Zoning Police Come for Cape Cod Lobsterman
Jon Tolley and his family have been serving fresh lobster from their home for over 50 years, but an anonymous complaint to town regulators threatens to shut their business down for good.
People looking for fresh lobster know where to go on Cape Cod. For 50 years, third-generation fisherman Jon Tolley has welcomed customers to his Yarmouth home, where he offers the day's catch. His father did the same thing at the same home, using a home-based business model that Tolley's grandfather pioneered in 1930 at a different location near the Bass Hole boardwalk.
The town of Yarmouth should celebrate this entrepreneurial spirit, and yet, the town ordered Tolley to cease and desist operations in March 2025—weeks before the start of a new season.
The reason has nothing to do with public health, safety, sanitation, or environmental concerns. Tolley has commercial fishing and retail licenses, and he complies with all requirements. Nor has the town mentioned traffic or parking concerns. Tolley has two massive driveways that easily accommodate his customers, including many who just walk from nearby.
Instead, the town is citing a zoning ordinance that prohibits sales in residential neighborhoods. The ordinance has no exceptions, even for fresh-caught lobster sold by a lobsterman in Cape Cod, where families have stayed afloat this way for centuries. According to the town, someone complained to authorities, but they will not say who.
"Everyone in the town knows I have been selling there my whole life," he writes on his Facebook page. "I have sold to building inspectors, Town Hall employees, selectpersons, police, firefighters, and residents of Cape Cod and beyond."
On March 7, Tolley was issued a violation notice for selling lobsters at his home, and Yarmouth has threatened him with daily fines of up to $300 if he does not cease operations.
For his part, Tolley only has heard support, and he does not intend to go away quietly. He will fight back at a Zoning Board of Appeals meeting on April 10. It is unlikely that he will face the person who issued the complaint.
Besides the economic implications of this move, the Building Department should consider the Constitution. The Fourteenth Amendment Due Process Clause does not allow arbitrary infringement of property rights. People can use their property in normal, productive ways, and the government cannot stop them without good reason.
Cities and towns routinely try this sort of thing. Home-based enterprises make popular targets, and the results can be ironic. Zoning officials ordered Lij Shaw to shut down a recording studio that he operated behind soundproof walls at his home in "Music City" Nashville, Tennessee. If Palo Alto, California, had taken this approach with Hewlett-Packard and shut down the region's first "garage startup" in 1939, Silicon Valley might never have emerged.
Once local inspectors take out their clipboards, even modest dreams can die. Zoning officials ordered single mom Bianca King to close her home-based daycare center in Lakeway, Texas. They ordered Art and Kimberly Dunckel to close a farm animal sanctuary on their rural property in Winston-Salem, North Carolina. And zoning officials blocked Peter and Annica Quakenbush from opening a green cemetery on their private woodland preserve in Brooks Township, Michigan.
We have seen just about everything at our public interest law firm, the Institute for Justice, as part of our Zoning Justice Project. Far too often, what is missing is common sense. Nobody wants a tannery, nightclub, or fireworks factory next door. But people rarely cross boundaries like these. They generally regulate themselves because they want to live peaceably with their neighbors.
Tolley shows how. He listens for community feedback and makes adjustments when necessary. All good businesses do the same. There is no other way to survive in one location for 50 years.
Code enforcers can step in when necessary. They have a role to play. But they should not rock the lobster boat, inventing problems that do not exist.
