A Day Labor Home at Home Depot

The Los Angeles Daily News recently ran a story reporting that the city council is considering requiring Home Depot and other home improvement centers to set aside space for day laborers at their retail stores. While not styled as "day labor centers," something similar is clearly contemplated. The space set aside would have to have plumbing. The measure is putatively aimed at reducing negative spillovers that are threatened when large numbers of day laborers assemble at the centers. Since the laborers would not be there if it weren't for Home Depot, it stands to reason that Home Depot should be held responsible to do something about them. So goes the reasoning behind this and similar proposals in other communities. Home Depot is playing ball: it wants to work with the city to come up with a way to accommodate the workers and "reduce the impact on neighboring communities."

Finding ways to control land use and "reduce the impact on neighboring communities" is nothing new. The old english common law developed the law of nuisance to give life to the notion that one owner should not use her land in such a way as to harm her neighbor. A tannery in a urban area might be shut down, while a piggery in the country would be allowed to continue to operate. Minor annoyances were to be tolerated, by and large. Developed on a case by case basis, the judge-made rule of nuisance was the work horse of land use control into the 20th century.

Around 100 years ago, New York City adopted the nation's first zoning ordinance. The idea was that, instead of waiting for some disgruntled landowner to sue her neighbor for causing a nuisance, the city would make a pre-emptive strike. Segregate incompatible uses from the start, and you'd avoid many lawsuits for nuisance. The tanneries would have a place to operate, free from risk of being sued. Homeowners could sleep well knowing that no tannery would ever open up next door. With the exception of Houston, Texas, today all major U.S. cities have adopted zoning ordinances.

Nuisance and zoning are valuable tools of controlling disputes over the proper use of land. But the presence of these tools, and the policy views they reflect seem to have gotten lost in the debate over requiring big box home improvement stores to set aside space for day laborers. Standing in a parking lot waiting for work may cause traffic to slow. It may be an affront to a passerby who believes more needs to be done to discourage the undocumented from immigrating to this country. But it is a far cry from the tannery in the residential district or, as one court put it, the "pig in a parlor," that typifies a nuisance case. Instead, it is part of the deal that comes with living in civilized society in close proximity to others. Nuisance law would likely not bother with this.

So too, zoning. The whole point of zoning is to separate incompatible uses. Home Depot and other big box retailers have already been zoned away from sensitive land uses. You never find home improvement stores in residential neighborhoods. Even before this decade's resurgence of day laborers, cities kept Home Depot in its place. Worries about traffic and a desire to protect single family neighborhoods from commerce led communities to separate businesses and residences. Cities lumped home improvement stores with other retailers and gave them a zone of their own.

Are the harms posed by day laborers congregating in parking lots so different than those posed by other big box retailers? Is Home Depot hurting the business of Target, or Wal Mart, or Bed Bath and Beyond next door? Don't pedestrians and automobiles already co-exist in the large parking lots that come with every big box retailer? Having already segregated Home Depot from many other uses, is it really necessary for cities to require it house day laborers as a condition of operating at all?