Daily Development for
Wednesday, October 14, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

ZONING AND PLANNING; USE RESTRICTIONS; RESIDENTIAL ONLY: Zoning ordinance restricting land use to "residential use only" may not be construed by City Board of Zoning Appeals to prohibit short term leasing of single family homes for residential purposes.

Brown v. Sandy City Board of Adjustment, 957 P.2d 207 (Utah App. 1998). Homeowners challenged the city board of adjustment's prohibition against renting singlefamily homes in residential zones for fewer than 30 days. The code contained no durational limit on the use of any property. The District Court granted the board summary judgment and the homeowners appealed. The Court of Appeals reversed. The Court of Appeals held that, as a matter of first impression, (1) the board erred in applying a rational basis test rather than a correctness standard, and (2) a zoning ordinance permitting the use of housing units in residential zones as singlefamily homes did not prohibit shortterm leases of such homes. Because zoning ordinances are in derogation of the commonlaw right to unrestricted use of property, provisions restricting property use should be strictly construed, and provisions permitting property uses should be liberally construed in favor of the property owner.

Comment: In Yogman v. Parrott, 937 P.2d 1019 (Or. 1997), the Oregon Supreme Court suggested that a servitude restriction limiting the use of property "exclusively for residential purposes" was inherently ambiguous on the issue of whether short term rentals were permitted. In addition, the use restriction "no commercial enterprise shall be constructed or permitted on the property" was similarly ambiguous. Ultimately, the court indulged in the interpretive maxim used by the court in Brown: provisions restricting free usability should be narrowly construed.

Also see Catawba Orchard Beach Assn. v. Gasinger, 665 N.E.2d 584 (Ohio App. 1996) (short term rentals do not violate " private residences" restriction in servitudes, but case remanded for determination of whether short term tenants' use of subdivision's beach and recreational amenities violated requirement that amenities be used for "noncommercial purposes" (The DD for 2/15/98); PerssonMokvist v. Anderson, 942 P.2d 1154 (Alaska 1997) (Bed and breakfast usage permitted under "residential use"where restrictive covenant limits property to "residential use") (DD for 3/26/98).

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