ARLINGTON, Va.—Today, the Institute for Justice (IJ) sent a letter to town officials in Yarmouth, Massachusetts, calling on them rescind its illegal ban that’s forced local lobsterman and resident, Jon Tolley, to stop selling his freshly-caught lobster and fish from his home—as he has for half a century. Shutting down Jon’s beloved local business is immoral, unfair, and likely unconstitutional.
“Before there was zoning, hardworking folks like Jon commonly fished the waters off Cape Cod and sold their catch from their homes,” said IJ Senior Attorney Ari Bargil. “Jon’s use of his residence to earn a living is a traditional, peaceful use. Yarmouth’s zoning laws must promote public health and safety, not destroy a decades-old livelihood.”
Jon is a third-generation lobsterman who has sold fresh lobsters and fish from his home in West Yarmouth since 1975. Jon’s father did the same for 30 years—from the same home. Jon’s business has become a staple in the community, having sold lobsters and fish to thousands of customers, as the Cape Cod Times reported. On March 7, Jon was issued a violation notice for selling lobsters at his home. Yarmouth threatened Jon with daily fines of up to $300 if he didn’t cease operations. Under Yarmouth’s zoning regulations, retail sales aren’t allowed in residential zones. Intriguingly, the town’s enforcement action was the result of an alleged complaint—the first in more than half a century. Now, Jon is appealing his violation with the Yarmouth Zoning Board of Appeals. His appeal will be heard tomorrow at 6 p.m. at the Yarmouth Town Hall Main Hearing Room.
Yarmouth’s weaponization of its zoning code to shut down a popular local business is morally wrong, illegal by the town’s own rules, and almost certainly unconstitutional. Older versions of Yarmouth’s bylaws allowed for retail sales of fish and lobster in residential areas. Jon’s selling of lobsters and fish predate the town’s more recent changes, meaning his activities should be grandfathered in—and therefore legal.
Additionally, prohibiting Jon’s establishment from operating while letting other businesses in residentially zoned areas stay open violates the equal protection clauses of both the Massachusetts and U.S. Constitutions. The Massachusetts Supreme Judicial Court has also stated that zoning codes can’t be “clearly arbitrary and unreasonable.” They must have some relational grounding in protecting public health, safety, morals, or general welfare. Jon and his family have sold lobsters from his house for several decades with no evidence of any negative impacts—clearly showing Yarmouth’s zoning ordinance is completely arbitrary.
IJ is a national nonprofit law firm with an expertise in defending Americans’ property rights. Through its Zoning Justice Project, IJ has sued dozens of local governments over arbitrary zoning regulations that’ve forced small businesses to shut down. Some of these cases include a Texas mother who wanted to open a home daycare for families in her neighbor but was stopped by a local zoning ordinance, or Nashville, Tennessee where a citywide ban forces home-based music studios, hairstylists, and aspiring entrepreneurs to fold or face steep fines.