[Massplanners] Short term rentals
Dwight Merriam
dwightmerriam at gmail.com
Wed Aug 16 13:00:30 EDT 2023
Here is how we cite* Styller* in Rathkopf's The Law of Zoning and
Planning, 4th :
*81:11. Short term rentals*
Short-term rentals are becoming more common with the growth in
Internet-based “house sharing” companies such as “Airbnb,” “VRBO,” and
“HomeAway,” which allow property owners to earn extra income by renting out
to short-term tenants. Restrictions on short-term rentals and the house
sharing industry are increasingly utilized by municipalities.1 <#_ftn1>
Such restrictions generally have been upheld where they are found to be
substantially related to land use impact on the area. Prohibiting
short-term occupancy in single-family areas has been held to be within the
lawful scope of the zoning power.2 <#_ftn2> A handful of cases, however,
have invalidated regulation of short-term rentals or have subjected such
regulations to takings review.3 <#_ftn3>
------------------------------
1 <#_ftnref1> See ordinances cited at §33:15.
2 <#_ftnref2> See the following cases:
*United States.* Heyman v. Cooper, 31 F.4th 1315 (11th Cir.
2022) (short-term rentals were not permitted nonconforming uses of
development code that banned short-term rentals in residential zones);
Hignell v. City of New Orleans, 476 F. Supp. 3d 369 (E.D. La. 2020)
(finding no vested right to operate short-term rentals because previous
ordinance granted permits for just one year, and therefore no
unconstitutional taking).
*Alabama.* Slaby v. Mountain River Estates Residential Ass'n,
Inc., 2011 WL 4790638 (Ala. Civ. App. 2011) (holding that cabin owners'
short-term rental of their property did not violate the terms of the
restrictive covenant limiting the use of the property to single-family
residential purposes because they rented their property to groups who used
the cabin for residential purposes only).
*California.* Rosenblatt v. City of Santa Monica, 940 F.3d 439,
445-447, 449, 452 (9th Cir. 2019) (upholding a vacation rental ordinance
preventing property rentals for 30 days or less with an exception for
rentals where a primary resident remained in the dwelling); HomeAway.com,
Inc. v. City of Santa Monica, 918 F.3d 676 (9th Cir. 2019) (upholding
denial of a preliminary injunction sought by short-term rental platforms
Airbnb and HomeAway challenging the City of Santa Monica, California's
short-term rental regulations on First Amendment right to freedom of
association grounds where the court found the regulation applied to purely
non-expressive conduct); Homeaway.com, Inc. v. City of Santa Monica, 2018
WL 1281772 (C.D. Cal. 2018) (municipal regulation of short-term rentals,
including prohibiting booking transactions for residential properties not
listed on the city's registry does not violate the Communications Decency
Act; the First, Fourth, and Fourteenth Amendments of the U.S. Constitution;
or the Stored Communications Act); Young v. County of San Mateo, 2005 WL
3454106 (N.D. Cal. 2005) (upholding validity of ordinance regulating bed
and breakfast establishments, which prohibited the hosting of conferences,
meetings, or social events); Whitman v. City of San Buenaventura, 2019 WL
1292274 (Cal. App. 2d Dist. 2019), unpublished/noncitable (upholding
dismissal of challenge to short-term rental regulations as within the scope
of proper zoning regulation).
*Florida.* Bondar v. Town of Jupiter Inlet Colony, 321 So. 3d
774 (Fla. 4th DCA 2021) (zoning enforcement restricting short-term rental
of property is an executive, rather than legislative, action, and is not a
substantive due process violation unless it is “arbitrary, irrational, or
conscience shocking”); City of Miami v. AIRBNB, Inc., 260 So. 3d 478 (Fla.
3d DCA 2018) (local zoning prohibiting property from being used solely for
short-term or vacation rentals not preempted by state law where the local
zoning predated prospective state law); Rollison v. City Of Key West, 875
So. 2d 659 (Fla. 3d DCA 2004) (holding that owner's use of condominium unit
for short-term rentals was a lawful nonconforming use; at time of owner's
purchase, city's administration interpreted city's zoning code to allow
short-term rental of transient housing if rental occurred less than 50% of
year, owner complied with 50% rule and obtained required occupational
license, and owner was engaged in short-term rentals prior to changes in
zoning code that prohibited such rentals); Mojito Splash, LLC v. City of
Holmes Beach, 326 So. 3d 137 (Fla. 2d DCA 2021), review dismissed, 2022 WL
122317 (Fla. 2022) (where plaintiff lacked lawful existing use, city could
restrict the number of occupants in short-term rentals, decreasing the
profitable of the plaintiff's property).
*Hawaii.* Thinh Tran v. Department of Planning for County of
Maui, 2020 WL 3146584 (D. Haw. 2020) (challenge to Department of Planning's
issuance of Notice of Violations on several grounds based on short-term
rental ordinance turns on questions of state law and warranted Pullman
abstention).
*Indiana.* Siwinski v. Town of Ogden Dunes, 949 N.E.2d 825
(Ind. 2011) (finding that property owners' short-term rental of their home
violated the town ordinance prohibiting commercial use of property).
*Massachusetts.* Styller v. Zoning Board of Appeals of
Lynnfield, 487 Mass. 588, 169 N.E.3d 160 (2021) (use of a home as a
short-term rental did not qualify as a prior nonconforming use that would
be exempt from new zoning bylaw banning short-term rentals because the use
was inconsistent with the character and purposes of the “single-residence”
zoning district); Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App.
Ct. 249, 549 N.E.2d 433 (1990) (interpretation of zoning prohibition of
“transient residential facilities” based on whether tenants live together
as a single housekeeping unit in family-like situation).
*Michigan.* Reaume v. Township of Spring Lake, 2019 WL 2195030
(Mich. Ct. App. 2019) (short-term rental neither a permitted use in the
zone nor a nonconforming use, and township not equitably estopped to deny
approval); Eager v. Peasley, 2017 WL 5907310, *11 (Mich. Ct. App. 2017)
(holding that lake house owner's short-term rental of her property violated
terms of the restrictive covenant limiting the use of the property to
"private occupancy only" and "private dwelling" coupled with the
prohibition against "commercial use" despite renting her property to groups
who used the lake house for residential purposes only).
*New Jersey.* Williams v. City of Asbury Park, 2021 WL 961125
(N.J. Super. Ct. App. Div. 2021) (regulating short-term rentals is not
considered a land-use restriction but is within the city council's police
power).
*New York.* Airbnb, Inc. v. City of New York, 373 F. Supp. 3d
467 (S.D. N.Y. 2019) (preliminary injunction granted on Fourth Amendment
grounds to stop law from taking effect that would require short-term rental
platforms, Airbnb and Homeaway to provide data on the customers using their
platforms); LuxuryBeachfrontGetaway.Com, Inc. v. Town of Riverhead, New
York, 2018 WL 3617947, *2 (E.D. N.Y. 2018) (“although plaintiffs identify
the subject [short-term rental] properties as 'residential houses,' since
the function of the subject properties was commercial, and neither
plaintiffs nor their potential guests used or intended to use the
properties as a residence, [lower court] correctly concluded that the
subject properties are not 'dwellings' within the meaning of the” Fair
Housing Act) (citations omitted) (internal quotation marks modified);
Cradit v. Southold Town Zoning Board of Appeals, 179 A.D.3d 1058, 117
N.Y.S.3d 675 (2d Dep’t 2020) (use of property as a short-term rental in a
low-density residential zoning district does not constitute a legal
nonconforming use); Spilka v. Town of Inlet, 8 A.D.3d 812, 778 N.Y.S.2d 222
(3d Dep't 2004) (amendment to zoning ordinance requiring special use
permits for rental of non-owner-occupied dwellings for periods of less than
four months not arbitrary or capricious). In Soule v. Scalci, 288 A.D.2d
585, 732 N.Y.S.2d 662 (3d Dep't 2001) the court holding that a zoning
ordinance provision regulating a "tourist accommodation" as a private
residence for "the overnight accommodation of guests" did not apply to an
apartment building where separate housekeeping units were used for
short-term rentals. The court found that transient rentals did not convert
the apartment building into a tourist facility which required the rental of
space in a private residence.
And see Nekrilov v. City of Jersey City, 2021 WL 1138360
(D.N.J. 2021) (ordinance banning subletting long-term leased premises as
short-term rentals and limiting short-term rentals to 60 days a year when
they are not owner-occupied was not a taking or violation of the Contracts
Clause).
And see Steenrod v. City of Oneonta, 69 A.D.3d 1030, 892
N.Y.S.2d 649 (3d Dep't 2010) (substantial evidence in the record supported
determination of city common council that landlord's proposed special use
of rental property that he sought to rent to summer transients on weekly
basis was undesirable due to current conditions in neighborhood, warranting
judicial deference to council's denial of special use permit; council
member cited congestion on the block due to expansion of nearby restaurant,
fire department's regular use of street as shortcut, and existing use of
other properties for summer transient rentals, provision in landlord's
sample rental agreement requiring tenants to pay for on-site parking space
permitted conclusion that tenants would choose to park on street to avoid
extra expense, and neighbor raised public safety concerns regarding
difficulty that emergency vehicles would have in traversing street); City
of New York v. 330 Continental LLC, 60 A.D.3d 226, 873 N.Y.S.2d 9 (1st
Dep't 2009) (finding that city stated claims for alleged violations of
zoning regulation and apartment hotels' certificates of occupancy based
upon alleged failure to use buildings “primarily” or “as a rule” for
permanent occupancy).
*Ohio.* Kasper Invest. Properties, L.L.C. v. Put-in-Bay Twp.
Bd. of Zoning Appeals, 2015-Ohio-4628, 49 N.E.3d 788 (Ohio Ct. App. 6th
Dist. Ottawa County 2015) (it was not unreasonable for township board of
zoning appeals to deny conditional use permit to investment company for the
occasional rental of its home, a converted shiphouse, even assuming it had
granted one to owners of neighboring property, where the properties were
different in key respects, such as neighboring property was 1,500 square
feet, shiphouse was 7,000 square feet, allowing it to be rented by many
more people at one time, neighboring property was accessible from a public
paved road, whereas the shiphouse was accessible only from a private road,
and then only via an easement, and unlike in company's case, there was no
evidence put forth that rental of the neighboring property generated
complaints of traffic, noise or trash).
*Oregon.* Cope v. City of Cannon Beach, 317 Or. 339, 855 P.2d
1083 (1993), wherein an ordinance prohibiting the creation of new
residential rental units for “transient occupancy” (i.e., rental for less
than 14 days), and requiring the amortization of existing transient
occupancy uses (except in cases of “hardship”) was held not to constitute a
taking of property. The court rejected a facial challenge to the ordinance
after finding that the law substantially advanced the legitimate state
purposes of providing affordable housing for permanent residents and
preserving the residential character of certain neighborhoods. The law did
not deny property owners all economically viable use of their land, since
they could still rent their properties for periods of 14 or more days, or
occupy the properties themselves.
*Pennsylvania.* Slice of Life, LLC v. Hamilton Township Zoning
Hearing Board, 207 A.3d 886 (Pa. 2019) (exclusive use of a residence for
short-term rental is not a “single-family” use and not permitted in the
residential district); Kintner v. Zoning Hearing Board of Smithfield
Township, 2019 WL 178486 (Pa. Commw. Ct. 2019) (no nonconforming use
established where short-term rental tenants were not “family” defined as
“as many as six (6) persons living together as a single, permanent and
stable nonprofit housekeeping unit” as that term was used in the zoning
district limited to “one-family detached dwelling” use); Pham v. Upper
Merion Tp. Zoning Hearing Board, 113 A.3d 879 (Pa. Commw. Ct. 2015) (held
tie-vote adequate for appellate review and that a “more reasonable” use of
the property was insufficient to support a use variance to conduct a bed
and breakfast).
*Texas.* Schack v. Property Owners Association of Sunset Bay,
2018 WL 3470647 (Tex. App. Corpus Christi 2018), rule 53.7(f) motion
granted, (Aug. 30, 2018) (definition of “family” and other occupancy
restrictions in homeowners association covenants did not preclude
short-term rentals); compare Ridgepoint Rentals, LLC v. McGrath, 2017 WL
6062290 (Tex. App. Beaumont 2017), petition for review filed, (Dec. 18,
2017) (holding that property owner's short-term rental of vacation home
violated terms of deed restriction that "[t]he land to be conveyed
hereunder shall be used for residential purposes only" and "[t]he term
'residential purposes' as used herein shall be held and construed to
exclude hospitals, clinics, duplex houses, apartment houses, boarding
houses, hotels, and all other commercial uses and all such uses of said
property are hereby expressly prohibited") with Boatner v. Reitz, 2017 WL
3902614 (Tex. App. Austin 2017) (holding property owner's short-term rental
of property did not violate terms of subdivision deed restriction that
"[a]ll tracts shall be used for residence purposes only, and not for
business" because such restrictions are ambiguous). See also Draper v. City
of Arlington, 629 S.W.3d 777 (Tex. App. Fort Worth 2021), review denied,
(Jan. 28, 2022) (dismissing landlord plaintiff's claim that city's
ordinance restricting short-term rentals was in violation of Texas
constitution's provision for freedom of assembly as not a real controversy
because it was not the landlord's rights that were potentially restricted,
but possible tenants').
*Utah.* Brown v. Sandy City Bd. of Adjustment, 957 P.2d 207
(Utah Ct. App. 1998) (dictum) (city has authority to prohibit short-term
rentals in single-family neighborhood).
*Virginia.* Norton v. Board of Supervisors of Fairfax County,
299 Va. 749, 858 S.E.2d 170 (2021) (upholding a county board's
interpretation of a “dwelling” as only permitting “non-transient
residential occupancy” and the use was not permitted as of right. Further,
short-term rental property owners were subject to the imposition of a
transient occupancy tax).
*Wisconsin.* Forshee v. Neuschwander, 2018 WI 62, 381 Wis. 2d
757, 914 N.W.2d 643 (2018) (ambiguous subdivision covenant prohibiting
commercial activity narrowly interpreted to protect the free use of private
property and not prohibit short-term rentals); Vilas County v. Accola, 2015
WI App 52, 866 N.W.2d 406 (Wis. Ct. App. 2015) (holding that zoning
ordinance permitted short-term rental of single-family detached dwelling
units located in a single-family residential district).
3 <#_ftnref3> See Zaatari v. City of Austin, 615 S.W.3d 172 (Tex. App.
Austin 2019), petition for review filed, (Sept. 14, 2020) (finding
requirement that owner occupy short-term rental property unconstitutional);
Morgan County v. May, 305 Ga. 305, 824 S.E.2d 365 (2019) (criminal citation
dismissed where short-term rental ordinance was unconstitutionally vague as
it applied to rentals of seven nights where property owner had a vested
right to continue short-term rentals); Robert D. Ferris Trust v. Planning
Com'n of County of Kauai, 138 Haw. 307, 378 P.3d 1023 (Ct. App. 2016)
(county ordinance which required “owner, operator or proprietor” seeking to
operate a single-family transient vacation rental as nonconforming use to
have consent of 75% of lot owners, was ambiguous, precluding county
planning department from refusing to consider or process trust's
application for a non-conforming use certificate on the basis that trust
did not have a 75% or more controlling interest in the equitable and legal
title of the lot; trust fell within the ordinary meaning of “operator” and
“proprietor” based on its operation of its transient vacation rental
business); Repair Master, Inc. v. Borough of Paulsboro, 352 N.J. Super. 1,
799 A.2d 599 (App. Div. 2002), the court holding that a borough lacked
authority under the general police power and under the municipal land use
regulatory power to attempt to control the rental occupancy of
single-family homes and non-owner occupied duplex units in an effort to
manage community dynamics and demographics. The court stated:
We conclude that the Legislature did not imply the power to municipalities
to deny or regulate a property owner's right to rent non-owner occupied
residential housing in an effort to alter the community's dynamics and
demographics, and control the ratio of owners and tenants. This is a power
we simply will not infer in light of the evidence and the history of our
land use and occupancy jurisprudence. If this power is conferred on
municipalities, we think it should be the result of legislative
deliberation and evaluation of all the complex considerations, not from a
judicially-created attempt to accommodate a single, though doubtlessly
sincere, municipal effort. The problem could be compounded if other
municipalities were to take this route and seek an arguably more desirable
occupancy mix. Specific legislative approval should be a precondition to
the exercise of a power we consider a radical regulatory development.
And see Village of Tiki Island v. Ronquille, 463 S.W.3d 562
(Tex. App. Houston 1st Dist. 2015) (finding property owner adequately pled
that ordinance prohibiting short-term rentals constituted a regulatory
taking); Calvey v. Town Board of North Elba, 2021 WL 1146283 (N.D. N.Y.
2021) (challenge of short-term rental regulation alleging unfair treatment
compared to other similarly situated landowners was adequately pleaded to
make Equal Protection claim). But see Nekrilov v. City of Jersey City, 2021
WL 1138360 (D.N.J. 2021) (ordinance limiting short-term rentals on
properties was not a taking or violation of the Contracts Clause) and
Wallace v. Town of Grand Island, 184 A.D.3d 1088, 126 N.Y.S.3d 270 (4th
Dep't 2020) (prohibition on short-term rentals is not a taking when the
plaintiff shows only a “mere diminution” in property's value).
And see City of Grapevine v. Muns, 2021 WL 6068952 (Tex. App.
Fort Worth 2021), petition for review filed, (Feb. 14, 2022) (finding
homeowners presented sufficient evidence that short-term rental ordinance
had economic impact on value of their property, so homeowner takings claim
survived summary judgment motion by city).
See also Town of Vail v. Village Inn Plaza-Phase V Condominium
Association, 2021 COA 108, 498 P.3d 1123 (Colo. App. 2021) (invalidating
city ordinance requiring condominium owners in special development district
to place units on a short-term rental market, where town ordinance
preempted by state law).
Regards,
Dwight Merriam, FAICP
www.dwightmerriam.com
On Wed, Aug 16, 2023 at 11:37 AM Pam Kueber via MassPlanners <
massplanners at masscptc.org> wrote:
> What Jeff said. Plus: Not sure what your current zoning says about STRs,
> but this case from the Supreme Judicial Court in 2021 was an important
> milestone in the STR issue in Mass. :
>
> article:
> https://www.natlawreview.com/article/breaking-mass-sjc-rules-compatibility-short-term-rentals-single-family-zoning
>
> case:
> https://www.massdirtlaw.com/wp-content/uploads/2021/06/Styller-v.-Zoning-Board-of-Appeals-of-Lynnfield.pdf
>
> Pam Kueber
> Lenox Planning Board
>
> On Wed, Aug 16, 2023 at 10:18 AM Jeff Lacy via MassPlanners <
> massplanners at masscptc.org> wrote:
>
>> Chris:
>> Assuming bylaw is zoning. The question to ask is: are the existing
>> short-term rentals “lawful?” If so, and the bylaw inhibits them in some
>> way, they would then become lawfully non conforming, may continue, but are
>> subject to Chapter 40A, Section 6 if any expansions, reconstructions,
>> alterations, etc. But, if not now lawful, they must come into full
>> compliance with the new bylaw.
>> Jeff Lacy
>> Rural Planning Associates
>> (413) 230-9693
>>
>> Sent from my iPhone
>>
>> On Aug 16, 2023, at 10:04 AM, Chris Skelly via MassPlanners <
>> massplanners at masscptc.org> wrote:
>>
>>
>>
>> At a planning board meeting, the topic of short-term rentals was
>> discussed. The following question was raised: If a new bylaw is passed
>> that limits short term rentals by size and zoning district, will the
>> currently operating short-term rentals be non-conforming uses? In other
>> words, can they remain a short-term rental use so long as they do not
>> abandon the use and are properly inspected and permitted for health and
>> safety? The question was being sent to town counsel but curious what the
>> insight is here.
>>
>> *Chris Skelly*
>> *Skelly Preservation Services*
>> Community Planning and Preservation
>> www.skellypreservationservices.com
>> ccskelly12 at gmail.com
>> --
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>>
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