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Short-term home rentals violate zoning ordinance

The Fairfax Board of Zoning Appeals correctly upheld the county zoning administrator’s violation notice to petitioners, who were making short-term rentals of their residential home.

Violation notice

Petitioners own a home in a district zoned for “dwellings.” The applicable ordinance, Part 3, Section 20-300 (2017), requires that the use of a dwelling must comply with the ordinance’s definition of the term. The first sentence of ordinance defines “dwelling” as a building designed or used for residential occupancy. The second sentence states that term “shall not be construed to mean a motel, rooming house, hospital, or other accommodation used for more or less transient occupancy.”

Petitioners made short-term rentals through Airbnb, an internet rental service, of a house they owned but which was not occupied except when rented. Respondent county’s zoning administrator issued a violation notice that cited the ordinance’s definition of “dwelling,” and advised that “transient occupancy” is occupancy of a dwelling for less than 30 days.

Petitioners appealed. The BZA noted that petitioner admitted that the house is rented through Airbnb, that the zoning administrator has consistently interpreted the ordinance’s term “transient occupancy,” and upheld the violation notice.

Analysis

The court must decide whether petitioners’ house is a “dwelling” within the meaning of the ordinance.

“[A] motel, rooming house, hospital, or other accommodation used for more or less transient occupancy cannot be defined as a dwelling under the Zoning Ordinance. The first sentence sets forth a general definition of what a dwelling is – a building designed or used for residential occupancy. The second sentence describes specific exceptions of what a dwelling is not – a motel, rooming house, hospital, or other accommodation used for more or less transient occupancy.

“It follows that if a building is not a motel, rooming house, hospital, or other accommodation used for more or less transient occupancy, that specific character of use precludes the building from being defined generally as a dwelling under the Zoning Ordinance.”

In this case, petitioners’ house has allegedly been used for transient occupancy, which removes it from the definition of “dwelling.” Further, the zoning administrator, in a series of interpretations going back to 1984, has consistently defined “transient occupancy” as occupancy for less than 30 days. The court accepts this interpretation as correct.

The BZA’s decision is affirmed.

‘Ratcliff’ distinguished

The court acknowledges that a similar case decided by another judge in Fairfax Circuit Court reached a different conclusion, Ratcliff v. Board of Supervisors of Fairfax County (May 31, 2019). In Ratcliff, the court concluded that occasional short-term rentals were permitted under the ordinance because the owners occupied the house most of the time. This court disagrees because, as previously stated, transient occupancy precludes a house from being defined as a “dwelling” under the ordinance. Ratcliff is also distinguishable on the facts; the owners “continuously” lived in the house. That is not so in this case.

McEwan v. Board of Supervisors of the County of Fairfax. CL-2018-0002104, Oct. 21, 2019; Fairfax Cir. Ct. (Ortiz). Nicholas Albu for Petitioners, Cherie Halyard for Respondent. VLW 019-8-095, 7 pp.

VLW 019-8-095

Virginia Lawyers Weekly