Friday, October 21, 2016

Metro Short Term Rental Property Ordinance Unconstitutional

Earlier today, Judge Kevin Jones of the Davidson County Circuit Court ruled in favor of the plaintiffs in a challenge to Metro's Short Term Rental Property Ordinance, finding it unconstitutionally vague. The court ruled on a Motion for Summary Judgment, my guess is orally from the bench, and so an order will be entered sometime in the next week or two. At this present time, I am assuming that no written version of the court's ruling is available. I did check with the Davidson County Circuit Court Clerk's office, and there is no order as of yet (which would be expected if the ruling was from the bench on the motion).

In essence, the plaintiffs argued that the definition of short-term rental properties was unconstitutionally vague and overlapped with a number of other land-use definitions contained in the Metro Zoning Ordinance, including hotels, boardinghouse, and bed-and-breakfasts. From some of the published reports, it appears that the court did not hold the 3% rule unconstitutional, but since the definitions are unconstitutionally vague, the 3% cap was invalidated as well.

It is certainly an interesting decision, and it will be more interesting to read the order. Finally, whether Metro will appeal is another interesting question. It may be simpler to simply pass another ordinance. The difficulty from the standpoint of property owners is that with the increased concern which is developed over the last few years since the adoption of the ordinance, there may be rather draconian solutions, including simply restricting short-term rentals to commercial areas of the city.

Wednesday, October 19, 2016

Short-term rentals upheld in Pennsylvania

In another interesting short-term rental case, the Pennsylvania Commonwealth Court [a kind of land-use Court of Appeals], concluded that a short term rental was consistent with residential single-family zoning. Marchenko v Zoning Board of Pocono Township, 2016 WL 4978459 (Pa. Commw. September 19, 2016). The local zoning official issued a notice of violation which was appealed to the zoning board. The property owner used the property as a primary residence for her purposes, and resided there the majority of the time, but leased out the property on a short-term basis to others. The zoning board ruled against the property owner but on appeal, the Pennsylvania court concluded that since the definition of single-family did not prohibit rental activity, that the accessory rental use was permitted.

Cases like this are appearing across the country, some permitting the short-term rental use, and some finding it inappropriate. Given the controversy here in middle Tennessee over the last year or two concerning short-term rentals, I’m sure we will see some more cases from the Tennessee appellate courts in the not-too-distant future.

Tuesday, October 4, 2016

Accessory Structure for Medical Care

During a seminar a couple of weeks ago sponsored by the Tennessee Principal League, Sam Edwards happened to mention the recent amendment of the zoning enabling statutes allowing accessory residential structures in cases of medical need. I had heard of the bill while it was pending before the General Assembly, but had not really looked at the statute after passage. It is certainly interesting. Furthermore, there is an interesting article in this month's Tennessee Bar Journal; you can take a look at it here.

Tenn. Code Ann. §13-7-501, et seq., authorizes the placement of a separate accessory residential structures in single-family residential districts if for the purpose of medical care as defined by the statute. Only one person can live in the accessory structure, it can be no greater than 500 square feet, and it appears that it must comply with local zoning and building code regulations, except that no permanent foundation is permitted or required.

It's unclear what this statutory provision actually accomplishes. Many local zoning regulations do not permit separate accessory residential structures of any size. There is also the possibility that the structures might not comply with the applicable building code. Tenn. Code Ann. §13-7-503 provides:
Any temporary family healthcare structure installed pursuant to this part shall comply with any local codes and ordinances to connect to any water, sewer, and electric utilities that are serving the primary residence on the property and shall comply with all applicable requirements of the department of health.
This seems a little ambiguous. Doesn't mean that the accessory structure must comply with all local codes, or only those related to the connection of water, sewer, and electrical utilities? Tenn. Code Ann. §13-7-502(c) seems to clarify:
Temporary family healthcare structures shall comply with any local requirements for accessory dwelling structures of this type. 
The Tennessee statute appears to be based upon statutes adopted by North Carolina and Virginia over the last several years. However, in the cases of those two other states, the state legislation appears to expressly permit the accessory structure regardless of any contrary local land use regulations. For example, the North Carolina statute provides in relevant part:
A city shall consider a temporary family health care structure used by a caregiver in providing care for a mentally or physically impaired person on property owned or occupied by the caregiver as the caregiver's residence as a permitted accessory use in any single-family residential zoning district on lots zoned for single-family detached dwellings.
North Carolina SL 2014-94.

The Tennessee version does not mandate such an exemption but only provides that the local government "may" consider it in a single-family residential district.Tenn. Code Ann. §13-7-502(a)(1). That's a very significant distinction and would seemingly limit the applicability of this section only to those areas where the local government would permit such accessory uses.

Ultimately, this is an area, as in so many others, where the local government should have the ability to make the decisions concerning the ultimate land uses in various areas of the city or town. It may be that the sponsors of the legislation here in Tennessee wanted to make clear that it would be appropriate to restrict such accessory uses to lots where the caregiver lives in the principal residence. At least one case has held to the contrary (in Virginia) and perhaps the General Assembly wanted to avoid that result.

This is an interesting piece of legislation; however, as I mentioned, it is a little unclear as to exactly what it does accomplish. My general sense is that most zoning ordinances would prohibit this type of accessory structure in single-family residential districts; since this legislation does not appear to require local zoning authorities to allow the use, the enforcement of local regulations would in many cases appear to entirely prohibit the construction of such an accessory structure.

For some further discussion about the North Carolina provision, take a look at this website.