What is a short-term residential rental? A short-term residential rental is proposed to be a home occupation in which an owner who occupies a dwelling unit as his/her primary residence, rents out that dwelling unit, or portion thereof, to a lodger. The lodger must compensate the host for the stay. No individual lodger may rent lodging in the same dwelling unit for more than 30 days in one year. The Zoning Ordinance would refer to short-term residential rental as “accessory homestay,” and would be added to the list of home occupations that are allowed within a residential dwelling by a person(s) who uses the dwelling unit as his/her principal residence.
What in the zoning ordinance precludes this use now? There are several provisions in the Zoning Ordinance that regulate what is allowed for each use. The Zoning Ordinance includes use tables articulating what uses are allowed in each zoning district; the Ordinance works such that if a use is not expressly permitted, that means it is prohibited. With respect to residential uses, “dwelling unit” is defined by the Zoning Ordinance as a use allowed exclusively for residential occupancy. The use classification system in the Zoning Ordinance classifies residential use under the “Household Living” category, which describes residential occupancy as use of a dwelling by a family, with tenancy arranged on a month-to month or longer basis; and articulates that uses where tenancy is arranged for a shorter period are not considered residential. Residential units arranged for short term stays of less than 30 days for rent or lease are classified in the “overnight accommodations” category, and allowed only in buildings that are expressly approved for a hotel (which is allowed as a matter of right in some zoning districts, and requires special exception site plan approval by the County Board in other Zoning districts), or a bed & breakfast (which is allowed only in one-family zoning districts, and requires special exception use permit approval by the County Board).
How many properties in Arlington are currently doing this despite it being prohibited by zoning code? How many are in multi-family buildings? Staff does not have exact numbers or locations, as listing services do not make addresses available. Data available on AirDNA (a site that compiles information from Airbnb) indicated that between August and September 2016, there were between 900-1600 listing in the County. However, these data represent only one listing service, so it is possible that there are other properties listed on other services.
Why should the County regulate short term residential rentals? Why now? Recently, use of online residential, short-term rental platforms, such as Airbnb, Craigslist, and other services, have become more prevalent in Arlington and nationwide. Data collected in September 2016 from AirDNA shows that Arlington had 986 properties listed on Airbnb. However, the Arlington County Zoning Ordinance does not currently allow short-term residential rentals. The zoning office has received both questions about how to conduct this use legally, as well as complaints about existing short-term residential rentals. Zoning regulations governing short-term residential rentals will enable the County to address problems and concerns if they arise, and provide standards to allow the use in a manner that protects public health and safety and the character of residential neighborhoods.
The reason for considering an amendment now is that in 2016, the Virginia General Assembly considered legislation that would have precluded local governments from enforcing local zoning laws restricting the establishment of short-term residential rentals in any zoning district where residential uses are permitted. It would also have kept the identity of short-term rental properties hidden and precluded local governments from collecting and auditing Transient Occupancy Taxes, as they would for any other lodging property. A version of the legislation passed in the 2016 session, but the Governor referred it to the Virginia Housing Commission to study and create draft legislation for consideration in the 2017 session. The Virginia Housing Commission has created the Short-Term Rental Work Group for this purpose. By acting this year, Arlington will have an opportunity to potentially inform the legislation considered by the General Assembly in 2017.
Are commercial activities already allowed in residential districts? How are short term residential rentals different from the commercial activities already allowed? Residential zoning districts include single-family (R) districts and multiple-family (RA) districts. Only a limited number of commercial uses are allowed, and only in a limited capacity in residential zoning districts.
Home occupations are a limited commercial use allowed in all residential dwelling units in R, RA and in commercial/mixed use (C) districts. A home occupation is an accessory use that is allowed to be conducted in a dwelling unit used by a person as his/her principal residence. Examples of home occupations include a home office/studio of an artist, author, contractor, craftsperson, repair workshop, etc. Short-term residential rental is proposed to be regulated as a home occupation, and like home occupations, would be allowed as accessory to a person’s principal residency in the dwelling and subject to certain limitations.
In addition to home occupations, residential zoning districts also allow some principal commercial uses, subject to special exception use permit approval by the County Board:
- Federal, state and local offices: allowed in R and RA districts
- Bed and breakfasts: allowed in R districts only, subject to certain limitations. There are no approved Bed and Breakfasts in the County, however, there is one proposed Bed and Breakfast scheduled for review by the County Board at its November 5, 2016 meeting.
- Open-air markets, which include farmers’ markets and flea markets held periodically on a regular basis: allowed in R and RA districts, subject to certain limitations.
- Medical and dental offices in R and RA districts, only when located in existing institutional buildings located on primary or secondary arterials; or in RA districts within existing multiple-family buildings, or in new buildings, only when such building retains the exterior appearance of a residential building
Are short-term residential rentals regulated in other places? Short-term residential rentals are becoming an issue of interest in many local jurisdictions. As part of the process to develop the proposed regulations, staff reviewed adopted regulations in Virginia from Charlottesville, Roanoke and Botetourt County. Staff has also reviewed adopted regulations from Portland, Oregon; San Francisco, California; and Denver, Colorado.
Elements of the proposed amendment
What’s included in the proposed accessory homestay regulations? The proposed regulations could regulate the following (review the summary of the draft provisions or the proposed Zoning Ordinance amendment text for more information):
- Accessory use. The use would be allowed only as accessory to residential use of a dwelling occupied by the owner of the dwelling as his/her primary residence;
- Multifamily buildings. The regulations could include a cap on the maximum number of units allowed to be used for accessory homestay within an individual multifamily building;
- Maximum number of lodgers. The regulations would limit the maximum number of lodgers allowed to be hosted on each night and would limit groups of lodgers to people renting under a single contract;
- Area of dwelling. The regulations would address how much of the dwelling unit (all or partial) could be used for the accessory homestay.
- Parking. The regulations could include a requirement for up to one parking space.
- Safety equipment. Units used for accessory homestay would be required to have working smoke and carbon monoxide detectors and fire extinguishers accessible to all lodgers;
- Building code requirements. Any unit used for accessory homestay would have to meet building code requirements for the use in that building, and any sleeping room used for accessory homestay would be required to have met the requirements for a sleeping room when it was created.
- Food and beverage service. The regulations would address whether or not food and beverages could be served to lodgers. The regulations would not, however, regulate use of the kitchen by lodgers.
- Other commercial activities. The regulations would prohibit other commercial activities from being allowed under an accessory homestay permit.
- Application and permit. The Zoning Administrator would issue an accessory homestay permit upon approval of an application.
- Revocation of permit. An accessory homestay permit could be revoked for failure of the host to comply with the regulations and permit conditions, or refusal to cooperate with a complaint investigation.
Is there any limit on the amount of space within our unit you can rent out? The proposed amendment does not limit the amount of space, however, the County Board could adopt limitations when it considers the amendment in December. The proposed amendment does, however, limit the number of lodgers who can rent the unit on each night.
What is the difference between a tenant and a lodger under the proposed amendment? The Zoning Ordinance (through the use classification system) defines tenancy arranged on a month-to month or longer basis as residential occupancy; whereas uses where residential units are arranged for short-term stays of less than 30 days for rent or lease are classified in the “overnight accommodations” category, and allowed only in buildings that are expressly approved for a hotel (which is allowed as a matter of right in some zoning districts, and requires special exception site plan approval by the County Board in other Zoning districts; and is prohibited in other zoning districts), or a bed & breakfast (which is allowed only in one-family zoning districts, and requires special exception use permit approval by the County Board). Under the proposed amendment, “lodger” would be a new term, and hosting a “lodger”, for compensation, would be allowed only under the accessory homestay provisions.
Public process and outreach
How can I weigh in? There are two more opportunities to provide your feedback:
- The Planning Commission will hold a public hearing and make a recommendation on the proposed regulations at its meeting on November 30, 2016
- The County Board will hold a public hearing and consider the proposed amendment at its meeting on December 10, 2016
What is the timeline for the regulations process? If adopted, when would the regulations become effective?
- October 15 – November 29, 2016: Staff will be reaching out the public, to organized groups and to advisory groups and commissions to provide information and gather feedback about the proposed amendments.
- November 30, 2016: The Planning Commission will consider the proposed amendments and make its recommendation to the County Board.
- December 10, 2016: The County Board will consider the proposed amendments at its meeting on December 10, 2016.
- December 31, 2016: Should the County Board adopt regulations for short-term residential rental (accessory homestay), they would become effective on December 31, 2016.
Enforcement and limitations through other laws or regulations
Will accessory homestay be allowed in multi-family buildings? Yes. In December, 2016, the Building Official had indicated that based on preliminary research, it was probable that the accessory homestay use would not be allowed in most existing multiple-family buildings in the County under the Virginia Uniform Statewide Building Code (Building Code). This initial determination was based on recent experience with an apartment building that had requested use of some units for long-term use as transient units (e.g. for use for stays of less than 30 days) by an entity who did not use the unit as a permanent residence. However, after further investigation, including discussions with other Building Officials around the state, the Building Official has determined that the Building Code for condominium and apartment use emphasizes that the primary use (more than 50% of the time) of units in these buildings is permanent residence, and this aligns with the recently adopted zoning requirements for short term rental. Therefore, permits for accessory homestay in multiple-family buildings may be issued to applicants who meet all zoning requirements.
How will these regulations be enforced? Zoning inspectors would enforce the proposed use on a complaint basis. Should the proposed amendment be adopted, users of on-line residential rental hosting services will have defined standards to look to, which should increase compliance.
Will my condominium or homeowners association be able to govern these uses? Yes. The proposed Zoning regulations would continue to allow condominium and homeowner associations to have their own rules to prohibit or further limit short-term residential rental use, or to allow short-term residential rental use in a manner consistent with County regulations.
Application and fees
Will there be a fee for short-term residential rental (accessory homestay)? For an Accessory Homestay Permit, the filing fee is $63. The filing fee is paid at permit issuance, after review and approval is complete.
What will the application process include? An Accessory Homestay application would include the following requirements in addition to those proposed to be included in the Zoning Ordinance.
- The owner would be required to notify abutting and across the street/hall (and immediately above and below if in a multiple-family buildings) neighbors, through a letter that includes a description of the accessory homestay operation; contact information for the owner and responsible party (if not the owner); and how the requirements are met.
- The application is anticipated to require proof of the following:
- Business license from the commissioner of the revenue (if applicable);
- Payment of property taxes;
- Valid certificate of occupancy for use as a dwelling unit (if applicable);
- Certified mail receipts showing proof of delivery (signature of recipient is not required) of all notification letters described above;
- Copy of evacuation plan that will be posted on the inside of the front door of the dwelling unit if it is in a multiple-family building