[WSBARP] VRBOs

Fri Sep 12 15:29:24 PDT 2014

Rob,

I have attached a decision of the Director of the Seattle Department of
Planning and Development on vacation rental units that may be instructive,
but is unlikely to help your client’s case.

Jim

Jim Strichartz

Attorney

Law Offices of James L. Strichartz

201 Queen Anne Avenue North, Suite 400

Seattle, WA 98109-4824

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From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of Rob Wilson-Hoss
Sent: Friday, September 12, 2014 2:19 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] VRBOs

County is trying to require a VRBO to seek a special use permit. Their
theory is that it is a hotel. They have no regulations other than, for
this zone, 

17.04.212 Uses permitted. 

(a)

Uses. Single-family residential, hobby farm (small scale commercial
agriculture, including aquaculture and wood lots), church, group homes,
cell towers, public utilities.

(b)

Accessory Uses. Cottage industry (home occupation).

(c)

Special Permit Required Uses. Cemetery.

(d)

Signs are permitted not to exceed twelve square feet in size and six feet
in height except for temporary signs permitted by section 17.05.025. Signs
prohibited by
<https://library.municode.com/HTML/16478/level2/TIT17ZO_CH17.03DERE.html#T
IT17ZO_CH17.03DERE_17.03.203NOSI>  section 17.03.203 are not allowed.

They cite me to a WAC that talks about taxation of "such as" hotels and
motels, and is not only about taxation, but VRBOs don't fit under that
section either, definitionally.

I have read Wilkinson v Chiwawa, the HOA case that says that VRBOs are not
commercial but are residential uses under a single-family residential use
covenant restriction. I think that decision applies.

*6 17 Not only is it manifestly clear that the drafters intended to permit
vacation rentals without any durational limitation, such rentals are
consistent with the prohibition on commercial use. If a vacation renter
uses a home “for the purposes of eating, sleeping, and other residential
purposes,” this use is residential, not commercial, no matter how short
the rental duration.
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=201780745
0&pubNum=4645&originationContext=document&vr=3.0&rs=cblt1.0&transitionType
=DocumentItem&contextData=(sc.Search)> Ross, 148 Wash.App. at 51–52, 203
P.3d 383 (holding rental use was residential not commercial because such
use “is identical to [the homeowner’s] use of the property, as a
residence, or the use made by a long-term tenant”). “The owner’s receipt
of rental income either from short- or long-term rentals in no way
detracts or changes the residential characteristics of the use by the
tenant.”
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=201780745
0&pubNum=4645&originationContext=document&vr=3.0&rs=cblt1.0&transitionType
=DocumentItem&contextData=(sc.Search)> Id. at 51, 203 P.3d 383. Nor does
the payment of business and occupation taxes or lodging taxes detract from
the residential character of such use to make the use commercial in
character. See
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=201780745
0&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentIte
m&contextData=(sc.Search)> id. (determining that “whether the short-term
rental is subject to state tax does not alter the nature of the use”).

18 The Association argues that we created in
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=199314376
4&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentIte
m&contextData=(sc.Search)> Mains Farm and reaffirmed in
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=199424724
5&pubNum=661&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=
DocumentItem&contextData=(sc.Search)> Metzner v. Wojdyla, 125 Wash.2d 445,
886 P.2d 154 (1994), “a bright line rule ... that prohibits any commercial
or business use of a property subject to a residential use restriction.”
Reply Br. of Appellant at 7–8. The Association reads these cases too
broadly. In
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=199314376
4&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentIte
m&contextData=(sc.Search)> Mains Farm, “[w]e caution[ed] that the
interpretation of a particular covenant is largely dependent upon the
facts of the case at hand.”
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=199314376
4&pubNum=661&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=
DocumentItem&contextData=(sc.Search)> 121 Wash.2d at 827, 854 P.2d 1072.
We held the operation of an adult family home violated a covenant
restricting use to “ ‘single family residential purposes only’ ” because
it was “ ‘more institutional in nature than ... familial’ ”; “ ‘[t]he
single-family residential nature of defendant’s use of her home [was]
destroyed by the elements of commercialism and around-the-clock care.’ ”
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=199314376
4&pubNum=661&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=
DocumentItem&contextData=(sc.Search)> Id. at 813, 821, 854 P.2d 1072
(emphasis omitted). Similarly, in
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=199424724
5&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentIte
m&contextData=(sc.Search)> Metzner, we held the operation of a child day
care violated a provision requiring properties “ ‘be used for residential
purposes only’ ” because it involved the exchange of money for care of
persons unrelated to the homeowner.
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=199424724
5&pubNum=661&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=
DocumentItem&contextData=(sc.Search)> 125 Wash.2d at 447, 451, 886 P.2d
154 (emphasis omitted).

19 The Wilkinsons’ short-term rental of their properties is
distinguishable from the commercial uses in
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=199314376
4&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentIte
m&contextData=(sc.Search)> Mains Farm and
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=199424724
5&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentIte
m&contextData=(sc.Search)> Metzner. Both the operations in
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=199314376
4&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentIte
m&contextData=(sc.Search)> Mains Farm and
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=199424724
5&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentIte
m&contextData=(sc.Search)> Metzner provided some form of on-site service
that the Wilkinsons do not provide to their guests. Thus, the Wilkinsons’
short-term rentals do not, without more, violate the 1988/1992 covenant
prohibiting commercial use.3

20 Nor does the 1988/1992 covenants’ “single family residential use”
restriction limit to whom vacation rentals may be rented. Reading the
restriction, as the Association does, to prohibit unrelated persons from
residing within Chiwawa would require us to read the provision out of
context. The “single family, residential use” restriction is incorporated
into a provision that restricts the type of structures that can be built
and how far from the front line they must be built. Read in context, the
single-family covenant restricts only the type and appearance of buildings
that may be constructed on the lot, not who may reside there. This reading
is preferred as it “protects the homeowners’ collective interest” and is
consistent with how other states interpret single-family covenants. See
generally Mark S. Dennison, Annotation, Construction and Application of
“Residential Purposes Only” or Similar Covenant Restriction to Incidental
Use of Dwelling for Business, Professional, or Other Purposes, 1 A.L.R.6th
5, at 135 (2005).

*7 [14] 21 Moreover, reading the provision to prohibit unrelated persons
from residing together would produce absurd results. Under the
Association’s reading, Chiwawa residents would violate their covenants
whenever they host a sleepover for their children’s playmates, share their
homes with friends for a weekend, or cohabitate with a partner outside of
marriage. We reject “forced or strained” interpretations of covenant
language if they lead to absurd results.
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=200714628
5&pubNum=4645&originationContext=document&vr=3.0&rs=cblt1.0&transitionType
=DocumentItem&contextData=(sc.Search)> Viking Props., Inc. v. Holm, 155
Wash.2d 112, 122, 118 P.3d 322 (2005).

This is Mason County. What happens in other counties around VRBOs? Are
they allowed without permits? Is there a specific reference to them in the
zoning codes? 

Client will never get a special use permit, based on well-organized and
enthusiastic neighbors. Client mitigates impacts, but needs the income.
Not a bed and breakfast, and no other services are provided except
referrals to restaurants and kayak rental places and so on . 

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com
rob at hctc.com

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All opinions and comments in this message represent the views of the
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