Zoning

Short-term rentals and residential use restrictions

/ Servitudes, Zoning

We see continued disagreement among the states on the question of whether short-term rentals violate residential use restrictions in covenants or zoning law. Some courts say that short-term rentals are consistent with residential or single-family use restrictions. See, e.g., Pandharipande v. FSD Corp., 679 S.W.3d 610 (Tenn. 2023); Lake Serene Prop. Owners Ass’n Inc. v. Esplin, 334 So.3d 1139 (Miss. 2022); Wilson v. Maynard, 961 N.W.2d 596, 2021 SD 37 (S.D. 2021). But other courts deem short-term rentals to be a trade or business and presumptively not a residential use. See, e.g., Morgan v. Townsend, 302 A.3d 30, 2023 ME 62 (Me. 2023). See also Dixon v. City of Auburn, 2023 WL 7096600 (Ala. 2023) (short-term rentals are inconsistent with zoning limitation to single-family detached dwelling units”).

Single family zoning ended in several states

/ Zoning

In the last few years, an increasing number of states has ended single-family zoning, either partially or totally. The statutes either allow two separate units or accessory dwelling units that convert parts of a single-family home into a duplex. These states include Oregon (2019), California (2021), Maine (2022), Washington (2023), and Montana (2023). The statutes can be found here: Cal. Gov’t Code §§65852.21, 66411.7, 66452.6 (Housing Opportunity and More Efficiency Act (HOME Act) (SB 9, eff. Jan. 1, 2022)) Me. Rev. Stat. §4364, 4364-A, 4364-B (L.D. 2003, 2022 Leg., 130th Sess. (Me. 2022)) Mont Code §§ 76-2-304, 76-2-309 76-2-345 (S.B. 245, Mont. Laws 2023, ch. 499 §1, eff. Jan. 1, 2024) Or. Rev. Stat. §197A.420 (H.B. 2001, Aug. 8, 2019) Or. Rev. Stat. §215.495 (H.B. 1337, June 23, 2021) Wash. Rev. Code. §36.70A.030, §36.70A.635 (H.B. 1110 (Apr. 11, 2023); S.H.B. 2321 (June 6, 2024)) These laws change zoning but do …

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Neighbor cannot compel city to enforce zoning ordinance

/ Zoning

The Florida Supreme Court has held that cities cannot be compelled to enforce zoning laws. In City of West Palm Beach v. Haver, 2021 Fla. LEXIS 1572 (Fla. 2021), a neighbor sought a court order to force the city to enforce a zoning prohibition on a group home. The court ruled that it would exceed the legitimate role of the courts to order city officials to comply with local zoning laws when the decision in question is one that has traditionally been discretionary on the part of public officials. The court would not interfere with “administrative enforcement decisions of a kind that traditionally have been considered discretionary and that embody value-laden judgments about the proper allocation of scarce governmental resources.”

Town esthetic zoning law does not violate the owner’s free speech rights

/ Free Speech, Zoning

The Eleventh Circuit ruled that a town could prevent an owner from building a home that had an architectural design out of keeping with surrounding homes. Burns v. Town of Palm Beach, 2021 WL 2325300 (11th Cir. 2021). The owner hoped to demolish his home and build one more than twice as large in a midcentury modern style rather than the typical Palm Beach beachfront house style. The town zoning laws had created an architectural review commission empowered to regulate the architectural style of homes to achieve a coherent and beautiful neighborhood environment free from large deviations. Because Palm Beach is a tourist destination, the town has an interest in preserving what makes the town attractive to visitors. When the commission rejected the proposed plans, the owner sued claiming that the design expressed his commitment to a simpler lifestyle with fewer possessions and that the town’s prohibition on his design infringed …

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Neighbor across the street denied standing to challenge a zoning variance

/ Zoning

The Supreme Judicial Court of the Commonwealth of Massachusetts has set a very high bar to obtain standing to object to a building permit. In Murchison v. Zoning Board of Appeals of Sherborn, 2020 WL 4012766 (Mass. 2020), owners across the street from an irregularly shaped lot objected to granting the owner a permit to build on it. The court found no harm that would justify granting the neighbors the right to challenge the zoning decision, holding that they were not “aggrieved” by the decision as required by state law. The court rejected the contention that construction would make the neighborhood overcrowded, increase traffic, noise, and interfere with light, or diminish property values. The court specifically stated that “diminution in value itself is not an interest protected under” the zoning law. This view is an outlier and not shared by most courts interpreting zoning acts.

Outdoor displays at florist shop not a prior conforming use

/ Zoning

The Massachusetts Appeals Court ruled that outdoor displays at a florist shop exceeded the scope of prior uses by the store and thus did not constitute a prior nonconforming use that could continue despite new zoning regulations requiring special permit for such uses. Leonard v. Zoning Bd. of Appeals of Hanover, 135 N.E.3d 288 (Mass. App. Ct. 2019). Although the court found the prior law to be confusing and badly written, it interpreted that law to prohibit outdoor displays unless specifically authorized. Because the florist shop’s outdoor displays were unlawful, they could not count as prior lawful uses that could continue despite a change in the zoning law. A dissenting judge interpreted the prior law to allow the outdoor displays and would have allowed them to continue as a prior nonconforming use.

Owner seeking special permit has burden of showing it will not harm neighbors

/ Zoning

A zoning board granted a special permit to au auto body shop after placing the burden of proof on neighbors to show that the shop would release harmful chemicals into the air. The Court of Appeals reversed because the owner seeking the special permit (the auto shop) should have the burden of proving that its operation would not significantly decrease air quality. Fish v. Accidental Auto Body, Inc.,2019 WL 2236279, 95 Mass.App.Ct. 355(Mass. App. Ct. 2019). In addition, the Court found that there was evidence that the shop would release hazardous substances and no evidence that would not affect public health.

Supreme Court opens federal courts to a floodgate of takings cases

/ Environmental Law, Historic Preservation Law, Zoning

In a 5-4 decision, the Supreme Court overruled Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) and held that owners aggrieved by state regulations they believe took their property without just compensation can immediately sue for relief in federal courts under 42 U.S.C. §1983 even if state law would have provided just compensation through administrative procedures. Knick v. Twp. of Scott, — U.S. — (2019). The line-up is what one would expect with Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh and Thomas in the majority and Justices Kagan, Breyer, Ginsburg, and Sotomayor in the dissent. Roberts wrote the majority opinion and Kagan wrote the dissent. Thomas concurred. The argument for allowing federal court relief is that it makes it realistically possible for federal courts to determine whether states have denied property without just compensation. Previously, the owner had to exhaust state remedies up through the state supreme …

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