April 2015 - Single-Family Residentials

By Claire Silverman, Legal Counsel, League
Zoning ordinances are construed in favor of the free use of private property and an ordinance that lists “single-family dwellings” as a permitted use in a “single-family residential district” and does not require occupancy over a period of time permits short-term rentals as a permissible use. Heef Realty and Investments, LLP v. City of Cedarburg Board of Appeals, 2014AP62 (Ct. App. Feb. 4, 2015, publication recommended) (petition for Review filed).
In Heef, property owners who rented their properties in single-family residential districts for short terms were cited for violating the City’s zoning ordinance. One of the property owners had purchased a second home for the purpose of renting it on a short-term basis. Cedarburg’s ordinance lists “single-family dwellings” as a permitted use in a “single-family residential district.” An additional ordinance in effect at the time of the citations defined “dwelling” as “[a]ny building or portion thereof designed or used exclusively as a residence and having cooking facilities, but not including boarding or lodging houses, motels,hotels, tents, cabins, or mobile homes.” The property owners appealed the citations to the Board of Appeals which denied the appeal. The owners sought certiorari review of the board’s decision. The circuit court concluded that the Board erred as a matter of law when it determined that short-term rental was not a permitted use for a single-family dwelling under the City’s ordinance. The Board appealed that decision to the court of appeals which upheld the circuit court.
The court of appeals held that the case was governed by a 1985 court of appeals case, State ex rel. Harding v. Door Cnty. Bd. of Adjustment, 125 Wis. 2d 269, 271, 371 N.W.2d 403, which it said was “squarely on point.” Harding involved a time share owned by 13 families who each were going to use the property for four weeks per year. The county board of adjustment revoked Harding’s building permit under the county zoning ordinance. The circuit court affirmed the revocation. On appeal, the court of appeals reversed, reasoning that the use constituted a single family dwelling because only one single family would be staying in the property at a time. The court noted that the property was “both designed for and will be occupied exclusively by one family” and that “[a]lthough a different family would occupy the building each week, that one family would occupy the building to the exclusion of the other twelve families. The court said the ordinance failed to require occupancy over a period of time, and it could not impose such a requirement.
The court of appeals stated:
What Harding was about, and what this case is about, is whether a zoning board can arbitrarily impose time/occupancy restrictions in a residential zone where there are none adopted democratically by the City. Harding tells us that the designation as a single family dwelling does not, without more, distinguish between one or thirteen families as owner/occupants or between short-term and long-term rentals. There is nothing inherent in the concept of residence or dwelling that includes time. The City offers no authority that anything about the concept of “residential” distinguishes between short-term and long-term occupancy. If the City is going to draw a line requiring a certain time period of occupancy in order for property to be considered a dwelling or residence, then it needs to do so by enacting clear and unambiguous law.
Heef, slip op. at 8, para. 13.
Zoning 519