Character of community nixes homestay exception

A county board of supervisors correctly considered neighborhood character as part of public welfare when it denied a homeowner’s application to rent five of his guestrooms on a short-term basis known as “homestays,” the Court of Appeals of Virginia has held.

The homeowner argued that consideration of neighborhood character as a component of “the public welfare” was unconstitutionally vague, adding that the board acted unreasonably by not hearing expert testimony about the neighborhood.

The Court of Appeals disagreed.

“It is clear that when zoning administrators consider the character of the area as part of their analysis, that consideration falls within the umbrella of their duty to create convenient, attractive, and harmonious communities,” Judge Dominique A. Callins wrote. “Thus, when the Board and their staff considered the character of the area, they properly considered it as part of the public welfare.”

Judges Frank K. Friedman and Randolph A. Beales joined the published decision in The Manors LLC, et al v. Board of Supervisors of Albemarle County (VLW 023-7-092).

‘Small hotel’

Darrick Harris bought a house on two acres in Albemarle County. After making improvements, Harris requested a homestay special exception so he could rent out five rooms from his house.

Albemarle County’s zoning code permits two homestay rentals if the owner lives on-site. After notifying neighbors, the county board of supervisors may grant an exception “upon consideration of the following: (i) There is no detriment to any abutting lot; and (ii) There is no harm to the public health, safety, or welfare.”

The board’s staff reviewed Harris’ request and gave their report to the board. Included were 28 public comments, only two of which supported Harris’ request. Concerns ranged from the out-of-character aesthetic of Harris’ buildings, to increased traffic and parking problems and setting bad precedent. One commenter said the proposed use was essentially a “small hotel” and a party house.

Harris pointed out that another large house was recently built in the neighborhood. Moreover, he would live in the house, only have “occasional guests” and provide adequate parking with rear access to reduce traffic.

The board’s staff found three factors in support of Harris’ request: the distance to the nearest home was 60 feet, the property was “uniquely situated” near other similarly sized properties, and the new fence and gate would provide privacy.

But the staff also found two negative factors. According to the county’s master plan, Harris’ residential zone wasn’t suggested for commercial/tourism development. Also, the number of homestay rooms Harris requested was out of character with the neighborhood.

The staff had concerns about noise, traffic and outdoor activity. Since the increase in rooms “could result in additional activity on the property that cold impact abutting neighbors,” the staff recommended that the board deny Harris’ request.

Request denied

While debating Harris’ request in a hearing, some board members said the exception wasn’t appropriate for the lot size and the proposed use would be too much for the neighborhood. Others felt the lot was big enough and in a unique location. Another, while supporting the special exception grant, voiced concern about the precedent set by granting the application.

When the board denied Harris’ special exception request, Harris appealed to the circuit court, claiming his homestay wouldn’t harm the public health, safety or welfare, nor cause detriment to abutting lots. He testified about improvements he made, including a privacy fencing and soundproofed buildings.

A planner with the county zoning division testified that she generally considered the character of an area when evaluating land use applications. Her analysis about public health, safety and welfare focused on abutting lots, and neighborhood character was considered part of the public welfare. By definition, she said, a dwelling with six or more guest rooms was a hotel.

The county zoning director said he found it would change the character of the area and could cause detriment to abutting lots.

The Albemarle County Circuit Court ruled in the board’s favor, noting that Harris’ house was in a quiet neighborhood where increased noise and traffic were valid concerns.

‘Public welfare’

Callins sought instruction from the statutory scheme behind the county’s ordinance, looking first to its enabling statute, which described the ordinance’s purposes.

“This statute directs that ‘[z]oning ordinances shall be for the general purpose of promoting the health, safety or general welfare of the public’ and lists twelve purposes that may be considered by municipalities when enacting zoning ordinances,” she explained. “These purposes include facilitating the creation of a ‘convenient, attractive and harmonious community’ and ‘reduc[ing] or prevent[ing] congestion in the public streets.’”

Here, the ordinance’s enabling statute made the creation of “convenient, attractive, and harmonious communities” a component of the public health, safety and welfare; the same definitions should be used in the statute and the ordinance, Callins said.

“It is clear that when zoning administrators consider the character of the area as part of their analysis, that consideration falls within the umbrella of their duty to create convenient, attractive, and harmonious communities,” she said. “Thus, when the Board and their staff considered the character of the area, they properly considered it as part of the public welfare. We reject Harris’s argument that the Board strayed outside the enumerated factors by considering the character of the neighborhood.”

‘Fairly debatable’

Harris asserted that the board’s denial was unreasonable and unsupported by evidence because the neighborhood was not actually quiet, private and residential.

Callins pointed out that, where a landowner and board have competing evidence of reasonableness that was “fairly debatable,” the legislative act is considered valid.

“A decision is fairly debatable if ‘the evidence offered in support of the opposing views would lead objective and reasonable persons to reach different conclusions,’” she explained.

Callins then said Harris’ misunderstood the burden of proof before the board.

“The Board did not have the burden to prove that Harris’s suggested use was unreasonable,” she said. “Rather, Harris had the burden of persuading the Board to grant him a special exception to use his land in a manner that was not entitled.”

Finally, Callins said the appeals court wouldn’t usurp the lower court’s factfinding role and declined to substitute its own judgment for that of the board. She rejected Harris’ argument that the board should have called expert witnesses because the board could rely on its staff’s report and its own knowledge of the area.

“The public comments, the staff report, and the testimony at trial support this conclusion,” Callins wrote. “Thus, even if we accept Harris’s argument that he introduced probative evidence of unreasonableness, we must still affirm the circuit court’s judgment that the decision whether to grant the special exception was at least ‘fairly debatable.’”