINE LEWINNEK, THE WORKING MAN’S REWARD: CHICAGO’S EARLY SUBURBS

AND THE ROOTS OF AMERICAN SPRAWL 9 (2014).

. See Jon A. Peterson, The City Beautiful Movement: Forgotten Origins and Lost

Meanings, 2 J. URB. HIST. 415, 416-41, 430 (1976); Wiliam H. Wilson, J. Horace McFarland

and the City Beautiful Movement, 7 J. URB. HIST. 315, 318 (1981).

. See Fischel, supra note 1, at 320; cf. WARNER, supra note 22, at 26-56 (describing

history of streetcar suburbs and the suburbanization of not only affluent, but more middle-

income homebuyers, as transportation improved).

March 2022] UNTRANSIT 89

streetcars.

The bicycle gained popularity in the 1890s and provided another

means of transport between the city and suburbs. Bicycle commuters would ride

up to ten miles with briefcase attachments on their bikes and “trouser guards” to

protect their work clothes.

In 1910, the development of freight-hauling trucks and passenger buses, and

subsequently the automobile, threatened the division between urban work centers

and suburbs. These vehicles enabled commercial uses and apartments to migrate

to the suburbs by providing affordable, multi-directional transportation.

Wil-

liam Fischel describes how prior to the advent of buses, trucks, and cars, a com-

bination of informal norms, coordination by developers, nuisance law, and cov-

enants were adequate to protect suburban property values and limit exposure to

nuisance or noxious industry.

After the development of trucks and buses, this

was no longer the case.

In response, zoning arrived as a vehicle for “prevent[ing] the invasion of

residential areas by commercial development.”

Commentators and early zoning

advocates of the time argued that zoning would provide assurances that neigh-

borhoods would not be “encroached upon by business” and the “character of dis-

tricts” would be protected.

Localities effectuated a division between work and

home through zoning laws specifying the kinds of uses and structures allowed in

different areas. By zoning land for residential use, industrial use, and other sub-

types of commercial uses, localities could selectively allow businesses that cre-

ated minimal impacts on residential life or generated tax benefits exceeding their

costs.

Importantly, zoning also enabled cities, and later suburbs, to maintain eco-

nomic and racial segregation by reducing housing density (e.g., allowing only

more costly single-family homes) and zoning higher-density and industrial uses

around existing neighborhoods of color.

These forms of zoning increased after

. See HowARD P. CHUDACOFF, JUDITH E. SMITH & PETER C. BALDWIN, THE EVOLUTION

OF AMERICAN URBAN SOCIETY 87-90 (2014). The streetcars were so critical that real estate

developers often subsidized or even built them in order to increase the market for their resi-

dential developments. Fischel, supra note 1, at 320.

. EVAN FRISS, THE CYCLING CITY: BICYCLES IN URBAN AMERICA IN THE 1890S 148-49

(2015). The number of bicycle commuters is not known, but Friss notes they “represented an

important segment of the cycling population.” Id. at 149.

. Fischel, supra note 1, at 321. In light of urban social unrest and contagious disease,

industry businesses hoped moves to the suburbs would improve the situations of their workers.

. See id. at 320-21.

. JOHN M. LEVY, CONTEMPORARY URBAN PLANNING 40 (1994).

. Fischel, supra note 1, at 322.

. See id. at 328 (“To the extent that [business] paid local taxes in excess of the addi-

tional costs of local services it required, business was welcome in suburbs if its neighbourhood

effects were not to noxious or it could be sequestered into a non-residential area of the town.“)

. Allison Shertzer, Tate Twinam & Randall P. Walsh, Zoning and Segregation in Ur-

ban Economic History 14-15 (Nat’l Bureau of Econ. Rsch., Working Paper No. 28351, 2021)

(explaining that in the 1920s cities zoned Black neighborhoods into districts that allowed

higher density development and thus denied Black residents the housing investment gains that

90 STANFORD LAW & POLICY REVIEW [Vol. 33:79

the Supreme Court struck down explicit local segregation ordinances that forbid

renting or selling to Black people on majority-white blocks in Buchanan v. War-

ley.

With segregation ordinances foreclosed, local governments turned to zon-

ing (and private developers to racially restrictive covenants) in order to maintain

racial segregation.

In addition to zoning laws, federal mortgage underwriting also reinforced

the separation of work and home through transit. The government favored lend-

ing in the suburbs, where there were stricter divisions between commercial and

residential zones and many residents commuted to cities.

The FHA even of-

fered guidance to the suburbs on how to defend against commercial encroach-

ment. In the 1930s and1940s, the FHA Underwriting Manual contained explicit

instructions that suburbs should promote the strict separation of land uses

through features such as cul-de-sacs and winding avenues that were inimical to

businesses.

There were racial motivations at play in the FHA’s solicitude toward the

suburbs as well. The FHA Underwriting Manual encouraged the use of racially

restrictive covenants in suburbs, as well as majority-white urban neighborhoods,

and decried the residential mixing of “incompatible racial and social groups.”

Accordingly, the FHA created mortgage risk ratings based on neighborhood ra-

cial composition that effectively funneled lending capital to homogenous white

suburbs.

Thus, the suburbs not only separated (white) homes from workplaces

but also maintained racial segregation.

This history of land use law reverberates to the present day in local zoning

and transit. The segregation of work from home via zoning has persisted, signif-

icantly enabled by transit from residential neighborhoods to urban and business

centers. Only in recent years has the new urbanism movement’s advocacy of

mixed-use zoning made limited progress in lessening rigid zoning divisions and

lower-density zoning produced for white owners); Andrew H. Whittemore, Exclusionary Zon-

ing: Origins, Open Suburbs, and Contemporary Debates, 87 J. AM. PLAN. ASS’N 167, 168-70

(2021) (describing the historical origins of exclusionary zoning in urban and suburban areas).

. Buchanan v. Warley, 245 U.S. 60, 60 (1917); Werner Troesken & Randall Walsh,

Collective Action, White Flight, and the Origins of Racial Zoning Laws, 35 J.L. ECON. & ORG.

289, 292-95 (2019) (overview of racial segregation ordinances).

. See RICHARD W. BROOKS & CAROL M. ROSE, SAVING THE NEIGHBORHOOD:

RACIALLY RESTRICTIVE COVENANTS, LAWS, AND SOCIAL NORMS 39-48 (2013); Shertzer,

Twinam & Walsh, supra note 56, at 6-11 (describing the evolution of local laws and practices

to enforce racial exclusion).

. See Tom Hanchett, The Other “Subsidized Housing”: Federal Aid to Suburbaniza-

tion, 1940s-1960s, in FROM TENEMENTS TO TAYLOR HOMES: IN SEARCH OF URBAN HOUSING

POLICY IN TWENTIETH CENTURY AMERICA 163, 163-67 (John Bauman, Roger Biles & Kristin

Szylvian eds., 2000).

. See id.

. FED. HOUS. AUTH., 1938(a) UNDERWRITING MANUAL §§ 934, 937, 980(1) (1938).

. See id., § 1032; John Kimble, Insuring Inequality: The Role of the Federal Housing

Administration in the Urban Ghettoization of African Americans, 32 L. & SOC. INQUIRY 399,

402- 03, 405, 409-410 (2007).

March 2022] UNTRANSIT 91

intermingling retail and other amenities within residential neighborhoods.

Even

when communities are receptive to mixed-use zoning, it is often cost-prohibitive

to substantially retrofit an existing community to new urbanist design.

Historically rooted biases favoring the separation of work from home and

transit are not the exclusive explanations for local governments’ neglect of re-

mote work. Geographic differences in the prevalence of remote workers and the

availability of private support for remote work play roles as well, as I will discuss

in Part III.

In some regions, there is limited demand for local government in-

vestments in remote work because employers provide adequate remote work sup-

port or residents are content to manage on their own (often subsidized by the

federal home office interest tax deduction

). It is also possible that working from

home is less desirable to localities because commercial property typically gener-

ates higher tax revenue than residential property per square foot.

However, any

loss to commercial tax revenues is likely offset by increases in real estate values,

residential property tax revenues, and economic activity from remote workers

migrating to a locality.

In summary, local governments have focused on providing roads and transit,

and have eschewed similar facilitation of remote work. This observation is not

meant to oppose transit investments, which have economic—and, in the case of

mass transit, environmental benefits— but rather to note the disparity in local

provision of transit versus remote work. As discussed above, this disparity is

rooted in the historic separation of work from home through zoning. Over time,

and without critical examination, land use law has significantly coalesced with

the goal of providing transit and maintaining spatially distinct residences and

workplaces. This does not mean that zoning and provision for remote work will

never arise locally—to the contrary, zoning reforms and remote work support are

slowly appearing in localities.

Rather, it means that the local response has been

more sluggish and less comprehensive than it would have been absent the historic

separation of work from home and transit mindset.

. See generally PETER KATZ, THE NEW URBANISM: TOWARD AN ARCHITECTURE OF

COMMUNITY (1994) (inception and progress of new urbanist movement).

. See ELLEN DUNHAM-JONES & JUNE WILLIAMSON, RETROFITTING SUBURBIA: URBAN

DESIGN SOLUTIONS FOR REDESIGNING SUBURBS 75 (2009) (new urbanist redevelopment of ex-

isting suburbs is more difficult and expensive than new construction).

. See infra Part III.

. 163 U.S.C. § 163(h)(3).

. See Richard M. Bird & Enid Slack, Introduction and Overview, in INTERNATIONAL

HANDBOOK ON LAND AND PROPERTY TAXATION 1, 7 (Richard M. Bird & Enid Slack eds., 2004)

(describing a multi-country investigation concluding that “property taxes are generally heavier

on non-residential (and especially commercial) properties than on residential (single-family)

homes.”).

. See infra Part IV.

92 STANFORD LAW & POLICY REVIEW [Vol. 33:79

II. THE ADVANCE OF REMOTE WORK

Today, zoning laws, governmental focus on transit, and the failure of local

government to support remote work clash with a workforce that is increasingly

untethered from centralized workplaces.

As telecommuting and electronically

mediated gig jobs proliferate, localities will face growing demand for zoning,

connectivity, and remote work amenities from residents and homebuyers. Local

governments will respond to local resident needs for remote work, as they did

over a century ago to industrialization and the electric streetcar. The contention

of this paper, that local land use law should recognize remote work within its

purview, is inevitable, as well as beneficial in some respects. In addition to the

growing demand for remote work, there are social benefits to supporting its ex-

pansion. Chief among these is the capacity of remote work to increase housing

affordability and improve local efficiency by enabling discontented residents to

vote with their feet through relocating.

A. The Rise of Remote Work

The economy and labor force have changed dramatically over the past cen-

tury, and the infrastructure, local services, and zoning designed to serve resident-

workers in the early twentieth century do not adequately meet the needs and de-

sires of this new workforce. There has been an upsurge of jobs in technology,

information, science, and business and a loss of manufacturing jobs.

Innova-

tions such as the internet and, more recently, remote conferencing technologies,

have coalesced work and home just as the invention of the electric streetcar and

automobile once separated them. Indeed, “Zoom,” the first-generation remote

conferencing platform, may be the modern equivalent of the streetcar—a tech-

nological advance that will profoundly alter land use, and land use law.

. See, e.g., Garnett, supra note 4, at 1192-93.

. See Matt Delventhal, Eunjee Kwon & Andrii Parkhomenko, JUE Insight: How Do

Cities Change When We Work from Home?, J. URB. ECON. (forthcoming 2022),

https://perma.cc/B8AS-NQPP (SSRN manuscript at 4-5) (modeling housing affordability un-

der conditions of increased telecommuting).

. See e.g., Timothy F. Bresnahan, Erik Brynjolfsson & Lorin M. Hitt, Information

Technology, Workplace Organization, and the Demand for Skilled Labor: Firm-Level Evi-

dence 2 (Nat’l Bureau of Econ. Rsch., Working Paper No. 7136, 1999),

https://perma.cc/S2GP-YD8U (finding that firms’ increasing use of IT and more sophisticated

technology for customers have created demand for higher-skilled labor); Theodore M. Crone,

Where Have All the Factory Jobs Gone—and Why?, BUS. REV. FED. RES. BANK OF PHILA.,

May/June 1997, at 1, 1 (noting a loss of 2% of manufacturing jobs per year in Pennsylvania,

New Jersey, and Delaware).

. See, e.g., Rebecca Fannin, Zoom Aims to Be the Next Big Platform for Start-Ups to

Build Billion-Dollar Businesses, CNBC (updated June 1, 2020, 3:28 PM EDT),

https://perma.cc/YRK9-JNKV (describing increasing competition in remote conferencing and

Zoom’s recent efforts to innovate its platform).

March 2022] UNTRANSIT 93

The prevalence of remote work in labor markets is sizable, and rapidly grow-

ing. Recent research finds that eight percent of employed Americans work en-

tirely from home, the most extreme of work from home arrangements.

This

finding pre-dates the COVID pandemic shutdowns, which dramatically in-

creased the remote-only workforce.

Because some studies designate only work-

ers with a formal arrangement as working from home, there is underestimation

of the prevalence of remote workers.

Moreover, the potential for working en-

tirely from home is much greater than its present level. A recent paper by Dingel

and Neiman estimates that up to 37% of jobs can be performed entirely at home,

representing 46% of all wages.

Supporting this estimate, 35% of all employed

Americans worked from home during spring 2020 due to the coronavirus pan-

demic.

The pandemic is likely to accelerate the trend of fully remote employ-

ment. As Kate Lister notes, “the genie is out of the bottle . . . .”

Americans who work from home part-time are even more numerous. The

2018 American Time Use Survey found that 24% of employed workers did

“some or all” of their work from home.

A 2016 Gallup poll reported that 43%

of employees spend at least some of their time working in a location different

from their co-workers, with 31% of employees spending 80% or more of their

time working remotely.

This poll did not differentiate the location of the work;

the data presumably encompasses work travel, working from alternate locations,

and working from home. A survey following the coronavirus lockdown in the

U.S. found that 89% of executives anticipate that more than 30% of office work-

ers will continue remote work on a part-time basis and a majority of employees

. Bick, Blandin & Mertens, supra note 9, at 2 (finding 8.2 percent worked entirely

from home in February 2020); see also Gajendran & Harrison, supra note 8, at 1526 (finding

that fewer than 10% of telecommuting employees work remotely full-time).

. See Bick, Blandin & Mertens, supra note 9; Jonathan I. Dingel & Brent Neiman,

How Many Jobs Can be Done at Home? 11-12 (Nat’l Bureau of Econ. Rsch., Working Paper,

Paper No. 26948, 2020), https://perma.cc/EZ45-TTXR (reviewing studies of remote work

prevalence during COVID).

. See Alexandre Mas & Amanda Pallais, Alternative Work Arrangements, 12 ANN.

REV. ECON 631, 634 (2020) (data from the 2014 GSS Quality of Worklife Survey that 26% of

respondents work from home frequently, but only 47% of these workers have a formalized

work-from-home arrangement).

. Dingel & Neiman, supra note 74, at 10.

. Bick, Blandin & Mertens, supra note 9, at 2.

. Work-At-Home After Covid-19 – Our Forecast, GLOB. WORKPLACE ANALYTICS,

https://perma.cc/UNN5-ZD47 (archived Feb. 5, 2022); see also Barrero, Bloom & Davis, su-

pra note 21, at 2 (employees report that their employers plan to allow on average 21.3% of

full workdays at home after the COVID pandemic is over).

. U.S. BUREAU OF LAB. STAT., AMERICAN TIME USE SURVEY SUMMARY—2018

RESULTS 1 (2019), https://perma.cc/G4KG-C9RL.

. Annamarie Mann & Amy Adkins, America’s Coming Workplace: Home Alone,

GALLUP: BUS. J.(March 15, 2017),https://perma.cc/AD6K-XFQP.

94 STANFORD LAW & POLICY REVIEW [Vol. 33:79

state they wish to continue working from home at least part-time.

Telecommut-

ing is now the most rapidly growing form of commuting.

There is also a growing gig economy, although measurement of its magni-

tude has proven difficult due to varying definitions of gig work and the fact that

many workers have multiple jobs encompassing gig and non-gig employment. A

2017 study by the U.S. Bureau of Labor Statistics found that 1.6 million workers,

constituting one percent of total workers, do electronically mediated gig work as

a main job, second job, or additional sideline work for pay.

The study defined

electronically mediated work as short jobs or tasks accessed via websites or mo-

bile apps that connect workers to customers and transfer payment.

The frequency of working from home varies by occupation and tilts upward

on the income scale. Workers with advanced degrees and in professional sector

jobs are disproportionately represented, with 37% of those in management, busi-

ness, and financial operations and 33% of workers categorized in professional

and related occupations doing part or all of their work at home.

The Small Busi-

ness Administration reports that approximately 50% of companies are home-

based businesses, meaning they operate primarily out of the home.

This in-

cludes 70% of information-based businesses, 68% of construction firms, and

65% of professional, scientific, and technical services.

Among federal employ-

ees, 22% perform work at an alternative site, typically their homes, for some

portion of their work week (about half of the employees that are eligible to tele-

work under individual agencies’ guidelines).

A federal statute, the Telework

Enforcement Act, seeks to increase effective telework arrangements and promote

employee work-life balance by requiring annual reports to Congress on telework

programs and utilization for each executive agency.

. Lessons Learned from Remote Working During COVID-19: Can the Government

Save Money Through Maximizing Efficient Use of Leased Space?: Hearing Before the S.

Comm. on Env’t & Pub. Works, 116th Cong. (2020) 15 (testimony of Kate Lister, President,

Glob. Workplace Analytics) [hereinafter Testimony of Kate Lister].

. Katherine Guyot & Isabel V. Sawhill, Telecommuting will Likely Continue long After

the Pandemic, BROOKINGS: UP FRONT (April 6, 2020), https://perma.cc/RPN4-356Q.

. U.S. Bureau of Lab. Stat., Electronically Mediated Work: New Questions in the Con-

tingent Worker Supplement, MONTHLY LAB. REV. (Sept. 2018),https://perma.cc/7BTG-VU8C.

. Id.

. Patrick Coate, Remote Work Before, During, and After the Pandemic: Quarterly

Economics Briefing-Q4 2020, NCCI (Jan. 25, 2021), https://perma.cc/AA3R-CCCR.

. U.S. SMALL BUS. ADMIN., OFF. OF ADVOC., FREQUENTLY ASKED QUESTIONS ABOUT

SMALL BUSINESS 3 (2019),https://perma.cc/83VR-LMMD.. For these statistics, home-based

businesses “operated primarily out of one’s home, but business activities may take place at

other locations as well.” Id. at 3.

. Id. at 3.

. U.S. OFF. OF PERS. MGMT., STATUS OF TELEWORK IN THE FEDERAL GOVERNMENT:

REPORT TO CONGRESS FISCAL YEAR 2018, at 5 (2020), https://perma.cc/H8TR-PPBY.

. 5 U.S.C. § 6506(b)(2)(F) & (b)(1).

March 2022] UNTRANSIT 95

Corporate interest in remote work is high at present, although the availability

of remote work at major corporations has ebbed and flowed in the past.

For

jobs that workers can perform effectively at a distance, expanding to remote en-

ables corporations to recruit the best talent nationally and, in some cases, to pay

less (a practice termed pay localization).

It can also dramatically reduce corpo-

rate real estate costs for offices and other workspaces.

Some companies, in-

cluding Facebook and Twitter, are shifting to a largely remote workforce, and

many others allow remote work on an individual basis.

There are exceptions,

of course, with IBM, AT&T, and Yahoo ordering workers back to the office (pre-

COVID) after long-term policies allowing remote work, citing loss of creativity

and loyalty.

The increasing prevalence of remote work also reflects the overwhelming

preference among the American workforce for a part-time or full-time schedule

of working from home. A recent survey of 2,000 professional workers found that

82% wanted to work from home at least one day per week and 57% wanted to

work from home three or more days per week.

A study of 7,000 applicants for

interviewer jobs at a national call center found that applicants were willing to

give up 8% of their wages on average for the option to work from home.

Nota-

bly, 25% of the applicants were willing to sacrifice 14% of their wages to work

from home, and only 20% opted to work exclusively on-site.

. Remote work may not occur as often as is efficient because of a misalignment in the

incentives of decision-makers. In some businesses, the middle managers who might propose

work from home policies or allow individual employees to work from home are not paid based

on productivity or profits and have incentives to minimize risks. In addition, employers may

reject remote work because of unfamiliarity with needed technology or inability to fund its

upfront costs. See Barrero, Bloom & Davis, supra note 21, at 211 (noting that a Chinese travel

agency studied in an experiment had not previously implemented remote work policies be-

cause it believed it would pay the upfront costs of innovation but private benefits would be

fleeting as competitors copied them and also because senior managers worried about advance-

ment were reluctant to risk a failed remote work initiative).

. See David Streitfeld, The Long, Unhappy History of Working From Home, N.Y.

TIMES (updated Jan. 4, 2021), https://perma.cc/MA4W-FBUU (quoting management professor

John Sullivan that “[w]hen you hire remotely, you can get the best talent around and not just

the best talent that wants to live in California or New York.”); see also Katherine Bindley,

Remote Work Is Reshaping San Francisco, as Tech Workers Flee and Rents Fall, WALL ST. J.

(Aug. 14, 2020, 10:00 AM ET), https://perma.cc/BS24-L9LU.

. Bindley, supra note 91; see also Testimony of Kate Lister, supra note 81, at 16, 20-

22.

. Bindley, supra note 91, at 2.

. Streitfeld, supra note 91; cf. Testimony of Kate Lister, supra note 81, at 25 (noting

these companies were experiencing financial setbacks when they recalled telecommuters).

. Abigail Johnson Hess, People Who Work From Home Earn More than Those who

Commute - Here’s Why, CNBC (updated Oct. 13, 2019, 9:30 AM EDT),

https://perma.cc/YD7K-ZQD3 (describing survey by LinkedIn).

. Alexandre Mas & Amanda Pallais, Valuing Alternative Work Arrangements, 107

AM. ECON. REV. 3722, 3725-26, 3742 (2017).

. Id. at 3742. Interestingly, most workers did not value the ability to set the days/times

of their work or the number of hours of work. Id. However, in another study of Chinese travel

96 STANFORD LAW & POLICY REVIEW [Vol. 33:79

The reasons that workers prefer remote work, especially hybrid remote/in-

person work schedules, are not fully understood. Work-life balance and parent-

ing needs appear to play a role in the demand for work from home flexibility.

Commuting is also an undesirable activity for most workers. The average Amer-

ican worker spends 100 minutes per day commuting, an amount found to have

substantial negative effects on happiness and well-being.

In addition, cost sav-

ings may factor into preferences. It is possible for telecommuting families to save

thousands of dollars annually on commuting costs, dining expenses, and clothing

and dry-cleaning.

100

Objectively, remote work appears to have either a positive or neutral effect

on average employee well-being, although more research is necessary to draw

firm conclusions. A 2007 meta-analysis of the research on the individual effects

of remote work found that telecommuting increased employees’ perceptions of

their autonomy at work, reduced job stress and increased job satisfaction, de-

creased work-family conflict, and, surprisingly, improved employee-supervisor

relationships.

101

The Federal Work-Life Survey and Federal Employee View-

point Survey report increased engagement and satisfaction among home-based

federal employees.

102

However, these studies assess individuals who voluntarily

chose remote work, and the findings may not apply to other groups (e.g., em-

ployees required to work remotely or those in different occupations). In the only

randomized study to date, researchers selected some telephone workers at a Chi-

agency workers, about half of the workers did not volunteer when given the option to work

from home, citing a desire for greater social contact or career advancement. See Nicholas

Bloom, James Liang, John Roberts & Zhichun Jenny Ying, Does Working From Home Work?

Evidence from a Chinese Experiment, 130 Q.J. ECON. 165, 180 (2015).

. See Garnett, supra note 4, at 1198.

. See Nicholas Bloom, The Productivity Pitfalls of Working from Home in the Age of

COVID, STAN. NEWS, (March 30, 2020), https://perma.cc/J6YS-N9ZR; OFF. FOR NAT’L STAT.,

COMMUTING AND PERSONAL WELL-BEING, 2014, at 1-2 (2014), (finding that commuters, espe-

cially those with commutes from 61-90 minutes, have lower happiness and life satisfaction

and higher anxiety).

100

. One study in Canada estimated over $12,000 CAD savings on car commuting costs

and the monetary value of time to rural telecommuting households in areas with publicly-

funded ultra-high speed broadband. Helen Hambly & Jamie (Donghoon) Lee, The Rural Tel-

ecommuter Surplus in Southwestern Ontario, Canada, 43 TELECOMM. POL’Y 278, 283 (2019).

Another research group estimated an average of $4,000 in annual savings per worker on com-

muting costs, food, and clothes. Maddie Shepherd, 28 Surprising Working from Home Statis-

tics, FUNDERA (updated Apr. 7, 2020), https://perma.cc/H548-8GSY.

101

. Gajendran & Harrison, supra note 8, at 1532-35. The effects on job satisfaction

were mediated, or due to, the increased in perceived self-autonomy. Id. at 1536.

102

. See Testimony of Kate Lister, supra note 81, at 16. Several months into the coro-

navirus pandemic, workers who had switched to working from home reported an 86% satis-

faction rate, citing lower stress, greater ability to take breaks, and more time spent outdoors.

Anya Strzemien, Jessica Bennett, Tracy Ma & Eve Lyons, Out of Office: A Survey of Our New

Work Lives, N.Y. TIMES (Aug. 20, 2020), https://perma.cc/RP5C-BMQB (reporting findings

from survey by the Times and Morning Consult).

March 2022] UNTRANSIT 97

nese travel agency to work remotely while others continued to work in the of-

fice.

103

The remote workers reported higher work satisfaction, more positive at-

titudes, and less work exhaustion than control subjects who remained in the of-

fice.

104

However, half of the remote workers opted to return to the workplace

when given a choice nine months later, citing loneliness or disturbance to other

household members from the remote work.

105

This finding highlights the value

of remote work centers or public spaces to facilitate remote work for workers,

and suggests explanations for the preference among workers for hybrid in-of-

fice/remote schedules (for more detail on remote work centers, see Part IV.C).

In light of the dramatic increase in remote work and the demand from work-

ers for work-from-home flexibility, remote work will inevitably shape land use

law and the provision of local goods. The rise of remote work in labor markets,

and land use law, is unquestionably controversial, spurring concern about the

future of cities and socio-economic and racial disparities for those who cannot

work from home.

106

Yet it is also inevitable. Local governments will respond to

political demand from current residents, and market pressure from buyers, to ac-

commodate remote work and offer services (e.g., connectivity and cybersecurity)

and amenities (e.g., workspaces). In addition, there are social benefits to unteth-

ering labor from centralized workplaces. The following sections focus on the

salutary effects of remote work on local efficiency and housing affordability, and

briefly discuss other potential gains. Part V addresses potential costs and con-

cerns about expanding and supporting remote work at the local level.

B. Inter-Local Competition: Resuscitating Tiebout

As localities compete for increasingly mobile residents, remote work should

increase local government responsivity to resident and buyer preferences and de-

crease the cost of local goods provision (i.e., taxes). In a highly influential 1956

paper, Charles Tiebout described the residential mover as a “consumer-voter”

who “pick[s] that community which best satisfies his preference pattern for pub-

lic goods.”

107

As a result, local governments can more efficiently satisfy individ-

ual preferences than if the national government provided all public goods.

108

Tiebout’s model, localities compete to attract residents by offering appealing

mixes of services, taxes, and regulations.

109

103

. Bloom, et al., supra note 97, at 198-200. All workers in the study had indicated

they were willing to work remotely for the study duration. Id. at 180.

104

. Id.

105

. Id. at 210-11.

106

. See infra Part V.B & D.

107

. See Tiebout, supra note 16, at 418.

108

. See id. at 416.

109

. See id. at 422.

98 STANFORD LAW & POLICY REVIEW [Vol. 33:79

In practice, the Tiebout hypothesis has suffered from a major barrier to the

interlocal mobility necessary for competition: commute time.

110

Lee Anne Fen-

nell has described residential property choice as a “bundled decision” because

the value of homes to individual buyers derives not only from the housing struc-

ture and price, but from its location, local and proximate non-local public goods,

the actions of neighbors, and exclusionary zoning laws, among other attributes.

111

Homebuyers purchase their commutes along with their homes, in the form of a

set of commuting options to workplaces and other places of interest for house-

hold members.

112

Fennell notes that, “The people in Tiebout’s stylized model live

off of dividend income and do not have workplaces to which they must commute,

nor do they have any desire to consume extrajurisdictional amenities . . . .”

113

School quality, social ties, and other local goods also restrict housing choice for

residents and buyers.

114

Remote work relaxes the constraint of commute time because workers either

do not commute to a centralized workplace or do so less frequently. Presumably,

this should make the “market” for localities described by Tiebout more compet-

itive in regions with high numbers of remote workers. Tiebout noted the im-

portance of competition to his theory, writing, “[t]he greater the number of com-

munities and the greater the variance among them, the closer the consumer will

come to fully realizing his preference position.”

115

Notably, if remote work in-

creases inter-local competition by expanding the number of viable localities for

housing consumers, it should also hasten the local provision of remote work sup-

port as localities vie for residents who increasingly work from home. This will

occur as a result of competitive pressures despite the fact that localities may pre-

fer not to increase mobility or inter-local competition by promoting remote

work.

116

While increased inter-local competition is salutary in many respects, a po-

tential downside is that it may heighten the relative disadvantage faced by less

affluent localities. These localities lack the fiscal capacity to successfully engage

in Tiebout-style competition over local public goods.

117

On net, however, remote

110

. See Richard Briffault, Localism and Regionalism, 1 BUFF. L. REV. 1, 18-19 (2000).

Tiebout perceived this issue and adopted as an assumption of his model that “Consumer-voters

are fully mobile and will move to that community where their preference patterns, which are

set, are best satisfied.” Tiebout, supra note 16, at 421.

111

. Lee Anne Fennell, Exclusion’s Attraction: Land Use Controls in Tieboutian Per-

spective, in THE TIEBOUT MODEL AT 50, at 163, 164-68 (William A. Fischel ed., 2006).

112

. See id. at 166.

113

. Id.

114

. See Abdul Rawoof Pinjari, Ram M. Pendyala, Chandra R. Bhat & Paul A. Waddell,

Modeling Residential Sorting Effects to Understand the Impact of the Built Environment on

Commute Time, 34 TRANSP. 557, 564, 571 (2007).

115

. Tiebout, supra note 16, at 419.

116

. For a more detailed discussion of local competition for remote workers, see Part

III.A below.

117

. See Briffault, supra note 110, at 19 (“[T]he enormous disparities in tax bases and

March 2022] UNTRANSIT 99

work may still benefit at least some resource-poor communities if they are able

to attract remote workers with lower housing prices, and thus expand their tax

base (and their ability to compete for residents).

C. Housing Affordability via Dispersion

Housing affordability has loomed large in the past two decades as a deterrent

to economic growth, household stability, and quality of life in the United

States.

118

The overriding focus of policymaking and research on housing afford-

ability has been to increase residential housing density (i.e., supply) in metropol-

itan areas by reducing the stranglehold of single-family and other low-density

zoning in favor of larger, multi-unit dwellings.

119

Higher density and thinner zon-

ing regulations increase supply and reduce construction costs compared to lower

density, highly regulated construction.

120

In addition, higher density housing

close to urban cores has other important benefits, such as reducing energy and

land use and preserving ecosystem services.

121

Remote work creates a second, parallel avenue for increasing housing af-

fordability on the supply-side: enabling mobility to lower-cost areas or smaller

cities. Research suggests that high levels of telecommuting increase housing af-

fordability overall as workers relocate to cheaper outlying areas or more afford-

able cities.

122

An econometric model by Matthew J. Delventhal, Eunjee Kwon,

and Andrii Parkhomenko finds that if one-third of the labor force is fully remote,

workers relocate from urban cores to more affordable outlying locations, while

businesses move closer to the core to take advantage of dropping real estate

prices in cities.

123

High numbers of people working from home tend to lower

prices in cities and increase real estate prices somewhat in the periphery. The net

spending among localities in a metropolitan area

call into question the role of localism in pro-

moting ‘consumer choice.’”).

118

. In 2017, 23% of all homeowners and 47% of all renters spent more than 30% of

their income on housing (30% or more of income spent on housing is a common metric de-

marcating cost-burdened residents). Sean Veal & Jonathan Spader, Joint Ctr. For Hous.

Stud.,Nearly a Third of American Households Were Cost-Burdened Last Year, HOUS. PERSP.

(Dec. 7, 2018), https://perma.cc/J3X3-LUXR; see also ALEX F. SCHWARTZ, HOUSING POLICY

IN THE UNITED STATES 34 (2015) (reporting similar findings).

119

. See Edward Glaeser & Joseph Gyourko, Zoning’s Steep Price, 25 REG. 24, 24-26

(2002-2003); cf. John M. Quigley & Larry A. Rosenthal, The Effect of Land Use Regulation

on the Price of Housing: What Do We Know? What Can We Learn?, 8 CITYSCAPE 69 (2005)

(reviewing research and suggesting research methods to establish a direct causal link between

regulation and housing prices).

120

. See Briffault, supra note 110, at 18-19.

121

. See Reid Ewing, Is Los Angeles Style Sprawl Desirable?, 63 J. AM. PLAN. ASS’N

107, 113-17 (1997) (describing impact of low-density housing sprawl on energy utilization

and land resources).

122

. See W.C. Bunting, supra note 5, at 298-303 (describing the public benefit of tele-

commuting to housing affordability); Delventhal, Kwon & Parkhomenko, supra note 70, at 3.

123

. Delventhal, Kwon & Parkhomenko, supra note 70, at 2-3.

100 STANFORD LAW & POLICY REVIEW [Vol. 33:79

effect of these changes is to increase overall housing affordability.

124

This pre-

diction assumes that employers do not reduce employee wages for telecommut-

ing; a decrease in wages could partially or fully offset the savings from hous-

ing.

125

While modeling remote work’s effect on housing costs is promising, and

the conclusions accord with the tenets of supply and demand, field research on

the effects of remote work on housing prices is needed as well.

126

In addition to the overall effect of remote work on housing affordability, the

distribution of housing cost benefits and burdens matters as well. While housing

prices appear to be lower overall with remote work, savings may accrue primar-

ily to middle-income and upper-income professional workers, who are more

likely to telecommute.

127

Mitigating this concern, however, is evidence that high

levels of remote work can reduce urban housing costs by reducing demand.

128

This could be a boon to urban residents, especially renters, regardless of whether

they engage in remote work. Urban renters bear the highest burden of unafford-

ability and are more racially diverse than homeowners.

129

The potential housing

losers from remote work appear to be the existing residents and prospective local

buyers in areas with a substantial influx of higher-paid remote workers, as they

will face increased housing prices and property taxes.

Importantly, remote work sidesteps—although it does not eliminate— the

incentive problems that have plagued the local provision of housing.

130

Driven

124

. In the model, with 33% of workers working from home, average housing prices fall

by nearly 6%. Id at 3. Notably, this study does not address distributional effects based on

income or occupation. See id. at 17-18.

125

. See William Larson & Weihua Zhao, Telework: Urban Form, Energy Consump-

tion, and Greenhouse Gas Implications, 55 ECON. INQUIRY 714, 732 (2016). For a current

example, Facebook recently announced it had expanded its remote work policy and imple-

mented controversial “pay localization.” See Conor Sen, Why Is Facebook for Remote Work?

It Wants Pay Cuts, BLOOMBERG (May 20, 2020, 8:30 AM), https://perma.cc/WE29-BJ27.

126

. In the past two years, there have been scores of news and blog accounts of remote

workers leaving cities for suburbs and rural areas, but limited empirical research. This is in

part due to the difficulty of isolating remote work’s effect on housing prices from the current

context of pandemic-related moves and surges in real estate prices related to government stim-

ulus. More research on the impact of remote work on housing markets should occur to confirm,

or disconfirm, the affordability effect I describe in this Article.

127

. Bick, Blandin & Mertens, supra note 9, at 10-11 (upper-income workers, as well

as white, female, and highly-educated workers switched to remote work at higher rates during

COVID pandemic); Neeta Kantemneni, The Impact of the Covid-19 Pandemic on Marginal-

ized Populations in the United States: A Research Agenda, 119 J. VOCATIONAL BEHAV.

103439, 103440 (2020) (people of color disproportionately represented in labor forces for in-

person work such as the restaurant, travel, entertainment, and personal services industries).

128

. See Delventhal, Kwon & Parkhomenko, supra note 70, at 2-3.

129

. See JOINT CTR. FOR HOUS. STUD. OF HARV. UNIV., AMERICA’S RENTAL HOUSING:

MEETING CHALLENGES, BUILDING ON OPPORTUNITIES 16-17 (2011), https://perma.cc/LLU5-

HQPK.

130

. As the contentious, decades-long litigation in Mt. Laurel over affordable housing

illustrates, localities typically seek the opposite: to increase housing prices by constraining

supply. See S. Burlington Cnty. NAACP v. Mount Laurel, 67 N.J. 151 (1975), aff’d 92 N.J.

158 (1983).

March 2022] UNTRANSIT 101

by the interests of current residents, localities typically inflate property values by

constraining housing supply or, for the more equity-minded, providing a limited

amount of affordable housing.

131

By the same token, remote workers are attrac-

tive to local governments because an influx of residents increases property values

and tax revenues. Regional and national gains in housing affordability are an

unintentional, but beneficial, effect of increased remote work and local competi-

tion for remote workers.

D. Other Benefits

There are other benefits to remote work that support its expansion. First, as

workers reduce their commute times, traffic congestion lessens due to fewer ve-

hicle miles traveled and greater non-peak travel.

132

Even if workers shift to less

frequent but longer commutes that do not reduce net vehicle miles traveled, con-

gestion may lessen if they commute from more dispersed locations and at more

variable times. Recent research in California found a reduction in traffic volume

of 20 to 55% (depending on the highway) during the state’s coronavirus “shelter

in place” order, when non-essential workers worked from home.

133

During this

time, traffic injuries and fatalities dropped by 6,000 per month, and the savings

from reduced collisions across the state was approximately 40 million per day.

134

Nationwide, commuting results in massive losses to productivity (by one esti-

mate 78 billion per year), and over 35,000 deaths annually.

135

In addition, wide-

spread remote work also has a small but significant effect on carbon reduction,

131

. See WILLIAM A. FISCHEL, THE HOMEVOTER HYPOTHESIS: HOW HOME VALUES

INFLUENCE LOCAL GOVERNMENT 260-62 (2005) (arguing that homeowners press local govern-

ment for zoning and services that they believe will increase their home values); Fennell, supra

note 111, at 171-72 (finding that residents seek, and localities compete to provide, restrictive

zoning that buoys home prices); Jenny Schuetz, Rachel Meltzer & Vicki Been, Silver Bullet

or Trojan Horse? The Effects of Inclusionary Zoning on Local Housing Markets in the United

States, 48 URB. STUD. 297, 313-22 (2011) (study of inclusionary zoning laws in San Francisco

and Boston noting demand from local residents for inclusionary (affordable) housing and find-

ing that inclusionary zoning did not have a large impact on real estate prices in these two

cities).

132

. See Ugo Lachapelle, Georges A. Tanquay & Léa Neumark-Gaudet, Telecommuting

and Sustainable Travel: Reduction of Overall Travel Time, Increases in Non-Motorised Travel

and Congestion Relief?, 55 URB. STUD. 2226, 2238-39, 2242 (2018) (entirely telecommuting

workers reduced commute time by fourteen minutes on average and all telecommuters en-

gaged in less mid-day and evening peak travel); cf. Patricia L. Mokhatarian, Reducing Road

Congestion: A Reality Check—A Comment, 11 TRANSP. POL’Y 183, 183 (2004) (the magnitude

of congestion reduction is less than proponents of telecommuting acknowledge).

133

. FRASER SHILLING & DAVID WAETJEN, ROAD ECOLOGY CTR., U.C. DAVIS, SPECIAL

REPORT (UPDATE): IMPACT OF COVID19 MITIGATION ON NUMBERS AND COSTS OF CALIFORNIA

TRAFFIC CRASHES 7 (2020).

134

. Id. at 3-4.

135

. Costs and Benefits, GLOB. WORKPLACE ANALYTICS, https://perma.cc/WH5B-2LD9

(archived Feb. 6, 2022); Traffic Deaths Decreased in 2018, But Still 36,560 People Died:

Percentage of Drunk Driving Deaths Lowest on Record, Pedestrian and Bicyclist Deaths Are

Up, NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., https://perma.cc/DTG5-NHCS (archived Feb.

102 STANFORD LAW & POLICY REVIEW [Vol. 33:79

as evidenced during the recent coronavirus pandemic.

136

The magnitude of en-

ergy reduction depends in part on the energy efficiency of homes compared to

centralized workplaces

137

and the decrease in vehicle miles traveled.

138

Second, shifting from centralized workplaces increases national resilience

by allowing some economic activity to continue following a natural disaster, se-

curity threat, or terrorist attack.

139

The capacity to work at home can blunt the

effects of these economic shocks and prevent economic freefall. The federal gov-

ernment increasingly recognizes the importance of remote work to disaster resil-

ience. For example, following the 9/11 terrorist attacks, Congress held a com-

mittee hearing on the “heightened need for telework opportunities in the Post-

9/11 World.”

140

Congressman Tom Davis described telework as a “cornerstone

of emergency preparedness.”

141

In summary, despite the historical focus in land use law on transit and the

separation of work from home, a growing local government role in zoning, plan-

ning, and providing support for remote work is inevitable. Just as developments

6, 2022). Other studies show even higher financial impact, such as a study by the Texas Trans-

portation Institute of 85 metropolitan areas that found total losses of 160 billion from lost

productivity and fuel use due to traffic jams. See Hambly & Lee, supra note 100, at 279. Re-

cent research in California found a reduction in traffic volume of 20-55% (depending on the

highway) and 6,000 fewer traffic fatalities per month during the state’s recent coronavirus

“shelter in place” order, during which non-essential workers worked from home. SHILLING &

WAETJEN, supra note 133, at 3, 7.

136

. See Piers Forster, COVID Paused Climate Emissions—But They’re Rising Again,

BBC (March 15, 2021), https://perma.cc/R3VJ-GKTS (finding that COVID reduced carbon

emissions but not dramatically or permanently).

137

. See William O’Brien & Fereshteh Yazdani Aliabadi, Does Telecommuting Save

Energy? A Critical Review of Quantitative Studies and Their Research Methods, 225 ENERGY

& BLDGS.,Oct. 15, 2020 , at 1, 9-11.

138

. Studies indicate that remote workers erode, but do not eliminate, the savings in

vehicle miles traveled and emissions because they tend to live more distantly from centralized

workplaces and drive more miles recreationally. See Lachapelle, Tanguay & Neumark-Gau-

det, supra note 132, at 2242 (rebound affect in Canadians who worked fully from home did

not outweigh reduced work-related travel); Patricia L. Mokhtarian, Gustavo O. Collantes &

Carsten Gertz, Telecommuting, Residential Location, and Commute-Distance Traveled: Evi-

dence from State of California Employees, 36 ENV. & PLAN. A: ECON. & SPACE 1877, 1877

(2004); Patricia Mokhtarian & Krishna Varma, The Tradeoff Between Trips and Distance

Traveled in Analyzing the Emissions Impacts of Center-Based Telecommuting, 3 TRANSP.

RSCH. PART D: TRANSP. & ENV. 419, 421-23 (1998); Seung-Nam Kim, Is Telecommuting Sus-

tainable? An Alternative Approach to Estimating the Impact of Home-based Telecommuting

on Household Travel, 11 INT’L J. SUSTAINABLE TRANSP. 72, 83-84 (2017) (study of Korean

household travel). Also, countries with high numbers of electric or hybrid vehicles on the road

realize fewer environmental benefits from telecommuting than countries that rely on fossil

fuels. See Meredith Turits, Why Working from Home Might be Less Sustainable, BBC:

WORKLIFE (Feb. 21, 2020), https://perma.cc/36XU-U983.

139

. During the coronavirus pandemic, the nation averted an economic freefall when

approximately one-third of all employed Americans, primarily white-collar workers, have

worked from home. See Bick, Blandin & Mertens, supra note 9, at 9.

140

. Guyot & Sawhill, supra note 82.

141

. Id.

March 2022] UNTRANSIT 103

in transit shaped land use law over time, the explosive growth in remote work

and the gig economy will alter the local government role. In addition, remote

work has the promise to ameliorate two persistent challenges in land use: housing

affordability and inefficiency in the local provision of public goods. Of course,

there are also potential social costs to local support of remote work, such as in-

creasing economic inequality between professional and in-person service work-

ers.

142

Part III & Part V consider the challenges and pitfalls of remote work and

offer suggestions for mitigating potential negative effects.

III. BEYOND TRANSIT: LOCALIZING REMOTE WORK

This Part turns to the particular benefits of providing remote work zoning

and support at the local level, as well as some of the challenges. I envision an

important, but not exclusive, role for local government in remote work, one that

is complementary to remote work provision by employers and policymaking at

other levels of government. Compared to state and federal government and pri-

vate employers, local governments have a number of institutional advantages,

including the legal power to zone for remote work, a smaller scale to respond to

geographic variability in needs and preferences, and the capacity for decentral-

ized experimentation. However, localizing remote work also faces challenges

that we should anticipate, and plan for, including political obstacles, fiscal con-

straints, and the potential for extra-local harms. At times, state and federal gov-

ernments will need to fill these gaps or act as regulatory backstops.

A. Local Institutional Competence: Scale, Variability, and Experimentation

Remote work zoning and planning is within the established legal power of

localities pursuant to state “home rule” acts that delegate power to local govern-

ment to manage local affairs.

143

As a consequence, local governments possess

the power to zone and regulate land uses within their jurisdictions (subject to

occasional over-ride from state laws preempting local power).

144

Providing local

goods that support remote work, zoning to allow home-based work, or increasing

mixed-use neighborhoods with restaurants and retail for remote workers are

within the well-established bounds of local power.

145

Local government also has

142

. While this increase in economic inequality is very concerning, it is preferable to

achieving equality because all workers have experienced major income loss. In theory, the

economic resilience of certain sectors of the economy can help to fund subsidies for harder-

hit sectors.

143

. See Lynn A. Baker & Daniel B. Rodriguez, Constitutional Home Rule and Judicial

Scrutiny, 86 DENV. U. L. REV. 1337, 1357-58, 1374 (2009) (compiling state home rule stat-

utes).

144

. For examples of state preemption statutes, see infra notes 249-50 & note 203.

145

. See Euclid, 272 U.S. at 389 (describing local zoning power); FISCHEL, supra note

16, at 22.

104 STANFORD LAW & POLICY REVIEW [Vol. 33:79

the legal power to zone private developments and contract with or permit busi-

nesses offering remote work services and amenities, which is often the most ef-

ficient way to provide remote work centers, connectivity, and cybersecurity. Be-

cause localities cannot directly provide all of the goods desired by residents (e.g.,

housing, recreation, remote work amenities), local governments have evolved

processes for contracting with private businesses and negotiating for develop-

ment.

146

Situating remote work support within local government, as opposed to ex-

clusively or primarily at the state or federal level, responds to the considerable

geographic and socioeconomic variability in the prevalence of remote work and

its costs and benefits. Subsidiarity refers to the principle that action should occur

at the lowest level of government possible to achieve a particular objective.

147

One of the fundamental justifications for local government power is that local

governments can match policies to distinctive local conditions, preferences, and

needs more accurately and efficiently than state or federal policymakers.

148

Lo-

calities are able to tailor policymaking because local governments are geograph-

ically and politically proximate to their citizens and knowledgeable about local

circumstances. With respect to remote work, dispersed local governments are

well-situated to discern preferences and craft policies for varying resident-

worker populations.

149

Localizing remote work also enables a natural sorting between workers and

localities. Localities will be most interested in adopting remote work policies

when they perceive benefits that they can capture from attracting or accommo-

dating remote workers, such as increased tax revenues or satisfying resident de-

mand.

150

Just as localities have “an economic interest in using [their] planning

and zoning powers to exclude new residents and activities that cost more in ser-

vices than they contribute to the tax base,” as Richard Briffault has observed,

localities similarly have an economic interest in attracting residents likely to con-

tribute more to the tax base than they cost.

151

As another example, local road

congestion may lead some localities to robustly support remote work, while other

146

. Private amenities are so dominant that local governments now increasingly zone

and approve private neighborhoods, sometimes so many of them that it creates a de facto pri-

vate city. See generally GEORG GLASZE, CHRIS WEBSTER, & KLAUS FRANTZ, PRIVATE CITES:

GLOBAL AND LOCAL PERSPECTIVES (2006) (describing the proliferation of private communities

globally).

147

. See George A. Bermann, Taking Subsidiarity Seriously: Federalism in the Euro-

pean Community and the United States, 94 COLUM. L. REV. 331, 338 (1994).

148

. See Tiebout, supra note 16, at 416-18; see also Alex Anas, The Costs and Benefits

of Fragmented Governance and the New Regionalist Policies, 2 PLAN. & MKTS 10, 10-12

(1999).

149

. Cf. Robert E. Park, The City as a Social Laboratory, in CHICAGO: AN EXPERIMENT

IN SOCIAL SCIENCE RESEARCH 1, 1-19 (T.V. Smith & Leonard D. White eds., 1929) (arguing

for the value of local knowledge in other contexts).

150

. See, e.g., Graf, supra note 11 (noting that congestion benefits from remote work

varies based on region, schedule (full-time vs. part-time), and the type of remote work).

151

. Briffault, supra note 110, at 8.

March 2022] UNTRANSIT 105

localities are indifferent.

152

Congestion reduction is a minor or non-existent issue

across most of Wyoming, for example, and a 10 hour per day crisis in cities such

as Los Angeles or Seattle.

153

In other cases, localities may spurn remote work

zoning and support altogether because attracting remote workers does not offer

benefits in excess of costs or imposes localized harms.

154

For example, newly

popular western “zoom towns” such as Aspen and Jackson Hole, have struggled

to provide adequate infrastructure and maintain housing affordability following

an influx of remote workers during the recent coronavirus pandemic.

155

Variability in the costs and benefits from remote work counsels in favor of

local autonomy, and against state mandates that localities engage in local plan-

ning for remote work or provide certain zoning or remote work amenities. Re-

mote work laws at the state level requiring local zoning or support for remote

work would be blunt and overinclusive, potentially mistargeting localities with

few remote workers and little to gain from endeavoring to attract them. Moreo-

ver, it does not appear that such a strong incursion into local power is necessary.

An expansion of the local role to include remote work is occurring naturally,

albeit more slowly in light of history and transit subsidy, as remote work expands

and remote conferencing and other technologies advance.

In addition to responding to variability, local action may promote experi-

mentation and innovation in remote work policy.

156

Decentralized local experi-

mentation, either autonomously or in collaboration with state government or re-

gional authorities, enables policy testing and innovation. Local approaches to

remote work will vary and not all localities will provide remote work amenities

or zoning. The information gleaned from local experience and comparison aids

local governments and planners as they adopt or revise policies (as well as state

152

. Congestion depends on population density, the spatial distribution and length of

commutes, and the available modes of transit. See Mokhatarian, supra note 132, at 183.

153

. Even in congested cities and regions, the magnitude of improvement in congestion

from remote work varies based on region, the frequency of full versus part-time remote work,

and the type of remote work. See Raman Shabanpour, Nima Golshani, Mohammad Tayarani,

Joshua Auld & Abolfazl (Kouros) Mohammadian, Analysis of Telecommuting Behavior and

Impacts on Travel Demand and the Environment, TRANSP. RSCH. PART D 563, 574-78 (2018);

see also Lachapelle, Tanquay & Neumark-Gaudet, supra note 132, at 2242 (rebound effect in

Canadians who worked fully from home did not outweigh reduced work-related travel).

154

. Compare supra notes 150 and 152 (variability in benefits to individual localities),

with Mary C. Noonan & Jennifer L. Glass, The Hard Truth About Telecommuting, MONTHLY

LAB. REV. 37, 38 (2012) (feminist critique of remote work), and Crim, supra note 39 (telework

is overrated in congestion management and sustainability).

155

. See Philip Stoker, Danya Rumore, Lindsey Romaniello & Zacharia Levine, Plan-

ning and Development Challenges in Western Gateway Cities, J. AM. PLAN. ASS’N 21, 21, 26-

28 (2020).

156

. As Andrew Karvonen and Bas Van Heur write, “Experiments [in urban laboratories

are] understood to be contingent and open-ended, carrying substantial risks as well as re-

wards. . . . founded on the idea that one is compelled to act despite uncertainties and gaps in

knowledge.” Andrew Karvonen & Bas Van Heur, Urban Laboratories: Experiments in Re-

working Cities, 38 INT’L J. URB. & REG’L RSCH. 379, 389 (2014).

106 STANFORD LAW & POLICY REVIEW [Vol. 33:79

and federal governments contemplating remote work laws or funding).

157

Decen-

tralization also responds to uncertainty about social outcomes from local and

other governmental support of remote work by allowing incremental experimen-

tation and revision as knowledge accrues.

158

Of course, the magnitude of innovation envisioned from cities as laborato-

ries, or the corresponding notion of states as laboratories of democracy, can be

overblown, suffering from vague parameters for what constitutes experimenta-

tion and tendencies for risk-averse, resource-constrained government units to

copy rather than innovate.

159

Putting aside the more grandiose claims, however,

there remains a useful core to the premise of decentralized experimentalism.

There are over 89,000 localities in the United States, and growing interest among

localities in attracting remote workers.

160

Even a fraction of localities implement-

ing remote work policies is more likely to produce efficient or innovative ap-

proaches than a single policymaker.

161

Local innovation also benefits from the

private sector, and local government expertise working with private businesses

and developers. Private businesses providing services and amenities typically it-

erate, and innovate, more frequently and rapidly than government bodies.

162

B. Public Funding of Private Business: The Local vs. Private Role

Should localities offer remote work services (e.g., connectivity or cyberse-

curity) or amenities, at local taxpayer expense, that employers could provide or

would be supplied more efficiently by the private market? First, localities are

concerned about “over-providing” remote work goods that employers, or resi-

dents, are willing to supply. In some cases, employers offer employees remote

work assistance, most commonly by providing computers or other needed equip-

ment and less frequently reimbursement for internet costs.

163

In addition, many

157

. Planners and municipal employees, particularly in larger localities, typically have

professional networks that include peers in other localities and often participate in regional or

national groups.

158

. But see Levmore, supra note 20, at 817 (incrementalism can exacerbate interest

group politics that stifle desirable changes and democratic process).

159

. See Karvonen & Van Heur, supra note 156, at 382; Park, supra note 149, at 1-19.

160

. Census Bureau Reports There are 89,004 Local Governments in the United States,

U.S. CENSUS BUREAU (Aug. 30, 2012), https://perma.cc/AJL8-ST74; see infra Part IV.E.

161

. This premise also extends to “subunits” within local governments such as zoning

commissions, school boards, and park commissions, that have discrete authority locally and

may address remote work or connectivity policies differently. See Heather K. Gerken, Feder-

alism All the Way Down, 124 HARV. L. REV. 6, 30 (2010) (“If you want to promote experi-

mentation or choice, let the decentralized units decide.”).

162

. Cf. Stephanie M. Stern, Outpsyched: Comparative Institutional Expertise and Psy-

chologically-Informed Law, 57 JURIMETRICS 45, 45-55 (2016) (arguing for the superior com-

petence of firms compared to government to iterate and innovate in order to evade laws in-

tended to correct consumers’ psychological biases).

163

. Cf. Yi Sun, Beverlee Anderson & Fang Fang, Does Location Matter? Impact of

Local Government Policies and Incentives on Entrepreneurship, 85 INT’L PROC. ECON. DEV.

March 2022] UNTRANSIT 107

employees appear willing to provide their own office spaces and connectivity, at

least among middle- and upper-income workers.

164

The important, and typically determinative, question for localities is not a

normative sentiment about who “should” pay, but whether zoning and providing

amenities for remote work will improve local revenues and economic conditions

in excess of costs. In a similar vein, transportation planning and policymaking

have focused on whether transit investments will satisfy the needs of local resi-

dents and spur economic growth, not on the expected contribution from private

employers.

165

Moreover, it is far easier for localities to evaluate whether remote

work will yield net benefits to local revenue and growth than to discern the will-

ingness of residents or their employers to provide remote amenities.

In addition, many workers lack employer support for their remote work.

Some remote workers are self-employed as entrepreneurs, independent contrac-

tors, or gig workers. Localities may wish to provide remote work amenities to

attract these solo remote workers or start-up business ventures.

166

For employed

remote workers, some of the amenities that remote workers desire cannot be pro-

vided by employers. For example, remote work centers in the community may

not be cost-effective for individual employers to offer because their telecommut-

ing employees are too geographically dispersed. Employers also lack the legal

authority to zone. In addition, we cannot rely solely on the private market to

provide remote work amenities to unemployed individuals seeking to obtain

work or increase their gig work.

167

Second, there is the question of the comparative efficiency of government

versus private business at producing goods and services. In the context of land

use law, however, the efficiency gap between local governments and markets is

frequently a false dichotomy. A major role of local government is to coordinate

with private developers and other stakeholders to produce local goods. It is often

(not always) preferable for localities to produce local goods by reducing zoning

barriers, providing incentives, or streamlining the private development process

than for local governments to produce the goods themselves. Accordingly, this

paper defines zoning and regulatory incentives for private interests as part of

local government provision of remote work support. One limitation of the private

market, however, is that it will only reach residents with the means to pay—an

& RSCH. 1, 1-2, 4 (2015) (survey of local government incentives for remote workers in South-

ern California communities).

164

. See infra Part V.B for a discussion of remote work needs of low-income workers.

165

. Alan T. Murray, Rex Davis, Robert J. Stimson & Leuis Ferreira, Public Transpor-

tation Access, 3 TRANSP. RSCH. PART D 319, 319-20 (1998) (Because a transportation system

has great influence on “development, economic viability, environmental impacts, and on

maintaining socially acceptable levels of quality of life . . . . [i]t is not surprising to find that

considerable resources continue to be expended by government agencies in the planning and

development of more effective transportation services.”).

166

. See Sun, Anderson & Fang, supra note 163.

167

. See infra Part IV.C.

108 STANFORD LAW & POLICY REVIEW [Vol. 33:79

obvious but frequently overlooked point. This suggests a larger role for govern-

ment to provide or subsidize the private provision of remote work goods in

poorer municipalities or neighborhoods, a point I return to in Part V.B.

168

C. Public Choice Barriers

The continued expansion of remote work will create winners and losers, and

accordingly conflicts. These political dynamics suggest that local remote work

policies will not progress evenly, or rapidly, across the country. Public choice

theory has described how interest groups often derail government regulation in-

tended to correct market failures or produce other public benefits.

169

In contrast

to the organized interests that may oppose remote work support, such as stake-

holders in large cities or trade associations, individual remote workers are dis-

persed and unorganized, and therefore realize high individual costs for advo-

cacy.

170

Even businesses employing remote workers will find it costly to press

for local support as their employees disperse geographically, requiring them to

lobby multiple localities, regional authorities, and states.

Interest groups that benefit from the centralization of work in expensive cit-

ies will oppose remote work policies if their city is at risk of losing population,

tax revenues, and city-based businesses. For example, in San Francisco, the

mayor has fought a proposal from the regional transit authority to require the city

to mandate an increase in remote work for larger employers so that on an average

day a majority of employees telecommute.

171

States with higher taxes and hous-

ing costs will also frown on remote work policies that accelerate the loss of work-

ers to states with lower costs. These states may enact state income tax laws and

lobby the federal government for federal tax rules that favor their interests.

Established local businesses and trade associations may also oppose home-

based work and seek heightened regulation of home-based competitors. For ex-

ample, salons or repair shops may lobby for zoning and other regulation to re-

strict their home-based competitors. Such dynamics have a long history in land

use regulation of home work. In the early 1900s, certain business interests sup-

ported reforms for tenements that housed poor immigrants, such as inspections

168

. See infra Part V.B.

169

. See generally JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF

CONSENT: LOGICAL FOUNDATIONS OF CONSTITUTIONAL DEMOCRACY (1962) (seminal work in

public choice theory applying economic framework to political behavior, interest groups, and

political institutions).

170

. See ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 244 (1957) (noting

that the tiny marginal impact of a single vote on an outcome creates little incentive for indi-

vidual citizens to cast well-informed votes); see also MANCUR OLSON, THE LOGIC OF

COLLECTIVE ACTION 7-11 (2009) (analyzing incentives for individual action and the free rider

dynamics that impede individual participation in group action).

171

. See Graf, supra note 11.

March 2022] UNTRANSIT 109

of tenement apartments and occupancy limits, in order to stifle competing home

businesses that had arisen in the tenements.

172

Public choice pressures will create barriers for some remote work zoning

and policies and slow the incorporation of remote work into land use law. How-

ever, political opposition is unlikely to prevent local remote work zoning and

goods provision. The desire of many local governments to attract remote workers

is a strong countervailing force. It is also possible that competition between lo-

calities for remote workers may lessen the hold of interest groups and the result-

ing public choice barriers. Public choice theorists have suggested that pushing

action to the local level can ameliorate government failure from interest group

capture because there is more competition between different local governments

for residents and revenues.

173

Inter-local competition is particularly likely to be

successful when local governments are not consolidated into regional authorities

and local government action relies on local revenues and taxes.

174

D. State and Federal Role: Incentive Misalignments, Regulatory Backstops,

and Funding

Localizing remote work at times will entail federal and state government to

address incentive misalignments, act as a regulatory backstop, and provide fund-

ing. There is significant precedent in state and federal law for shared or cooper-

ative agency between different levels of government.

175

For example, state gov-

ernments routinely impose mandates that preempt local autonomy, set

performance targets for localities for affordable housing, and require local plan-

ning.

176

The federal government has protected endangered species on private

lands and funded local community development, mass transit, and climate adap-

tation measures.

177

First, state or federal government may need to nudge localities when remote

work is socially beneficial but localities cannot capture its benefits, at least not

172

. See David T. Beito & Linda Royster Beito, The “Lodger Evil” and the Transfor-

mation of Progressive Housing Reform, 1890-1930, 20 INDEP. REV. 485, 490-91 (2016) (de-

scribing how tenement renters housed paying boarders); Mary Van Kleeck, Child Labor in

New York City Tenements, 19 CHARITIES & THE COMMONS 1405, 1405-06 (1908) (describing

child labor in tenements to perform contracted garment and artificial flower manufacturing).

173

. See George A. Boyne, Competition and Local Government: A Public Choice Per-

spective, 33 URB. STUD. 703, 708-18 (1996) (describing and refining theory of public choice

dynamics in local government).

174

. See id. at 715-18.

175

. See, e.g., Mark D. Rosen, Interstate Immunity: On Fictive Settlements and Shared

Agency 6-7 (Oct. 15, 2021) (unpublished manuscript) (on file with author) (describing shared

agency across different institutions in the development of constitutional law) .

176

. See John Infranca, The New State Zoning: Land Use Preemption Amid a Housing

Crisis, 60 B.C. L. REV. 823, 841-42, 848-70, 875 (2019).

177

. See, e.g., Endangered Species Act, § 16 U.S.C. 1540 (2018); EPA Federal Funding

and Technical Assistance for Climate Adaptation, CLIMATE CHANGE ADAPTATION RES. CTR.

(ARC-X) (updated Sept. 1, 2021), https://perma.cc/9ZAR-SW4F; supra Part I.A.

110 STANFORD LAW & POLICY REVIEW [Vol. 33:79

in excess of their costs. The potential benefits of remote work to air quality offer

a paradigm example. State laws might require localities to mitigate some of the

pollution produced within their boundaries with remote work as a part of a state

pollution control law. Local or regional programs supporting remote work could

also play a larger role in mitigating air pollution for severe or serious non-attain-

ment in State Implementation Plans (SIPs), as required under the Clean Air

Act.

178

Alternatively, a state may adopt remote work policies and incentives to

mitigate impacts from its own actions. For example, state Environmental Policy

Acts, modeled on the National Environmental Policy Act (NEPA), require agen-

cies to create a written plan assessing environmental impacts, alternatives, and

mitigation strategies for actions with substantial environmental impacts.

179

state agency could propose mitigating the environmental impact of a specific ac-

tion, such as siting a state building in a city’s periphery rather than its central

hub, with remote work policies that offset the commuting increase that would

otherwise occur.

Second, state governments may need to act to prevent extra-local harms, or

externalities, from remote work itself. For example, attracting remote workers

may benefit individual communities, but increase regional sprawl.

180

A boom in

remote work is likely to draw population to more distant suburbs, rural areas, and

smaller, more affordable cities.

181

Sprawl refers to lower density housing that

leapfrogs or spirals outward from greater metropolitan areas and other compact

centers, in the absence of systematic regional land use planning.

182

Sprawl is dif-

ficult to quantify and its designation is often subjective (notably, remote work

presents a conceptual challenge to sprawl, since sprawl assumes that there should

be higher residential density close to in-person job centers).

183

In regions where

178

. Clean Air Act, 42 U.S.C. § 7401 (2020).

179

. Patrick Marchman, “Little NEPAs”: State Equivalents to the National Environmen-

tal Policy Act in Indiana, Minnesota, and Wisconsin 3-4 (Sept. 2012) (capstone paper, Duke

University) (DukeSpace), https://perma.cc/3J9G-SLY5 (describing state “little NEPA” laws

of varying stringency).

180

. Cf. Jan K. Brueckner, Urban Sprawl: Diagnosis and Remedies, 23 INT’L REG’L SCI.

REV. 160, 161, 164-66 (2000) (noting that sprawl increases housing affordability and describ-

ing how failure to internalize the negative externalities of commuting makes sprawl an unde-

sirable and inefficient form of growth).

181

. Lukas Althoff, Fabian Eckert, Sharat Ganapati & Conor Walsh, The Geography of

Remote Work 5, 7-9 (Nat’l Bureau of Econ. Rsch., Working Paper No. 29181, 2020). The

recent coronavirus pandemic has not produced a large migration out of most cities to date,

with most movers citing their move was for other reasons. The exceptions to this appear to be

New York City and San Francisco, although it is too early to know whether this is a long-term

trend. See Marie Patino, What We Actually Know About How Americans Are Moving During

COVID, BLOOMBERG: CITY LAB (Sept. 16, 2020, 8:10 AM PDT), https://perma.cc/VZG5-

8PC3; see also Bindley, supra note 91.

182

. See ROBERT BRUEGMANN, SPRAWL: A COMPACT HISTORY 18 (2005); Robert W.

Burchell & Naveed A. Shad, The Evolution of the Sprawl Debate in the United States,

HASTINGS W. NW. J. ENV’T. L. & POL’Y 137, 141 (1999).

183

. Peter Gordon and Harry Richardson have argued that sprawl is a value judgment

rather than a land use ailment.

See Peter Gordon & Harry W. Richardson, Are Compact Cities

March 2022] UNTRANSIT 111

citizens disfavor sprawl or it causes substantial environmental harm, states and

regional authorities can provide regulatory backstops. For example, state gov-

ernments may adopt urban growth boundaries that limit development in outlying

areas or incentivize higher-density development.

184

Third, localizing remote work policy may require state and federal govern-

ments to provide local funding (as has occurred with mass transit) and share ex-

pertise. Funding remote work services and amenities, particularly internet con-

nectivity and security, will be a challenge for many localities. Local

governments, who increasingly provide an array of social services that were

funded federally prior to the 1970s, are often cash-strapped and under-staffed.

185

Fiscal conditions and thin staffing constrain local support of remote work. For

example, most municipal broadband installations would be infeasible absent col-

laborative funding with federal or state government.

186

State or federal govern-

ment can also share resources and expertise with localities. For example, state

and federal agencies have offered training and resources to assist local police and

staff in cybersecurity and cyber-investigation, as discussed in Part IV.A.2.

187

To summarize, localities have the legal power to zone for remote work and

the capacity to offer certain amenities and services that could not be efficiently

provided at the state or federal level. Localizing remote work also responds to

high geographic variability in the prevalence and type of remote work and ena-

bles experimentation with remote work policy among many, decentralized local

governments. However, increasing the local government role in remote work will

also confront a variety of challenges, including funding shortfalls and political

resistance from interest groups who stand to lose from remote work. There are

incentive misalignments and spillover harms, such as regional sprawl from re-

mote work, that may require intervention from state or federal government.

IV. UNTRANSIT POLICIES: OPTIONS FOR REMOTE WORK ZONING AND SUPPORT

This Part offers illustrative examples of zoning reforms and land use tools

to support remote work. I focus on public governance and do not address private

a Desirable Planning Goal?, 63 J. AM. PLAN. ASS’N 95, 96-97 (1997).

184

. Urban growth boundaries demarcate an area where zoning, projects, and funding

concentrate higher-density development inside the boundary, and situate conservation and ru-

ral uses in areas outside the growth boundary. David N. Bengston, Jennifer O. Fletcher &

Kristen C. Nelson, Public Policies for Managing Urban Growth and Protecting Open Space:

Policy Instruments and Lessons Learned in the United States, 69 LANDSCAPE & URB. PLAN.

271, 276 (2004). For a description of congestion tolling, see Brueckner, supra note 180, at

164-66.

185

. See Peter Eisinger, City Politics in an Era of Devolution, 33 URB. AFF. REV. 308,

309-310 (1998). Eisinger describes devolution and the resulting “New Federal Order” as the

rearrangement of federal relationships that “began with President Richard Nixon’s efforts to

devolve authority from Washington to subnational governments through block grants and gen-

eral revenue sharing.” Id. at 309.

186

. See supra Part IV.A.1.

187

. See supra Part IV.A.2.

112 STANFORD LAW & POLICY REVIEW [Vol. 33:79

common interest communities (e.g., condominiums, homeowners’ associations).

The reforms discussed below situate remote work within local governments’ pur-

view by altering zoning and planning, incentivizing remote workspaces and in

some cases remote workers, and increasing mixed-use zoning and access to retail

and dining for home workers. Likely the most impactful change will be to “dig-

itize” the role of local government to encompass internet connectivity and cyber-

policing, a shift that dovetails with the emerging movement toward technology-

driven “smart cities.”

188

A. Digitizing Local Land Use Law

Connectivity and cybersecurity are central to remote work, yet currently not

provided by federal or state government, with the exception of prosecution of

state or federal cybercrimes. Localities have a productive role to play in filling

these gaps. Notably, the current movement toward “smart cities” is setting the

stage for digital reforms that benefit remote work, among other local services.

189

Already, some fledging “smart cities” are extending connectivity city-wide and

employing sensors and technology to manage infrastructure and services.

190

the context of this trajectory, the reforms suggested below for remote workers

are achievable, and even modest.

1. Broadband Quality and Access

Broadband access benefits a variety of workers, including low-income work-

ers and job seekers, as well as residents in general. Currently, access to broad-

band is uneven in localities across the United States, and particularly lacking in

rural areas and low-income urban neighborhoods. The Federal Communication

Commission’s 2020 Broadband report found that 18 million Americans, primar-

ily in rural areas, lack broadband; a subsequent study concluded that the FCC

188

. See CRAWFORD, supra note 19, at 73-94, 119-38.

189

. See Amy Glasmeier & Susan Christopherson, Thinking About Smart Cities, 8

CAMBRIDGE J. REGIONS, ECON. & SOC’Y 3, 6 (2015) (describing evolving definition of a smart

city); Anastasia Stratigea, Chrysaida-Aliki Papaopoulou & Maria Panagiotopoulou, Tools and

Technologies for Planning the Development of Smart Cities, 22 J. URB. TECH. 43, 51-57 (2015)

(planning framework for developing smart cities).

190

. See Vito Albino, Umberto Berardi & Rosa Maria Dangelico, Smart Cities: Defini-

tions, Dimensions, Performance, and Initiatives, 22 J. URB. TECH. 3, 10, 16-18 (2015) (de-

scribing urban experiments and experiences with smart city technology). With respect to con-

nectivity, Singapore’s smart city “Master Plan iN 2015,” for example, includes providing free

mobile internet access anywhere in the city. See id. at 16.

March 2022] UNTRANSIT 113

had underestimated, and the number of unconnected citizens is over 30 mil-

lion.

191

In addition to lack of infrastructure, affordability threatens access. Ap-

proximately 14% of urban households in areas where broadband is available lack

access because they can’t afford it.

192

Publicly owned municipal broadband is slowly appearing in the United

States, although federal or state universal broadband has been a political non-

starter due to intense opposition from carriers.

193

Currently, there are 331 pub-

licly owned municipal broadband networks across the United States, ranging

from complete wired internet into residents’ homes to public-private partnerships

that lease municipal broadband to internet service providers.

194

For example, in

2010, Chattanooga, Tennessee created a fiber, ultra-high speed internet for its

residents through its city electric utility (despite attempts by Comcast to block

the network in court).

195

There are also some cooperatives for broadband and, in

a few cases, locally coordinated broadband “sharing” from area homes and busi-

nesses.

196

Regional government bodies offer another option for coordinating con-

nectivity.

197

There are no regional or metropolitan governments with autonomous

lawmaking, taxing, and spending authority in the United States, but there are

general purpose transit or water authorities that provide a template for regional

internet.

198

191

. FCC, 2020 BROADBAND DEPLOYMENT REPORT 52 (2020); Tom Wheeler, 5 Steps to

Get the Internet to All Americans—Covid-19 and the Importance of Universal Broadband,

BROOKINGS REP. (May 27, 2020), https://perma.cc/3FW2-EBPL.

192

. Guyot & Sawhill, supra note 82.

193

. Parmy Olson, What Would Happen if America Got Free, ‘Nationwide’ Wifi?

Google Wins, Carriers Lose, FORBES (Feb. 5, 2013, 12:51 AM EST), https://perma.cc/F5GR-

BHWB. In contrast to U.S. federal inactivity, Finland has recently extended a right to broad-

band to its citizens and the UN has declared internet access a human right. See Finland Makes

Broadband a ‘Legal Right,’ BBC: TECH (July 1, 2010), https://perma.cc/7ML2-9W9U; see

also Catherine Howell & Darrell M. West, The Internet as a Human Right, BROOKINGS:

TECHTANK (Nov. 7, 2016), https://perma.cc/8SDQ-48D7 (noting that Article 19 of the Uni-

versal Declaration of Human Rights includes the right to receive and impart information

through any media and regardless of frontiers).

194

. See Kendra Chamberlain, Municipal Broadband is Roadblocked or Outlawed in 22

States, BROADBAND NOW (updated Dec. 7, 2021), https://perma.cc/JVM3-NUW7 (number of

municipal networks); ACLU, THE PUBLIC INTERNET OPTION: HOW LOCAL GOVERNMENTS CAN

PROVIDE NETWORK NEUTRALITY, PRIVACY, AND ACCESS FOR ALL 10-11 (2018),

https://perma.cc/YG2X-3398.

195

. Emily Stewart, Give Everybody the Internet, VOX (Sept. 20, 2020, 8:30 AM EDT),

https://perma.cc/8MAZ-FCUD. Comcast subsequently sued successfully to limit the city’s fi-

ber network to its electrical network footprint.

196

. See id.; ACLU, supra note 194, at 13.

197

. See KATHRYN A. FOSTER, LINCOLN INST. OF LAND POL’Y, REGIONALISM ON

PURPOSE 4 (2001), https://perma.cc/4765-PVRP.

198

. See Briffault, supra note 110, at 6. Researcher David Rusk has argued for their

creation in light of inter-local failures to solve social problems such as segregation, poverty,

and regional growth management; however, there has been no political momentum. DAVID

RUSK, CITIES WITHOUT SUBURBS 3 (2d ed. 1950).

114 STANFORD LAW & POLICY REVIEW [Vol. 33:79

An alternative to public provision is for localities to contract for broadband

with private providers or partner with state or other government bodies to imple-

ment private contracts. Contracting with private providers reduces the cost to

localities as well as the expertise and staff required. One concern with these con-

tracts, however, is that they are often long-term franchise agreements with non-

compete clauses that can lock localities into unfavorable deals for many years.

199

Competitive bidding is a partial ameliorative, but one that is constrained by the

dearth of broadband providers and resulting lack of competition. Another chal-

lenge for private contracting by localities is to ensure sufficiently fast broad-

band.

200

Local and state governments can also decrease the costs of broadband by

lowering regulatory costs. Statutes or ordinances reducing the costs of rights-of-

way for infrastructure afford savings to companies that could be passed onto con-

sumers, assuming a competitive market. Local ordinances exempting broadband

or internet service providers’ towers from height and design regulations (e.g.,

lattice versus monopole) may also be helpful.

201

Such laws have arisen at the

local level, as well as through state preemption of local zoning power to restrict

the location of towers.

202

In view of the range of options available to localities, why have so many

taken a weak role, or no role at all, in broadband provision? State preemption of

local broadband is a powerful constraint on local government action.

203

Rather

than taking the position that “the more resources the better,” as former FCC

Chairman Tom Wheeler advocates, approximately half of the states restrict mu-

nicipalities from providing broadband either by imposing prohibitive costs and

regulations on municipalities or prohibiting municipal broadband if there is a

commercial provider in the area.

204

The FCC found that these state laws were

“largely sponsored and lobbied for by incumbent providers.”

205

Ten years ago,

special interests including AT&T, T-Mobile, and Qualcomm similarly defeated

proposals by the Federal Trade Commission for federal, nationwide internet ac-

cess.

206

199

. See Stewart, supra note 195.

200

. See id.

201

. For examples of these different legal approaches to tower zoning, see , e.g., Oneida

County Planning and Development Committee Meeting Minutes 3, Nov. 28, 2018, available

at https://perma.cc/WN4H-KQUA (state preemption); Clarke Cnty., Clarke Amends Ordi-

nance to Allow Small-Scale Lattice Communications Towers, NEWS LIST (Feb. 22, 2019),

https://perma.cc/C3GQ-B8RZ (local ordinance).

202

. See id..

203

. See ACLU, supra note 194, at 6.

204

. Wheeler, supra note 191; Chamberlain, supra note 194 (restrictive laws include

forcing “phantom costs” and additional taxes into municipal rates to make them less compet-

itive, as well as restricting expansion of public networks, limiting public funds for broadband

to public-private partnerships, and forcing municipalities to sell broadband wholesale only).

205

. Wheeler, supra note 191.

206

. Parmy Olson, supra note 193.

March 2022] UNTRANSIT 115

Eliminating state preemption laws restricting local broadband provision is a

critically important reform.

207

Removing this barrier would allow localities,

among other players, to enter the broadband market, making it more competitive.

A 2020 study found that consumers in states that do not restrict local broadband

have 10% greater access to low-cost broadband (defined as a standalone internet

plan of $60 per month or less) than residents of states with restrictions.

208

Re-

straints on competition also depress broadband speed, and some state and federal

programs have paid private companies for broadband that was already outdated

at the time it was built.

209

In addition, state preemption laws reduce competition

among localities, who might otherwise create more reliable, affordable broad-

band to attract residents.

2. Local Policing and Remote Work

Remote work will accelerate the movement of local crime to the virtual

realm. Hackers interrupting remote online meetings with threats or hate speech

have made headlines in recent months as schools and workplaces have moved

online. In Winnetka, Illinois, hackers invaded a middle school class conducted

via the online live conferencing platform “zoom” with racist and anti-Semitic

speech, while at a nearby high school hackers displayed a swastika and porno-

graphic images in a zoom for student athletes.

210

Similar reports of “zoom bomb-

ing” and other types of hacking into remote meetings are occurring across the

country. The move to remote work will further heighten demand from residents

for local cybersecurity services. Currently, local governments are typically the

victims of cyberattacks, rather than the investigators or security providers.

211

There is a growing role for local police to investigate and prosecute unau-

thorized entry into digital conferencing, threats, hacking, and other cybercrimes.

Although police in recent years have gained significant experience with online

crimes, particularly child solicitation and pornography, more personnel and dif-

ferent skills are necessary to address hacking and zoom bombing affecting re-

207

. Currently, only 38% of Americans have more than one broadband provider to

choose from. ACLU, supra note 194, at 8-9; cf. Katie McAuliffe, The False Promise of

‘Municipal Broadband’ Networks, THE HILL (June 21, 2017, 4:43 PM EDT),

https://perma.cc/RC5A-V33C (criticizing municipal networks for “civic horror stories like the

failed iProvo network” and limited capacity to update and rebuild).

208

. See Chamberlain, supra note 194.

209

. See Wheeler, supra note 191.

210

. See Karen Ann Culotta, Winnetka Schools Get ‘Zoombombed’ with Pornography,

Racist Rants During Online Meetup with Students; Police Investigating, CHI. TRIB. (April 7,

2020, 6:45 AM), https://www.chicagotribune.com/coronavirus/ct-coronavirus-zoombomb-

ing-winnetka-schools-20200406-6uodnrw2nfajppquiolmk5wvpu-story.html.

211

. Local governments face hacking, phishing, data leaks, and a majority of the nation’s

known ransomware attacks. Jeni Bergal, With Cybercriminals on the Attack, States Help Cities

Punch Back, STATELINE (Feb. 4, 2020), https://perma.cc/G9MD-43RB.

116 STANFORD LAW & POLICY REVIEW [Vol. 33:79

mote work. For example, cyber-security breaches of remote work may necessi-

tate not only digital evidence collection, but data recovery and even restoring

essential services such as online conferencing.

212

In lieu of utilizing police forces, localities can hire municipal cybersecurity

staff or outsource cybersecurity. The chief information security officer (CISO),

who oversees municipal cybersecurity as well as non-digital information (e.g.,

paper), is a relatively new local position that appears poised to grow, particularly

in larger municipalities.

213

This position could be expanded, or augmented with

other staff, to coordinate cyber-services for residents. At present, 62% of locali-

ties employ information technology staff or a CISO, but at concerning levels of

comprehensiveness and quality.

214

A 2017 survey of 200 New Jersey localities

found that 78% lacked an adequate password management policy, 97% didn’t

have a documented disaster recovery plan, 46% stored backup files onsite rather

than in the cloud, and 90% didn’t encrypt sensitive emails.

215

In order to expand

cyber-services to residents, localities will need to boost internal staffing or out-

source cybersecurity prevention and investigations to specialized firms.

For small and poorer localities that lack funds for CISOs or contracting with

private security firms, inter-local collaboration or state and federal government

assistance will be necessary to provide cybersecurity services.

216

For example, a

survey of 200 small local governments in Washington state found that a majority

had no staff at all devoted to cybersecurity or information technology.

217

In some

cases, smaller localities have pooled resources to share a single chief information

security officer for cybersecurity and safeguarding non-digital information.

218

Local governments can also access state and federal assistance if they lack

the resources to build out cybersecurity independently. Online basic training for

police officers in cybercrime is free through the FBI LEEP portal and National

White Collar Crime Center.

219

The Department of Homeland Security provides

212

. See Christian Quinn, The Emerging Cyberthreat: Cybersecurity for Law Enforce-

ment, IACP POLICE CHIEF (Dec. 12, 2018), https://perma.cc/2RUB-T2AW.

213

. See Tod Newcombe, Small Towns Confront Big Cyber-Risks, GOV’T TECH. (Sept.

28, 2017), https://perma.cc/B3XU-PAED [hereinafter Small Towns].

214

. See id.

215

. See id.

216

. See id.; Tod Newcombe, Hacking Pleasantville 52, GOVERNING: THE STATES &

LOCALITIES (Dec. 2011), https://perma.cc/B6PV-HVE5.

217

. Newcombe, Small Towns, supra note 216.

218

. See id. Localities have also pooled resources by joining the non-profit Multi-State

Information Sharing and Analysis Center, which provides incident reporting, services, and

prevention assistance to members. See Multi-State Information Sharing & Analysis Center,

CTR. FOR INTERNET SEC. (2021), https://perma.cc/BT3Y-82H4. The Department of Homeland

Security supports this center. See Kyle Funk, Cooper Martin, Nicole DuPuis, Alana Shark &

Dale Bowen, National League of Cities: Protecting Our Data What Cities Should Know About

Cybersecurity 18 (2019), https://perma.cc/M5C2-7XP9.

219

. Quinn, supra note 212.

March 2022] UNTRANSIT 117

cyber-vulnerability assessment for local governments.

220

At the state level, Geor-

gia offers free cybersecurity consultations to all localities and contracts with mu-

nicipalities to provide general cybersecurity assistance or respond to specific in-

cidents, while Virginia has used the National Guard to perform vulnerability

testing on local government networks.

221

B. Zoning Reforms for Remote Work

In many communities, residents lack certainty about whether they can le-

gally work from home under their municipality’s zoning laws. In some localities,

zoning restrictions against home businesses or working from home remain on the

books, but local government rarely enforces them. In other localities, the zoning

ordinances are vague. For example, some land use ordinances allow only “cus-

tomary” home work (often an unspecified range of professional work) that is

incidental to primary residential usage.

222

These ordinances have created confu-

sion, decreased home businesses, and led residents to flout ordinances and hope

their neighbors do not complain.

223

“Customary work” ordinances are also biased

against new or less established fields of work, and in practice, against lower-

income home workers who are less likely to offer the kinds of professional ser-

vices that usually qualify as customary work.

224

In the academic scholarship, Nicole Garnett has proposed liberalizing the

zoning of home work in residential zones.

225

Patricia Salkin has advocated “spe-

cial exception zoning,” a form of zoning where an ordinance specifies a use, such

as home businesses, in a particular zone subject to conditions to minimize the

impact on the area.

226

If the applicant meets the conditions, the locality must grant

the special exception permit.

227

Unlike a variance, which requires the owner to

220

. Id.

221

. Funk et al., supra note 218, at 18.

222

. AM. SOC’Y OF PLAN. OFF., Information Report No. 54, Zoning Regulation of Home

Occupations, PLAN. ADVISORY SERV. (1953) (describing early approaches that focused on cus-

tomary home work and incidental purpose).

223

. See Garnett, supra note 4. Other localities offer bright-line, but restrictive rules,

that only allow a specified list of professions to work from home. See Mark S. Dennison,

Zoning: Validity of Home Occupation Accessory Use of Residential Property, 33 AM. JUR.

PROOF OF FACTS 3d 547 § 7 (2021).

224

. Home sewing and similar home crafts are often permitted as customary work or in

ordinances that list professions. Overall, however, the ordinances are biased toward profes-

sional work, and in particular desk or computer-based office work. See Dennison, supra note

223, at § 6 (“Home occupation provisions of residential zoning ordinances generally seek to

accommodate professional business uses that are reasonably compatible with the residential

districts in which they are located.”).

225

. See Garnett, supra note 4.

226

. Some localities already use special exception permits for home work. See Salkin,

supra note 4, at 188. For example, Ames, Iowa allows home work so long as the applicant

explains how the proposed remote work or home business meets local standards and regulation

governing home occupations. Id.

227

. See, e.g., N. Shore Steak House, Inc. v. Bd. of Appeals, 282 N.E.2d 606, 649

118 STANFORD LAW & POLICY REVIEW [Vol. 33:79

show that “unnecessary hardship” will ensue if the locality does not authorize an

exception to existing zoning, a lower threshold applies to owners seeking local

approval under special exception zoning.

228

This Article also supports zoning remote work and home businesses in resi-

dential zones, and further advocates an ideological shift from grudgingly allow-

ing home work, to supporting it via zoning. The most remote work-friendly zon-

ing reform is simply to reverse the current default tin order to allow home

businesses and remote work in residential zones, subject to restrictions on spill-

overs and nuisances.

229

This change recognizes the coalescence of work and

home and the reality that exclusive residential use of homes is now the exception,

rather than the norm.

230

Alternatively, we might consider state law provisions for

“sunsetting” existing zoning prohibitions on home work unless local legislatures

affirmatively renew them by a specified date. This would provide an opportunity

for localities to reconsider outdated prohibitions or at least to update “customary

work” ordinances lingering on the books.

Any zoning reform that expands the legality of work from home will require

a system for regulating impacts on neighborhoods. Negative spillovers occur

when events in one context, such as home-based work, have deleterious conse-

quences in other contexts, such as the neighborhood or community.

231

For exam-

ple, certain forms of home work, such as operating dance studios, hair salons,

health or dental clinics; providing automotive repair; or manufacturing, may dis-

turb neighbors and reduce property values. Rather than prohibiting home work

entirely or by category (i.e., non-customary work), localities should regulate the

spillovers themselves.

232

Nuisance law is one longstanding option for regulating

impacts, but it suffers from vagueness and subjectivity in defining what consti-

tutes a nuisance and often requires costly litigation to enforce.

233

A more promising approach, which scholars have advocated and some lo-

calities have adopted, is to use performance zoning that allows home businesses

subject to restrictions.

234

Performance zoning regulates spillovers directly via or-

dinances that limit vehicle trips, deliveries, equipment use, increases in waste

disposal or sewage use, noise, and the presence or size of commercial signs for

(1972).

228

. Id. (“The burden of proof of an applicant for a special exception permit is much

lighter than that required for a hardship variance.”).

229

. See Garnett, supra note 4.

230

. See supra Part II.A.

231

. For a description of local property spillovers and an unconventional analysis of

their resolution through covenanting, see Robert C. Ellickson, Alternatives to Zoning: Cove-

nants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681, 684-88 (1973)

(describing spillovers as “impacts on nonconsenting outsiders.”).

232

. See Garnett, supra note 4, at 1232-36.

233

. See, e.g., Murray N. Rothbard, Law, Property Rights, and Air Pollution, 2 CATO J.

55, 83-84 (1982) (describing the difficulty in defining what constitutes excessive noise in noise

nuisances).

234

. Patricia Salkin has advocated a performance zoning approach. See Salkin, supra

note 4, at 189-195.

March 2022] UNTRANSIT 119

home work in residential zones.

235

This approach is more hospitable to low-in-

come and less-educated home workers who are less likely to engage in “invisi-

ble” computer or desk work.

Importantly, municipalities are likely to have the technological capacity in

the near future to measure the impacts of remote work (e.g., traffic to and from

a home business, parking strain, noise, etc.) via sensors and cameras, rather than

relying on regulation by proxy based on the type of home work. The reduction

in monitoring costs from technology will enable localities to regulate impacts

directly, rather than prohibiting home businesses wholesale (and will raise sig-

nificant privacy issues for land use law).

As remote work continues to proliferate, rather than prohibiting home busi-

nesses and remote work, we may see localities planning for them as a component

of comprehensive planning. Comprehensive planning refers to the local process

of planning for a community’s physical and economic development by describ-

ing existing zoning and infrastructure and offering plans for future uses, needed

infrastructure, and a general vision for development.

236

States authorize, and in

some instances require, localities to engage in comprehensive planning.

237

Lo-

calities will need to plan for population increases or decreases due to remote

work, increasing internet connectivity needs, zoning for remote work, and, as

discussed next, private or public provision of workspaces.

C. Incentive Zoning for Remote Work Centers

Remote work or “co-working” centers are spaces that home workers can use

instead of their residences. These spaces are especially attractive to home work-

ers with limited residential space or who prefer more social interaction.

238

As a

result of the increase in work from home, there has been a surge of businesses

235

. Unfortunately, some ordinances described as performance zoning nonetheless reg-

ulate features of remote work that do not necessarily impact neighbors or the community. For

example, some localities forbid home work that exceeds a specified square footage of the

home, regulate the number of employees working in the home, or limit the number of home

occupations per dwelling unit in order to reduce the risk of externalities. In my view, this

iteration of performance zoning, which targets categories of home work and often focuses on

features inside the home, is less efficient and overly restrictive. It drifts back to early zoning

approaches, such as allowing only customary home work, that regulate features of remote

work at risk for externalities rather than the externalities themselves. See Dennison, supra note

223, at §§ 5-7.

236

. See ERIC DAMIAN KELLY, COMMUNITY PLANNING: AN INTRODUCTION TO THE

COMPREHENSIVE PLAN 2-3 (2010). Notably, the digital needs of citizens and the swell in re-

mote work may also accelerate the trend of shortening the window of time for comprehensive

plans to favor near-range planning.

237

. Because it is difficult and imprecise to plan far into the future—a problem that

worsens when planning includes internet and broadband connectivity—near-term planning

will be more useful than creating comprehensive plans that forecast the next 10-15 years. See

Edward J. Sullivan & Jennifer Brager, Recent Developments in Comprehensive Planning, 44

URB. LAW. 615, 615 n.4 (2012).

238

. See Bloom, supra note 99.

120 STANFORD LAW & POLICY REVIEW [Vol. 33:79

providing shared office and conference spaces.

239

Some workspace suppliers

have faltered under mismanagement, such as the high-profile troubles of flexible

office space supplier WeWork.

240

Overall, however, demand for remote work-

spaces appears to be growing.

241

Residential real estate developers have also re-

sponded to the trend of working from home and are increasingly developing

shared work or multi-purpose spaces within high-end apartments and condomin-

iums.

242

Most often, private work centers arise as a result of market forces. However,

in communities that lack these spaces, incentive zoning is a tool that can spark

the interests of work center developers and operators. Incentive zoning offers a

zoning exception to private developers that allows denser or more intrusive uses

than otherwise would be permitted, fast tracks zoning and permitting approvals,

reduces fees, or some combination.

243

For example, pursuant to an incentive zon-

ing ordinance, a zoning commission could approve a remote work center that

exceeds the maximum footprint or height limit for the zone by a specified per-

centage or amount. Another form of incentive zoning is for localities to alter

voting rules to make it easier for applicants to gain approval.

244

For work center

operators renting existing commercial real estate, localities might offer incen-

tives in the form of exceptions from parking requirements or reduced fees or

inspections.

The most extreme, and controversial, form of incentive zoning is for states

to preempt local decision-making altogether and require the locality to approve

a certain type of development or offer an incentive for it.

245

For example, Cali-

fornia sought to require localities to exempt “transit-rich housing projects”

within a certain distance from major transit stops or bus corridors from density

controls, minimum parking requirements, design standards, and height re-

strictions.

246

Although this bill did not pass, more limited iterations of state

239

. The number of co-working spaces globally is projected to exceed 40,000 by 2024.

Global Coworking Growth Study 2020, COWORKING RSCH. (July 3, 2020),

https://perma.cc/Q2D6-S53X.

240

. See Dakin Campbell, How WeWork Spiraled From a $47 Billion Valuation to Talk

of Bankruptcy in Just 6 Weeks, BUS. INSIDER (Sept. 28, 2019, 7:19 AM),

https://perma.cc/KJ6G-QVZK.

241

. See COWORKING RSCH., supra note 239.

242

. See id.

243

. See MARYA MORRIS, INCENTIVE ZONING: MEETING URBAN DESIGN AND

AFFORDABLE HOUSING OBJECTIVES 1, 7-8, 11-12 (2010).

244

. See, e.g., MASS. GEN. LAWS ANN. ch. 40A, § 5 (West 2021) (changing state law from

local vote to approve to zoning of multi-family housing in eligible locations as of right); J.

Spencer Clark, Rocking the Suburbs: Incentive Zoning as a Tool to Eliminate Sprawl, 22 BYU

J. PUB. L. 255, 282 (2007) (example of incentive zoning ordinance that requires local approval

in certain circumstances of “substitute improvements” by developers to qualify the develop-

ment for a portion of the density bonuses provided in exchange for open space or recreation).

245

. See Infranca, supra note 176.

246

. S. 827, 2018 Leg., 2017-2018 Reg. Sess. (Cal. 2018).

March 2022] UNTRANSIT 121

preemption have been successful.

247

One could imagine similar state legislation

that requires localities to offer zoning exceptions or perks to remote work centers

occurring in states where remote work is prevalent and of great importance to the

state economy.

Another zoning option is for localities to include remote work centers as

listed “special exceptions” that are allowed within zones, ideally including resi-

dential zones, subject to approval.

248

For example, a special exception zoning

ordinance could specify that remote work or co-working centers are permissible

uses within a particular zone if approved by the zoning commission. To approve

the special exception, the zoning commission must find that the use will not cre-

ate a nuisance or other harm to neighbors. As discussed above in Part IV.B, spe-

cial exception zoning is a well-established tool in land use law that balances the

flexibility needed for beneficial use with the prevention of neighborhood harm

or property value decline.

249

There have also been calls for government provision of public remote work

centers or subsidization of private ones. W.C. Bunting has advocated for govern-

ment-subsidized telework centers to assure employers of worker productivity

and to provide physical space and a psychological outlet for workers.

250

The fed-

eral government General Services Administration has provided remote telework

centers for federal workers since 1993 and extended space on a fee basis to state

and private workers since 1997.

251

The most productive role for public or non-

profit work centers is likely in economically depressed areas where private pro-

vision will not occur and residents frequently lack residential space, privacy, and

quality broadband. As an alternative to building or renting dedicated work cen-

ters, localities could create or expand workspaces in libraries and other public

buildings.

Localities might also—or instead—play a coordinating role among different

employers who are seeking to share a remote work center. For example, a form

of conditional contracting could be used where a locality contracts to build or

lease a remote work center once a certain number of employers commit to a lease.

When the threshold number of employers is met, the employers are obligated to

the lease and the locality (typically through a private development partner) must

provide the work center. A locality could play a similar role in aggregating and

coordinating different employers to mutually commit to a private commercial

lease or development.

247

. These bills and statutes illustrate a growing trend toward state preemption. See In-

franca, supra note 176, at 824 (“[S]tates have grown increasingly willing to preempt local

governments across a range of policy realms.”).

248

. For an explanation of special exception zoning, see Part IV.B above.

249

. Cf. Salkin, supra note 4, at 188 (discussing the use of special exception permits to

allow certain home professions or businesses in residential zones).

250

. See Bunting, supra note 5.

251

. See Omnibus Consolidated Appropriations Act of 1997, tit. IV, § 407(a), 40 U.S.C.

§ 587 (2000) (enacted as Pub. L. No. 104-208, 110 Stat. 3009 (1996)).

122 STANFORD LAW & POLICY REVIEW [Vol. 33:79

D. Mixed-Use Zoning

Remote work may also affect planning and zoning by increasing demand for

retail, dining, and other amenities proximate to residences. Currently, single-use

zoning that separates residential homes from retail, business, and other uses dom-

inates suburbs and many exurbs.

252

A uniform subdivision of single-family

homes with no amenities such as food or entertainment nearby may be undesir-

able for remote workers who miss the stimulation and amenities of centralized

workplaces.

There are a variety of options for increasing the proximity of amenities to

home workers. The new urbanism movement advocates communitywide mixed-

use zoning that intermingles homes, recreation areas, certain businesses, and re-

tail, and emphasizes walkability and shared neighborhood spaces.

253

Complete

retrofits to create new urbanist communities are generally cost-prohibitive in es-

tablished suburbs and cities.

254

More viable alternatives for localities with amen-

ity-hungry remote workers include allowing more variances for non-residential

uses in residential zones, creating limited mixed-use zones that provide retail,

recreational, and dining spaces, relaxing regulations to allow food carts and

trucks, and improving transit linkages or walking/bike paths to downtowns or

other retail areas. As remote work expands, it is likely we will see more demand

from residents for local governments to rezone and build in these ways.

E. Relocation Incentives for Remote Workers

If a locality wants to garner the benefits of remote work, the most direct route

is to pay for remote workers. Historically, localities and states have courted cor-

porations with cash grants, rebates, and tax credits to entice them to locate in

certain areas, often cities.

255

Now that many workers can opt for remote work

and locate across the state or country, the returns on municipal or state invest-

ment in employers are less certain and localities may do better to woo workers.

A few cities have started to offer financial incentives for remote workers to

relocate. For example, the Tulsa Remote program, a government-non-profit part-

nership, pays 250 remote workers $10,000 each year to move to Tulsa and stay

252

. See The Movement, CONG. FOR THE NEW URBANISM, https://perma.cc/ZQX6-YQKJ

(archived Feb. 6, 2022).

253

. See Brian W. Ohm & Robert J. Sitkowski, The Influence of New Urbanism on Local

Ordinances: The Twilight of Zoning?, 35 URB. LAW. 783, 783-84, 788-93 (2003).

254

. Cf. Robert Steuteville, Sprawl Repair Is Essential, Unavoidable, BUILD A BETTER

BURB, https://perma.cc/PH35-2R85 (archived Feb. 6, 2022) (describing the case against new

urbanist retrofit and defending the need for sprawl repair).

255

. See Christian Gonzales, Rachel Schaff & Sarah Tucker Ray, How State and Local

Governments Win at Attracting Companies, MCKINSEY & CO.: PUB. & SOC. SECTOR (Sept. 13,

2019), https://perma.cc/ZK46-DD9Y.

March 2022] UNTRANSIT 123

for at least a year.

256

The program also offers co-working space and social events

for the incoming remote workers, coordinated by a non-profit agency.

257

Savan-

nah, Georgia, pays technology workers with three years or more experience in a

technology field $2,000 toward moving expenses if they relocate.

258

Vermont has

made similar financial incentives available to workers who relocate.

259

With the

recent coronavirus pandemic and the resulting increase in remote work, other

cities are eyeing pay-to-relocate incentive programs.

260

Although incentive programs have successfully attracted remote workers,

there are concerns about their efficiency. Because localities lack information

about worker preferences and intentions, these programs may offer windfalls to

workers who were planning to move to a particular city anyway. It is also possi-

ble that workers, particularly in the highly mobile demographic group of young

professionals without children, will relocate but then leave in short order. Stag-

gered, backloaded payment schedules or payback provisions may lessen strategic

behavior of this sort. Alternatively, the target of relocation incentives may not be

the remote workers themselves, but rather the signal such programs send and the

national attention they garner. With remote or technology worker incentive pro-

grams, a locality is signaling that it welcomes remote workers, and that the city

is more innovative than perhaps perceived.

Relocation incentive programs also carry the risk of exclusion or bias in the

selection process. Tulsa Remote, for example, interviews applicants for the relo-

cation bonus, a process reminiscent of the controversial resident selection pro-

cess used by co-op residential apartments.

261

The program also excludes certain

kinds of remote workers, such as electronically mediated workers (e.g., uber

drivers).

262

Electronically mediated workers are more likely to be black and have

lower incomes than technology workers.

263

This rule illustrates how selection

criteria, perhaps unintentionally, can maintain economic and racial segregation.

V. THE LOCAL ROLE IN REMOTE WORK: CONSEQUENCES AND CONCERNS

This Part considers the potential costs of expanding land use law to support

remote work. I do not discuss every consequence of remote work, but rather fo-

cus on some key concerns. Specifically, I examine whether remote work will

harm primary caregivers of children (who are most often women), low-income

256

. TULSA REMOTE (2022), https://perma.cc/M9W3-6L79 (to locate, scroll to ‘Bene-

fits’).

257

. Id.

258

. Dyana Bagby, Savannah Wants to Pay Tech Workers to Move to their City,

ATLANTA BUS. CHRON. (June 11, 2020, 5:00 EDT), .

259

. See Remote Worker Grant Program, VT. AGENCY OF COM. & CMTY. DEV.,

https://perma.cc/8GPJ-PG2R (archived Feb. 6, 2022), https://perma.cc/8GPJ-PG2R.

260

. See id.

261

. See TULSA REMOTE, supra note 256.

262

. See id.

263

. See U.S. BUREAU OF LAB. STAT., supra note 79.

124 STANFORD LAW & POLICY REVIEW [Vol. 33:79

workers, labor productivity, and the flourishing of cities. Of these concerns, the

potential for distributional harm to lower-income workers and residents is the

most compelling; this Part also suggests ways to mitigate this potential impact.

Of note, the issue of how to adapt place-based taxation to a mobile workforce is

beyond the scope of this Article; however, it will become a point of contention

in the near future.

A. Gender and Career Advancement

One concern is that remote work may hinder the professional advancement

of primary caregivers of children, who are disproportionately women. Whether

remote work is harmful to primary caregivers depends on whether one views the

question through the lens of family harmony or professional advancement. The

weight of the evidence finds that remote work decreases work-family conflicts,

presumably by allowing workers greater flexibility in the timing of their work.

264

Notably, remote workers do more domestic work when their paid work occurs at

home.

265

The evidence is equivocal on whether telecommuting depresses career

success, often measured in studies by the telecommuter’s salary, whether any

promotions were received, and the strength of the telecommuter’s relationships

with supervisors,.

266

A 2020 study by Timothy D. Golden & Kimberley A. Ed-

dleston found that the extent of telecommuting (measured by hours in versus out

of a centralized workplace), how widespread or “normative” telecommuting is

at the firm, the amount of face-to-face-contact with supervisors, and the degree

to which the employee takes on supplemental work predict whether remote work

depresses professional advancement.

267

Limiting local government or other support for remote work in order to pro-

mote gender equity would infringe upon the decisional autonomy of women and

264

. See Gajendran & Harrison, supra note 8.

265

. See Mary C. Noonan, Sarah Beth Estes & Jennifer L. Glass, Do Workplace Flexi-

bility Policies Influence Time Spent in Domestic Labor?, 28 J. FAM. POL’Y 263, 279-80 (2007).

Telecommuting and other remote work can also create porous boundaries between work and

personal time and promote increased hours. Noonan & Glass, supra note 154, at 45.

266

. See id. at 1535 (remote work positively correlated with quality of employee-super-

visor relationship, although it is not clear if this is because employees with better relationships

with supervisor are more often granted permission to work from home); Donna Weaver

McCloskey & Magid Igbaria, Does “Out of Sight” Mean “Out of Mind”? An Empirical In-

vestigation of the Career Advancement Prospects of Telecommuters, 16 INFO. RSCH. MGMT. J.

19, 27-28 (2003) (telecommuting did not negatively affect advancement prospects measured

by supervisors or performance evaluations); but see N. Lamar Reinsch, Jr., Relationships Be-

tween Telecommuting Workers and Their Managers: An Exploratory Study, 34 J. BUS. COMM.

343, 358 (1997) (after initial “honeymoon period” of telecommuting, quality of manager-tele-

commuter relationship declined).

267

. Timothy D. Golden & Kimberly A. Eddleston, Is There a Price Telecommuters

Pay? Examining the Relationship Between Telecommuting and Objective Career Success, 116

J. VOCATIONAL BEHAV. 103348, 103348 (2020) (comparison of matched sample of telecom-

muters with non-telecommuters found that telecommuters did not experience fewer promo-

tions but did experience less salary growth).

March 2022] UNTRANSIT 125

other primary caregivers. If remote work disadvantages women, it appears a dis-

advantage that many are willing to shoulder. Women are slightly more likely

than men to work from home, with 26% of women compared to 22% of men

doing some or all of their work at home.

268

Women with children under twelve

years old and some college education are markedly more likely than their male

counterparts to report a preference for a full, five day per week work-from-home

schedule.

269

With respect to willingness to pay for the ability to work from home,

a recent study by Barrero, Bloom, and Davis found that women and people with

children in their households valued remote work at a modestly higher percentage

of salary compared to other groups.

270

One might argue that the preferences of

women regarding caretaking of children are socially constructed and thus should

not be reified by employment practices.

271

However, declining to support worker

preferences for flexible and remote work on this ground would replace a socially

constructed role for women as primary caregivers with an equally constructed

preference for privileging work advancement over family life.

If detrimental effects based on gender or caregiving do emerge, it is possible,

though inadvisable, for laws to require employers to provide employees with the

option of working in a centralized workplace. Such a rule would increase oper-

ating costs for businesses, possibly decrease employee pay, and distort the evo-

lution of labor markets. Any attempt to mandate a centralized, non-residential

workplace alternative would also dampen start-up businesses, approximately

half of which operate from home according to a 2009 Small Business Admin-

istration study.

272

Notably, women-owned start-up businesses are a rapidly grow-

ing sector of the start-up economy that would be disadvantaged by laws requiring

non-remote options for employees, unless start-ups are exempted.

273

On balance,

requiring that employees retain the option to work in a centralized workplace, or,

alternatively, imposing burdensome regulation on remote work in order to

dampen it, is economically detrimental and misaligned with the preferences of

parents, particularly women.

268

. U.S. BUREAU OF LAB. STAT., supra note 79, at 2.

269

. Barrero, Bloom & Davis, supra note 21, at 13.

270

. Id. at 24. In the study by Mas and Pallais of job applicants, women reported higher

willingness to lose pay in order to work from home than men. Mas and Pallais, Valuing Alter-

native Work Arrangements, supra note 96, at 3752.

271

. I thank Kathy Baker for her thoughtful comments on this point.

272

. Ying Lowrey, Startup Business Characteristics and Dynamics: A Data Analysis of

the Kauffman Firm Survey 5 (Aug. 15, 2009) ((SBA Off. of Advoc.), https://perma.cc/DTE9-

NF4J.

273

. KATHERINE INMAN, WOMEN’S RESOURCES IN BUSINESS START-UP: A STUDY OF

BLACK AND WHITE WOMEN ENTREPRENEURS 1, 1-4 (2000) (women’s start-ups are the “fastest

growing sector” of new business start-ups).

126 STANFORD LAW & POLICY REVIEW [Vol. 33:79

B. Equity Troubles: Subsidizing Remote Work Amenities

In an era of increasing remote work, lower-income and frontline workers

may experience absolute welfare losses, as well as increased relative disad-

vantage compared to their higher-income counterparts. Supporting remote work

locally may compound these effects, benefitting middle- and upper-income

workers at the expense of lower-income workers and unemployed individuals.

274

In addition to inequities based on income, there are racial and gender disparities

in remote work trends. People of color and women are overrepresented in “front-

line” industries that do not benefit from remote work and are vulnerable to harm

from decreasing retail or restaurant work in cities as remote workers disperse.

275

Distributional impacts from local support for remote work and from remote

work itself can occur in a number of ways. First, in economically heterogenous

localities, local provision of remote work amenities may funnel investment to

more affluent residents and away from distressed communities or more pressing

needs. For example, a small city that invests in remote work facilities and other

amenities might shift funds to higher-income residents that could have been spent

on social services or other local public goods to benefit low-income residents.

Of course, this concern would not apply to the many localities in the United

States that are segregated by income, as those localities will likely deliver work

amenities, whether for transit, remote work, or gig work, targeted to their specific

populations.

276

However, it is possible that remote work amenities may further

segregate residents economically by inducing sorting among professional work-

ers seeking remote-work friendly localities and in-person workers interested in

other amenities.

Second, a large-scale shift to remote work, aided by localities, could harm

those whose employers offer remote work, but who lack the privilege of space

in their homes to exercise that option.

277

Remote workers based in their homes

274

. The equity calculus is nuanced with remote work benefiting some groups, such as

the physically disabled and rural residents. See Sara Sutton Fell, Connecting Rural Areas to

Remote Work, GOV1 (Nov. 8, 2017), https://perma.cc/X53T-JGGT. It is possible that remote

work will benefit elderly individuals who work or wish to work but face mobility or driving

challenges. However, it is not clear if elderly workers, on average, will find it more difficult

to utilize the technologies common in remote work.

275

. HYE JIN RHO, HAYLEY BROWN & SHAWN FREMSTAD, CTR. FOR ECON. & POL’Y

RSCH., A BASIC DEMOGRAPHIC PROFILE OF WORKERS IN FRONTLINE INDUSTRIES 1-3 (2020),

https://perma.cc/26WY-4N2D (finding that 41.2% of frontline workers are Black, Hispanic,

Asian-American/Pacific Islander, or another non-white category and 64.4% of frontline work-

ers are women); see also Matt L. Huffman & Philip N. Cohen, Racial Wage Inequality: Job

Segregation and Devaluation Across U.S. Labor Markets, 109 AM. J. SOC. 902, 924, 928-29

(2014) (discussing barriers to black entry into higher-paying jobs).

276

. See Ann Owens, Building Inequality: Housing Segregation and Income Segrega-

tion, 6 SOC. SCI. 497, 513-18 (2019) (lack of economic diversity in housing).

277

. See William C. Clark, Marinus C. Deurloo & Frans M. Dieleman, Housing Con-

sumption and Residential Crowding in U.S. Housing Markets, 22 J. URB. AFF. 49, 53-54

(2000) (finding that almost 12% of households in the lowest income decile had a room short-

age during the study period); Gary W. Evans, The Environment of Childhood Poverty, 59 AM.

March 2022] UNTRANSIT 127

benefit from, and in many cases require, private spaces and quiet.

278

Low-income

workers occupy homes with less square feet per occupant and often lack private

rooms or home offices.

279

A dearth of residential space may create barriers to

working in industries that have shifted to remote or hybrid remote work. Notably,

some of the reforms proposed in this Article, such as public work centers and

spaces, could ameliorate the problem of disparate access to residential space for

remote work.

Third, low-income individuals may be more likely to own or work for home-

based businesses that generate neighborhood spillovers, such as noise or fumes

from home workshops. As a result, lower-income people, and the neighborhoods

in which they work from home, are likely to face more onerous regulation than

higher-income residents who engage in computer-based remote work. For exam-

ple, working-class Black women are disproportionately represented as hair styl-

ists and hair salon owners, in some cases working out of their homes.

280

Home-

based hair salons increase parking and foot traffic and require chemical storage,

subjecting owners to more local regulation. This disparity underscores the im-

portance of the zoning reforms that regulate impacts from home businesses, ra-

ther than prohibiting or severely restricting certain types of home businesses (as

discussed in Part IV.B above). Localities may also opt to absorb a greater degree

of disturbance and spillovers from home businesses in order to mitigate the rel-

ative disadvantage faced by certain types of home workers.

Fourth, there are secondary effects on service jobs in offices and business

districts from a steep rise in remote work. As professionals increasingly work

from home, there is less commercial real estate and therefore fewer office jobs

in reception, cleaning, security, food service, or city retail.

281

There may be an

uptick in demand for work in private homes or suburban restaurants and retail,

but it is not clear whether this will generate the same number and quality of jobs

as centralized workplaces. It seems unlikely, however, that depressing the local

role in remote work zoning and support will substantially improve this problem.

The massive shift in labor markets toward remote work is the primary driver of

PSYCH. 77, 88 (2004) (The residences of the poor are “more crowded, noisier, and more phys-

ically deteriorated.”); Dowell Myers, William C. Baer & Seong-Youn Choi, The Changing

Problem of Overcrowded Housing, 62 J. AM. PLAN. ASS’N 66, 66 (1996) (U.S. Census data

shows a strong inverse relationship between household income and the percentage of house-

holds living in homes with more than one person per room, a common measure of residential

crowding).

278

. Cf. Bloom et al., supra note 97, at 180 (study that required remote workers in a

randomized experiment to have independent workspaces because of the importance of dedi-

cated space to work-from-home productivity).

279

. See Clark, Deurloo & Deileman, supra note 277, at 53-54; Myers, Baer, & Choi,

supra note 277, at 66.

280

. ADIA HARVEY WINGFIELD, DOING BUSINESS WITH BEAUTY: BLACK WOMEN, HAIR

SALONS, AND THE RACIAL ENCLAVE ECONOMY 36-37, 64 (2008).

281

. See Barrero, Bloom & Davis, supra note 21, at 31 (estimating 5-10% or greater

drop in consumer spending in Manhattan and San Francisco due to remote work).

128 STANFORD LAW & POLICY REVIEW [Vol. 33:79

shrinking service jobs in business districts, not local government zoning and pro-

vision of remote work amenities.

Rather than viewing local government support of remote work as solely dis-

advantaging low-income communities, we should also consider how remote

work zoning and amenities could help disenfranchised neighborhoods. Some cit-

ies are now prioritizing socioeconomic and racial equity, as Chicago has in its

recent “We Will Chicago” three-year plan.

282

In these municipalities, remote

work policy at the local level might focus on free municipal internet access or

public work centers. Low-income residents are likely to value these amenities

more highly than affluent individuals who can afford to pay for them and who

typically live in areas with better transit options.

283

Another option is for locali-

ties to focus on services and amenities that benefit electronically mediated gig

work, which tends to pay less than telecommuting and boasts a more diverse

workforce.

284

Funding also might be used to provide shared kitchen, workshop,

and other spaces in economically depressed neighborhoods, and to offer remote

work job training and placement.

C. Productivity

Another concern is that remote work, supported by the local policies I have

suggested, will dampen worker productivity. The research does not substantiate

a global drop in productivity, but rather finds that whether remote work increases

or decreases worker output depends on the task and compensation model.

Productivity increases when remote work entails discrete, easily measurable con-

tributions and does not require group problem solving or high levels of worker

coordination.

285

For example, researcher Nicholas Bloom randomly assigned 249

Chinese call center workers at a travel agency to work either remotely or in the

office for nine months, with a significant share of their compensation based on

sales.

286

The productivity of the remote workers jumped by 13% over the course

282

. WE WILL CHI., Pillars, Themes & Principles (last updated Sept. 20, 2021, 4:46

PM), https://perma.cc/A9B2-3JJ9.

283

. Of course, the same political forces that direct transportation routes to more affluent

areas could do the same with work centers and other remote amenities. Political capture of

remote work centers seems less likely to occur because such investments are both less valuable

and more decentralized than mass transit routes, making the costs of political capture higher

and its payoffs smaller.

284

. See U.S. BUREAU OF LAB. STAT., supra note 79.

285

. See, e.g., Bloom et al., supra note 97, at 169-170 (successful experiment in work

from home for workers at a travel agency call center charged with bookings and similarly

discrete tasks); COUNCIL OF ECON. ADVISORS, WORK-LIFE BALANCE AND THE ECONOMICS OF

WORKPLACE FLEXIBILITY (2010); Jerry Useem, When Working From Home Doesn’t Work,

ATLANTIC (Nov. 2017), https://perma.cc/YYH3-BUSN. With the exception of the Bloom et

al. experiment, these studies assessed workers who had self-selected into remote work and

thus were more likely to have situations, jobs, or work styles conducive to remote work than

the average worker.

286

. Bloom et al., supra note 97, at 168-69. The remote workers were also less likely to

March 2022] UNTRANSIT 129

of the experiment without a decrease in work quality, primarily due to logging

in for a higher amount of time to take calls during their shifts.

287

However, other

research has found that productivity suffers when the remote work requires group

collaboration to solve problems, because communication is typically slower,

more burdensome, and confined to a smaller pool of co-workers than when col-

laborators are physically proximate.

288

The effect of remote work on productivity

also depends on whether employee compensation is via salary or performance

pay, with the latter tending to boost home work productivity.

289

Even if remote work decreases productivity in certain jobs, it is not evident

why this should affect local government support for remote work unless the num-

ber of remote workers substantially declines as a result. Employers are highly

motivated and optimally situated to engineer remote work policies that do not

compromise productivity.

290

In the event productivity lags, businesses can return

workers to centralized workplaces. It seems unlikely, however, that widespread

worker recall based on productivity losses will occur. The most recent research,

a 2021 study by Barrero, Bloom, and Davis, estimates a 5% increase in produc-

tivity, including time savings from reduced commuting, based on survey re-

sponses from 30,000 workers about their work-from-home efficiency.

291

Many

of the surveyed employees, especially educated and higher-income workers, re-

ported that their employers planned to continue to allow remote work days even

when the COVID pandemic ends.

292

quit than their in-office counterparts. Id. at 192 (the quality measures in the study were the

number of phone calls that culminated in travel orders and a sampling of telephone recordings

rated for quality by external raters). In a second phase of the experiment, individuals who

elected to remain working remotely after a nine-month initial period showed increased produc-

tivity of 22%, presumably because those who worked best at home chose to remain there. Id.

at 170; cf. Ralph D. Westfall, Does Telecommuting Really Increase Productivity?, 47 COMM.

ACM 93, 96 (2004) (non-empirical article concluding that if telecommuting increased produc-

tivity, “companies that employ large numbers of knowledge workers would have adopted tel-

ecommuting on a large scale a long time ago, on a mandatory basis where necessary, and

would be continuing to promote it heavily.”).

287

. Bloom et al., supra note 97, at 169-70.

288

. Longqui Yang et al., The Effects of Remote Work on Collaboration Among Infor-

mation Workers, NATURE HUM. BEHAV., Sept. 9, 2021, at 43, 44 (remote workers communi-

cated more by email than meetings, collaborated more with co-workers they had “strong ties”

with as opposed to weak ties, and had patterns of communication that were more “siloed.”);