We are a group of concerned citizens who own property in the County of Fairfax, Virginia. We rent our homes or rooms within our homes to those coming to visit, work or play. Many times families are gathering to celebrate a birthday, a promotion, a retirement, a graduation, or even a wedding or funeral.
What is troubling is that the County of Fairfax Zoning Administrator has taken it upon herself to deny us this rightful use of our own property that is permitted by the County's Zoning Ordinance. Surprisingly, she has convinced the County that our use is prohibited and has begun to issue citations. We own property in the Commonwealth of Virginia which values property rights. It is our objective to see that our property rights are not unlawfully taken. This is a position with which most people agree.
Fortunately we live in a great country that is governed by laws. The County of Fairfax Zoning Ordinance governing how property is used is very clear. https://www.fairfaxcounty.gov/planning-zoning/zoning-ordinance
Type of structure
For example, most of the rentals in the County are stand-alone houses. The first two citations by the County Zoning Administrator were of this type. The Zoning Ordinance is very specific in its definition of this type of structure. It is online at the link noted above and comprises 20 articles. The last article, Article 20, gives definitions in its last part, Part 3. There are 50 pages of definitions from "ACCELERATION" to "ZOOLOGICAL PARK." Of these 50 pages, page 20 and 21 of this article define 11 terms, all of which include the word "DWELLING." However, only one perfectly defines the stand-alone houses that were cited: "DWELLING, SINGLE FAMILY DETACHED." It is defined on page 21 of Article 20 of the Ordinance and reads as follows:
DWELLING, SINGLE FAMILY DETACHED: A single family dwelling unit which is entirely surrounded by open space or yards on the same lot.
Note that the definition uses the term “DWELLING UNIT” which is also defined on the list of definitions in Article 20. Even though the term “DWELLING“ is defined on the list of definitions in Article 20, IT IS NOT USED IN THE DEFINITION OF THE TERM “DWELLING, SINGLE FAMILY DETACHED” which is the term that applies for the structures cited by the County.
Use of structure
Section 2-502 of Article 2 Part 5 lists the 7 allowed uses permitted for a DWELLING UNIT which, as noted above, is an Article 20 defined term which is used in the definition of a DWELLING, SINGLE FAMILY DETACHED structure. Family is the first of the 7 permitted uses.
Location of structure
Sections 3-102, 3-202, 3-302, 3-402, 3-502, and 3-802 of Article 3 (Parts 1, 2, 3, 4, 5, and 8 respectively) list the permitted uses in R-1, R-2, R-3, R-4, R-5, and R-8 Residential Districts respectively. In each case the third permitted use allowed is "Dwellings, single family detached." (The notation "R-2" for example simply means that two DWELLING UNITS are permitted per acre.)
So it is clear, if you have a family residing in a dwelling, single family detached structure in a R-1, R-2, R-3, R-4, R-5, or R-8 Residential District, you have a legally permitted use. It is as simple as that. Nowhere does the Zoning Ordinance limit the permitted use based upon the duration of use, only upon the type of structure, the persons occupying the structure, and the District where the structure is located. The Virginia Supreme Court has supported this position as noted below.
So if the facts and the Zoning Ordinance are so clear, what went wrong? The apparent willingness of the Zoning Administrator to advance a particular agenda that has the effect of limiting access to white affluent neighborhoods to those of lesser means has resulted in support of her agenda by her deputies and staff and surprisingly by the Board of Zoning Appeals (BZA), a majority of the District Supervisors, and incredulously, the County Attorney.
So, how did she do it? Using the County's system of "complaint-based enforcement" she chose to cite two residents who were renting their homes on a short term basis. It is important to note that the two residents she chose had only recently received complaints, that is, there were many others who had been similarly renting for much longer and had received more complaints. She, her deputy, her staff, the BZA, and even at least one Supervisor were told that the complaints were discriminatory in nature and in all cases the concerns of the two cited residents were surprisingly ignored or were told "not to go there." The US Department of Housing and Urban Development (HUD) and its state counterpart have since started separate investigations.
In order to issue the two citations, the Zoning Administrator wrongfully took the Zoning Ordinance defined term "DWELLING" which clearly does not best describe the two structures she cited, and then fabricated a violation for a structure that did not apply. What made the term "DWELLING" suitable for her scheme, is that its use is not permitted for "transient" occupancy. Even though the Zoning Ordinance does not define the word "transient," the Zoning Administrator's Notice of Violation (NOV) states that she had "opined" previously that any use less than 30 days is considered "transient" and is therefore not permitted. So you have a mischaracterization of the structure followed by an opinion that the use for that inapplicable structure is transient and therefore not permitted. For the NOV to have made any sense you would have had to first believe that the structure in question was NOT a “Dwelling, Single-Family Detached“ and then that the use violated the transiency restriction for that other structure.
You can't make this stuff up!
Needless to say, both cited residents took exception to this blatant abuse of power and appealed their citations to the BZA not realizing that the BZA had no intention of overturning the Zoning Administrator's citations. This was made abundantly clear when the BZA Vice Chairman, on the record, mistook the facts of one case for the other and then after it was brought to the attention of the BZA in a formal Request for Reconsideration, the request went unfulfilled.
After the BZA upheld the Zoning Administrator's decisions, both residents petitioned the 19th Circuit Court. The County immediately opposed the petitioners by submitting a Plea in Bar in one case and moving for a dismissal in the other. Both actions were denied by the Court. This is where both cases currently stand, awaiting for the County to motion for trial. Now many months later, it has yet to do so.
In an ironic twist of fate, the County sent out a survey in 2017 in an attempt to demonstrate that its residents did not support short term rentals (STR). When it did not get the results it was seeking, it extended the period to respond to its survey not once but twice, finally receiving 7,671 responses which stated that 82% of the County's respondents supported short term rentals for "Detached, single-family homes." Since the results are in direct contradiction to the County's agenda, it now takes the position that its own survey is flawed. As any statistician can attest, a response rate of 7,671 is amazingly high for a county of 1.3M residents and conveys an error rate of only a few percent.
So if the residents want short term rentals and studies show that short term rentals increase property values, why take an opposing position? Whose interests is the County representing? Clearly those of the hotel lobby, some HOA groups, and those few but very vocal residents who do not wish to see the “nature” of their affluent white neighborhoods changed by tenants that are “different.“
During the TU10JUL18 Public Comment Session for Short Term Rentals before the Board of Supervisors, the Board members were asked to raise their hands if any member did NOT take money from the hotel industry. For the record, no hands were raised. As with all County meetings, this meeting was recorded and can be seen on the County’s website as noted in the section below.
Of course it can be argued that this is a money play. This is a way in which the County can further tax its residents. So not only do its residents pay income and real estate taxes but now must pay yet a third tax, a "rental" tax. The County now finds itself in the ridiculous position of taxing rents of 29 days but not of 30 days under the premiss that 29-day rentals constitute a "business" and 30-day rentals magically do not. If the County wants to further tax its residents then it should tax all rentals regardless of duration.
The County's actions illustrate the classic example of how a bureaucracy closes ranks in support of a bad decision and uses taxpayer resources to support its position. As stated above in the section titled "The Facts," the permitted use is clear and nowhere does the Zoning Ordinance limit use by duration. The Virginia Supreme Court in its 2007 decision of SCOTT v. WALKER overturned a lower court decision that allowed a Home Owners Association (HOA) to set time limits on permitted use. The Court even addressed the lawfulness of ordinances that yield absurd situations. For example a homeowner who goes on travel twice in one month can be cited for transient occupancy in one's own home. For example, airline pilots and other such professionals could be cited if their neighbor chose to file a complaint with the County.
Collective Action Filed TH30AUG18 with the 19th Circuit Court of Virginia
Since the Zoning Ordinance did not support the County’s position, the County chose to rewrite the Zoning Ordinance on TU31JUL18 effective MO01OCT18 so that it would support the County’s position. Of course we believe that the County’s position, even with its rewritten Zoning Ordinance, is not supported by the Code of Virginia nor by its Supreme Court. There is a 30-day period in which new rules can be easily challenged and for that reason we filed with the 19th Circuit Court our collective action comprising 35 plaintiffs on TH30AUG18 which was served upon the County the following day, FR31AUG18. It can be viewed below.
The Empire Strikes Back
After the County gave $30k of taxpayers’ money to hostcompliance.com, which is a data mining company that takes advantage of the politically-motivated bureaucrat‘s desire to raise taxes, the Zoning Administrator sent this letter on FR07SEP18 to 847 County residents which she believes are renting or planning to rent out their homes for less than 30 days at a time. This is an apparent attempt to strike back at the mounting legal pressure to abandon its illegal agenda by intimidating these 847 folks into succumbing to the new ordinance directives effective MO01OCT18 that is already facing a collective action (copied above). We have provided many of these folks with the letter listed in the Menu.
Among many other things, this new ordinance requires registration and permits while at the same time eliminating the need for the County to obtain a warrant to search one’s home. It reduces, if not eliminates, the resident’s right to due process and it mandates the surrendering of the names of the residents’ renters, an invasion of privacy that even the Hotel Industry does not do. Just wait until our elected officials in Richmond learn about the craziness up north!
The New Ordinance effective MO01OCT18 is described on the County’s website at https://www.fairfaxcounty.gov/news2/new-zoning-rules-to-allow-short-term-rentals/
A copy of the changes is provided below. Among many other things, this new ordinance requires registration and permits while at the same time it eliminates the need for the County to obtain a warrant to search one’s home. It requires that the homeowner reside with his guests and limits his rental to only 60 days of the year. It reduces, if not eliminates, the resident’s right to due process and it mandates the surrendering of the names of the residents’ renters, an invasion of privacy that even the Hotel Industry does not do. Just wait until our elected officials in Richmond learn about the craziness up north!
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