Air B&B

Zoning officials estimate that there are approximately 1,500 properties currently operating as short-term lodging in Fairfax County.

Fairfax County is currently facing a lawsuit from nearly three dozen residents over a zoning ordinance amendment that its Board of Supervisors adopted on July 30 to regulate short-term property rentals through online services like Airbnb and VRBO.

Filed with the Fairfax County Circuit Court on Aug. 30, the complaint argues that the board violated the county’s zoning ordinance amendment process and overstepped its authority in imposing rules on residential property owners’ ability to operate short-term lodgings.

“The STL Zoning Ordinance Amendment is the culmination of the County’s troubling and misguided efforts over the last two years to try to enforce and regulate residential use and occupancy arising from the popularity and expansion of the house sharing economy through online marketplace platforms such as AirBnB,” the complaint states.

Fairfax County’s Short-Term Lodging Amendment, which went into effect on Oct. 1, allows county residents to rent out single-family homes, townhouses, condos, mobile homes, and apartments on a short-term basis.

Prior to the adoption of the amendment, the zoning ordinance did not officially permit such rentals, though officials estimated that there were already at least 1,500 active, online listings for short-term lodging in the county, according to Fairfax County.

In addition to requiring that short-term lodging operators apply for a new $200 two-year zoning permit, the short-term lodging amendment dictates that owners or renters must be permanent residents of the property they are offering, properties can be rented a maximum of 60 days per calendar year, and guests are limited to six adults with one contract per night allowed.

The amendment also requires operators to have one designated parking space available for lodgers and prohibited properties from being rented out for events or commercial purposes, such as parties, weddings, or fundraisers.

The plaintiffs in the lawsuit against the Fairfax County Board of Supervisors say that an explicit amendment to address short-term lodgings was unnecessary, because the zoning ordinance did not impose any restrictions specifying how long individuals must occupy a building designated for residential use or the method by which they are allowed to occupy the building.

“If a residential building that is designed or used for residential occupancy is occupied in accordance with the applicable district regulations and occupancy requirements, it matters not that the permitted use and occupancy are facilitated through an online marketplace platform in the housing sharing economy or that the permitted use and occupancy are for a period of less than 30 days,” the complaint says.

According to the complaint, the Fairfax County Zoning Office confirmed in response to requests from different residents that occupancies stemming from short-term rentals did not violate the zoning ordinance, disputing the county’s assertion that it did not allow such rentals before the ordinance was amended.

At the same time, the plaintiffs allege that Fairfax County began “targeting” county residents “lawfully using and occupying their residences for residential purposes through residential housing sharing” in or around 2016. At least one of these investigations was prompted by “racially-charged complaints from neighbors.”

Fairfax County’s decision to amend its zoning ordinance to regulate short-term rentals was in part a response to the Virginia General Assembly’s passage of a bill in 2017 that allowed localities to establish a registry for short-term property rentals.

However, the residents’ lawsuit argues that Fairfax County’s regulations, including the 60-day per year limit and the requirement that operators obtain a permit, went beyond the authority granted by state law.

“Nothing herein shall be construed to prohibit, limit, or otherwise supersede existing local authority to regulate the short-term rental of property through general land use and zoning authority,” Virginia Code Section 15.2-983 says. “Nothing in this section shall be construed to supersede or limit contracts or agreements between or among individuals or private entities related to the use of real property.”

The plaintiffs allege that the Board of Supervisors bypassed its “statutory and fundamental obligation” by authorizing the advertisement of a public hearing on the proposed short-term lodging amendment without adopting a resolution of intention to amend the county’s zoning ordinance.

The lawsuit contains one count of failure to initiate the short-term lodging zoning ordinance amendment, a count of unlawful piecemeal downsizing, and a count of violating the Dillon Rule that says local governments are limited to powers expressly granted to them by the state.

The lawsuit also argues that Fairfax County’s adoption of a short-term lodging amendment violated the plaintiffs’ rights regarding procedural and substantive due process, equal protection, and unlawful search and seizure.

The lawsuit describes the short-term lodging zoning ordinance amendment as “arbitrary and capricious…without any valid relationship to the health, safety and welfare of the citizens of Fairfax County.”

In their complaint, the plaintiffs call on the court to declare the short-term lodging zoning ordinance amendment void and to grant them “such other and further relief as the nature of the evidence and the case demands.”

Fairfax County did not return the Fairfax County Times’ request for comment before publication.

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