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Saturday, March 10, 2018

Zoning proposal on short-term rentals could create hardship for HOAs

Homeowner associations for local communities, like Lafayette Village in Annandale, could be negatively affected by a  proposed zoning amendment to allow short-term rentals. 
By Donna Jacobson

As most of you are aware, Fairfax County is in the process of developing an amendment to the Zoning Ordinance that would reverse the current ban on transient occupancy (less than 30 days) in residential neighborhoods. The amendment would allow short-term rentals (SRTs), also referred to as short-term lodgings, such as those found on Airbnb.

Communities with HOAs have generally been immune to zoning changes by the county due to the contracts HOAs have with their residents. However, since many of these HOA covenants were drafted before the rise of STRs, most of them do not address this issue.

Most of these HOA documents as a whole focus on enabling the community to govern itself in order to provide a stable, residential environment. If STRs existed when most Fairfax County HOA covenants were written, they would probably not be allowed.

However, now that the county is developing a zoning amendment to allow STRs, most HOAs find themselves in a situation where they are being forced to deal with a form of home occupation they otherwise never would have allowed.

Fairfax County has held a number of community meetings on STRs, but the focus of these meetings has been on the actual STR regulations and did not address the situation in which most HOAs currently find themselves.

At meetings I have attended, county staff said that if HOAs want to protect themselves from STRs they need to amend their covenants. However, from a practical perspective, it is difficult and costly for an HOA to amend its covenants. The governing documents for my HOA require two thirds of residents to approve an amendment, and residents I’ve talked to from other HOAs say they have similar requirements.

I’ve also been told that if HOAs do not want STRs in their community they can protect themselves by taking STR operators to court for violating the “no commercial use” section of their covenants.

That is not a realistic alternative for a couple of reasons: It is expensive for HOAs to go to court, and it’s currently not clear from relevant court rulings whether or not STRs are legally classified as a commercial use of residential property. This unanswered legal question places HOAs in an uncertain position when trying to prevent STRs in their neighborhoods.

Also, I’ve discovered that most HOA representatives, as well as residents not in HOAs, think that the current proposed amendment to the Zoning Ordinance would have a number of detrimental effects on their communities and feel that as of yet, Fairfax County has not offered them a reasonable way to protect their neighborhoods.

They think that the Fairfax County Department of Code Compliance would not be able to adequately enforce STR regulations and that this task would end up falling on HOAs. Moreover, some HOA representatives have voiced concerns that HOA dues may need to be increased in order to deal with the additional issues that are associated with STRs, such as changes in the character of the community, impact on common property, parking, trash, noise, and public nuisance issues.

These concerns being brought forth by HOA representatives make me think that Fairfax County needs to do more analysis of this issue before approving any amendment concerning STRs. The county should have ongoing discussions with HOAs and other citizens’ groups in order to enumerate the likely community risks associated with STRs, along with the means and costs envisioned for mitigating these risks.

HOAs have done a tremendous job over the years building strong neighborhoods that have attracted long-term, stable residents. I’m concerned that an amendment to allow STRs in residential areas could be detrimental to established HOAs and other stable neighborhoods, possibly damaging the very foundation that has helped to make Fairfax County a desirable place to live.

Jacobson is a resident of Lafayette Village in Annandale but is not a current member of the HOA board. This piece reflects her personal views and not the HOA’s. She represents the community on the Mason District Council of Community Associations


  1. Very well put, Ms. Jacobson! I, too, live in Lafayette Village; have been here since 1998 and still love it. I share her concern about STRs and while I hope a strong majority of my neighbors would vote against allowing them here, I'm not certain of it. I suppose an informal survey might give us some insight...?

    1. Sure hope your survey is better than the skewed STR survey the County conducted. The County didn't even include a question asking if residents favored or opposed Short Term Rentals. They also never included a "None of the Above" response option. The fix was in.

  2. Thank you Donna for your very thoughtful article. Unfortunately, our county can't be bothered to do an analysis of the consequences of allowing this type of business in a community with an HOA. Neighborhoods, such as single-family houses, that have a voluntary citizen association or no citizen association at all have depended on the County to enforce Zoning Codes to protect them on issues like parking, trash, noise, etc. HOAs have had in its power the ability to enforce these issues on their own. But right now the county is working overtime to rewrite zoning code ordinances (zMOD--zoning modification) to make it easier for anyone, especially developers, to disregard basic regulations that have protected neighborhoods for the past 40 years. The ordinances are being revised so that they are so general and dumbed down that it’s almost impossible to break a regulation and get written up. The county is also working to condense as many areas as possible into CBCs, PDH, PDA so that developers can expedite their developments to make housing denser and more profitable for the developer. This allows a developer to give less green space, less parking (30% reduction in parking), higher building heights, and less of a need to protect adjacent properties from an inconsistent new development. The county encourages their Code Compliance investigators not to write up infractions if at all possible, because they don’t want to have to deal with an appeal from the person receiving a ticket. The county doesn’t want their Zoning Ordinance Appeals (ZOA) to have to hear a case and make a decision on an infraction. The ZOA hates having to do its job. Pretty soon there will be no zoning ordinances that will need to be enforced.

    STRs are businesses no matter how you want look at it. There will be negative consequences, because a home, condo, or townhouse are residential and incompatible with a business. The county doesn’t care what the effects will be.

  3. To be precise, the business is the motel business. The motels-in-our-neighborhoods business, which as it stands, is illegal. Amazingly, the Board has sat on its hands for years now as over 2,500 illegal motels have been operating for years in our neighborhoods they waited for everyone else to act.
    The problem is not the Department of Code Compliance; it is the Board of Supervisors, use of County Attorneys (the ones who represent the Board’s interests) to enforce what the Commonwealth Attorneys (Our attorneys) should be enforcing, plus the clueless rubber-stamping, dog and pony show of the Board of Zoning Appeals and the Planning Commission.
    Following the dictates of an ‘Affordable Housing’ plan developed by the Southern California Association of Governments (SCAG) and implemented in Los Angeles County, the Board loves the idea of using illegal businesses to replace legal business in commercial areas and both legal and illegal business to replace families in stable valuable residential neighborhoods. It provides a means for wealth concentrating banks and other international entities to monetizing and bank the value we in the middle and upper middle working class neighborhoods created in our communities over the last two, three and four decades.
    BTW, SCAG also proposed the ZMOD type land use control coup de grace the Board’s development committee is working on now. Basically a move away from a rule-of-law type Comprehensive Planning land use system to a rule of decree by the international financial and development community. With that in place the looting of Fairfax will be a fait accompli, there will be nothing for community activists to do, presumably an intended consequence.
    One thing we can be sure of, the Supervisors in Mason and some nearby Districts will be well equipped with inexcusable excuses for introducing such an atrocious proposal. The totally inappropriate word “fairness” will come up often. Contrast this Board’s “The ‘sharing economy is the happening thing” attitude with the existing hell-no-to-that-crap ordinance that today requires over $16,000 just to apply for an SUP for a motel in residential neighborhoods, i.e. BnB. The Board that passed that ordinance was a Board that truly honored its fiduciary duty to protect and defend the families, and their neighborhoods and their commercial sector.
    Today the BOS doesn't worry about representing us when the land use predators and international corporations can put so much money into their pockets with plans like motels in neighborhoods. The McMansion, Residential Studio Unit saga continues to morph, cloaked in a corporate manufactured need for "Affordable Housing" mantra.
    We blew the last election four years ago thinking it was a blue and red thing (thank you again for trying Mollie). It’s not about political parties; it is about the families, all the families.

  4. As if we don't have enough problems with all the renters, and the BoS, Board of S--t wants to s--t all over us rather than make this county a better place that people want to live in. They chose to turn our single family and townhouses into sardine cans. VOTE THEM OUT!

  5. It is clear to me that "the fix" on allowing STR's in residential communities is definitely in, and is mostly likely due to either heavy lobbying by such companies as AirB&B or the dollar signs that the county sees when STR's will be allowed. As with Arlington, Fairfax will most likely impose some sort of tax on the rental of rooms in STR's, thus getting more money from a home that previously was solely residential and only paid property taxes. Penny Gross indicated to us in our last community meeting that it is fruitless to try and combat this new legislation and that our only hope lies in how it is regulated. Make sure to demand that homeowners be present at ALL times that rooms are rented out, or you really will have no recourse should unruly renters near you make you life miserable.