Posted by: Patricia Salkin | February 19, 2019

GA Supreme Court Dismisses Criminal Zoning Violation for Short Term Property Rental

This post was authored by Amy Lavine, Esq.

The Georgia Supreme Court dismissed a criminal zoning citation for illegal short term vacation rentals in a case decided in February. The ordinances in place when the property owner began using her home for short term rentals were unconstitutionally vague with respect to the permissible duration of rentals, the court concluded. And because there was no clear prohibition, the use of the property for short term vacation rentals was a nonconforming use that was grandfathered in under subsequent zoning amendments that prohibited rentals shorter than 30 days.
The property owner, Christine May, was charged with illegally renting her home in Morgan County in August 2011 after hosting a seven-night vacation rental. Although most short term rentals were prohibited under a zoning amendment passed in 2010, May had been using her property as a short term rental property since about 2008, and at that time there were no specific zoning regulations in place for STVRs.
The county’s primary argument was that in the absence of specific regulations, the prior ordinances should be interpreted to prohibit short term rentals. But as the court explained, the prior ordinances “failed to provide any guidelines whatsoever to enable May to determine that fewer-than-30-day rentals would be prohibited but rentals for 30 days or longer would be allowed….” The court also noted that it was the county’s informal policy under the prior ordinances to prohibit rentals of less than 30 days but to allow longer durations, although nothing in the text of the ordinance would have alerted May that she could rent her home for a month at a time but would be criminally liable for week-long rentals. Without this notice, any purported 30-day threshold in the prior ordinances had to be considered unconstitutionally vague.
The county also claimed that the classification for “single-family detached dwellings” in the prior ordinances was sufficient to prohibit short term rentals regardless of the lack of any specific rental restrictions. A “dwelling” was defined under the prior ordinances to mean “a structure… which is designed or used exclusively for residential purposes,” and the county proposed a dictionary definition for the term “residence,” which was not separately defined in the regulations, as “the place where one actually lives as distinguished from a place of temporary sojourn.” Based on these definitions, it was the county’s contention that single-family detached dwellings had to be places where families “actually lived,” excluding any temporary stays. As the court pointed out, however, the prior ordinance’s definition of a dwelling was written with a conjunctive “or,” such that it required only that a house be “designed” for residential purposes or “used” for residential purposes, but not both.
Even accepting the county’s definitional argument, however, the county still did not explain how the definition of a residence would provide adequate constitutional notice that rentals of less than 30 days would be prohibited while longer rentals would be allowed. “The County’s definition of residence,” the court noted, “in no way suggests that individuals establish a home where they ‘actually live’ only by living there for 30 days or longer.” Indeed, “a person may legally establish a residence in only one day. A family that moves into a new house ‘actually lives’ there on the day they move in — not only after 30 days have passed…. Likewise, people can stay in a place even longer than 30 days without “actually” residing there. ”
It was the court’s conclusion, in summary, that the prior ordinances did not make clear that seven-night rentals were prohibited. The court therefore agreed with the trial court’s determination that the prior ordinances were unconstitutionally vague as to short term rentals and could not be applied to prohibit May’s use of her home as a short term vacation rental property, which was a nonconforming use entitled to continue under the amended rental regulations.

Note: the dispute in this case was also the subject of an Eleventh Circuit decision in 2017, May v. Morgan County, 878 F.3d 1001 (11th Cir. 12/21/2017).
Morgan County v. May, 2019 WL 654190 (Ga. 2/18/19).


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