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Subdivision Can cities prohibit rentals as a condition of subdivision approval?

paiste13

Cyburbian
Messages
243
Points
9
My gut tells me no but I'm coming up short with a google search looking for specific court cases saying as much.
 

Dan

Dear Leader
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(Context: United States as a whole. Individual states may have different precedent, or different levels of persuasive weight for considering precedent from other states. Canadian provinces might have different laws or precedent. For Louisiana, forget about anything I wrote below.)

(Disclaimer: I'm a professional urban planner, not an attorney.)

My gut tells me it's ... iffy.

There's no restrictions against restrictive covenants that limit rentals. Planning Board recommendation (or coercion) of owner occupancy covenant terms as an approval condition could be in a kind of murky area, though.

Zoning usually doesn't regulate form of tenancy, except in the case of "public health, safety, and welfare". (Example: requiring a minimum 24 hour room rental for lodging, so the use doesn't have the externalities of a "no-tell motel".)

If there's no precedent, it becomes a matter of first judgement; weighing the plain language and intent of the law against otherwise non-binding legal scholarship, logic, and sense of overall justice.

Somewhat related, kind of: a lot of zoning code provisions for accessory dwelling units (ADUs) require the property owner to live in either the principal or accessory unit full time. Some have exceptions for snowbird, sabbatical, or long-term vacation situations. It gets me thinking about whether such provisions would stand up in court in the long term. (It's in the FBC I wrote, mainly to encourage resident diversity, ensure a supply of close-in affordable housing for year round permanent residents, reassure prospective residents that the neighborhood won't become another "student ghetto", and discourage externalities from exploitative student rentals -- public welfare. Our attorney had no issues with it.)
 

Doohickie

Cyburbian
Messages
3,109
Points
44
Student ghetto.... I like that. That's exactly what our neighborhood was looking to prevent when they went to exclusively single family zoning.
 

Gedunker

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I've always steered my Board away from making these kinds of stipulations. As Dan points out, it's iffy, at best, whether it runs afoul of the Fair Housing Act. But, moreso, how do you enforce it? We have two professionals and an admin in a city of ~40,000, there's no way we could keep up with that.

I will say, however, that we have stipulated, when told so by the applicants, that certain units are limited to "senior citizens", as defined by HUD. In that event, HUD takes on the compliance role and I can busy myself with something else.
 

mendelman

Unfrozen Caveman Planner
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I agree with Gedunker.

Although, a community likely could do this, it's practically impossible to enforce, and surely a waste of legal and political capital.

In my lengthy and deep municipal community development and code enforcement experience, the negative externalites can easily be dealt with directly (too many cars, parking on grass, loud noises, general messiness, etc.) as they are not exclusive to rental occupancy, but common externalities of, simply, human habitation.

The form of tenancy is not an automatic indicator of 'quality' occupancy. It's a matter of management. It's common that the worst house on a block is owner occupied. There are many long time rentals in my current community that we never have to deal with.

Whenever this subject comes up, it is the lead P&Z&CE administrator's responsibility to find ways to mitigate the specific concerning externalities, not the tenancy.
 
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RandomPlanner

Cyburbian
Messages
1,778
Points
26
Yeah I would say no - subdivision is merely approving adequate access to lots - zoning controls what happens on the lot - I don't think you can differentiate between rental or condo/ownership in zoning

a dwelling is a dwelling
I totally agree, @luckless pedestrian !

A subdivision should be just that -- a division of land. Obviously, regulations can stipulate that the subsequent lots be buildable but, in my experience in NYS and GA, I would argue that the subdivision process is certainly not the place to deny or approve based on who is going to live there. That's discrimination.

And since zoning is about land use, not people, I would argue that as long as it's long-term rental property, zoning can't differentiate between rentals and owner-occupied.
... But having said that, I have seen regulations that require owner-occupation for home businesses and short term vacation rentals, so maybe I'm wrong that zoning can't regulate it.

Hmm.
 

luckless pedestrian

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12,687
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54
I totally agree, @luckless pedestrian !

A subdivision should be just that -- a division of land. Obviously, regulations can stipulate that the subsequent lots be buildable but, in my experience in NYS and GA, I would argue that the subdivision process is certainly not the place to deny or approve based on who is going to live there. That's discrimination.

And since zoning is about land use, not people, I would argue that as long as it's long-term rental property, zoning can't differentiate between rentals and owner-occupied.
... But having said that, I have seen regulations that require owner-occupation for home businesses and short term vacation rentals, so maybe I'm wrong that zoning can't regulate it.

Hmm.

as an aside - I am shocked there aren't more cases of people appealing home occupation and vacation rentals to say that they are a customary use of a dwelling
 

RandomPlanner

Cyburbian
Messages
1,778
Points
26
as an aside - I am shocked there aren't more cases of people appealing home occupation and vacation rentals to say that they are a customary use of a dwelling
I totally agree -- especially for home occupations in this digital age.

Of course, we all know there are loads of people working out of their homes who don't have home occupation licenses and will never get caught -- either because there's no way to know that the business is happening or because the municipality has more urgent regulations to enforce first.
 
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