Posted by: Patricia Salkin | March 11, 2015

WI Appeals Court Finds Short-Term Rental of a Single-Family Dwelling in a Single-Family Residential District Permissible Absent a Clear and Unambiguous Law Prohibiting It

The owners of two homes initiated this suit after the Board told them they could not use their homes for short-term rentals. James and Cathy Radmann (d/b/a HEEF Realty) purchased a second home to use for short-term rental and eventual retirement. The Radmanns started renting the house out in September 2012, and on September 12, 2012, they got a notice from the City informing them that the property use violated City Ordinance 13–1–46, which was said to prohibit the rental of a single-family dwelling in a single family residential district. The Owners appealed the citations, and the Board denied their appeals. The Owners brought complaints for certiorari review, which were consolidated. The circuit court found that the homes are single-family dwellings and that the Board made an error of law when it determined that short-term rental was not a permitted use, and the Board appealed.

The court adopted a plain language approach to interpreting the ordinance, and noted that in cases of ambiguity it should be favor the free use of property. Thus, if the City is going to draw a line requiring a certain time period of occupancy in order for property to be considered a dwelling or residence, then it needs to do so by enacting clear and unambiguous law. Since the City offered no authority that anything about the concept of “residential” distinguishes between short-term and long-term occupancy, the court found the Ordinance did not clearly and unambiguously prohibit this use. The court therefore affirmed the circuit court’s order reversing the decision of the Board.

Heef Realty and Investments, LLP v City of Cedarburg Board of Appeals, 2015 WL 442445 (WI App. 2/4/2015)

The opinion can be accessed at: https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=134011


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