Posted by: Patricia Salkin | May 27, 2021

VA Supreme Court Affirms Interpretation of “Dwelling” in Applicable Zoning Ordinance with Respect to Short-Term Occupancy

The circuit court did not err in dismissing challenges to certain amendments to a local zoning ordinance and imposition of a transient occupancy tax. The county board in this case correctly interpreted the original definition of “dwelling” in the applicable ordinance, and its actions in amending the ordinance were not unreasonable, arbitrary, or capricious. Thus, the board was not required to present evidence because the inherent presumption of reasonableness remained intact, and the circuit court did not err in dismissing claims challenging short-term occupancy amendments. Since the original definition did not permit by-right short-term lodging, there is no basis for the argument that the amended definition permits anything more than short-term lodging subject to permitting and other restrictions. Accordingly, the trial court did not err in dismissing the claims related to the short-term lodging amendments. While the plaintiffs’ properties are clearly distinguishable from hotels, motels, boarding houses, and travel campgrounds in many respects, those distinctions are irrelevant in determining whether Code § 58.1-3819(A) allows a locality to levy a transient occupancy tax on those properties and, accordingly, the trial court did not err in dismissing the plaintiffs’ challenge to the occupancy tax amendment. The judgment of the circuit court dismissing the plaintiffs’ claims is affirmed.

Norton v. Board of Supervisors of Fairfax County, 2021 WL 2149384 (VA 5/27/2021)

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