May 2, 2019
By Christina Sandefur
The Pennsylvania Supreme Court delivered a blow to property rights last week, when it ruled in Slice of Life v. Hamilton Township Zoning Hearing Board that offering one’s home exclusively for short-term rentals is not a “residential use” under zoning laws. The decision means that cities can outlaw home-sharing in residential neighborhoods, even when homeowners and their guests aren’t causing nuisances or any other neighborhood problems.
Unfortunately, cities are increasingly employing this rationale to deprive responsible homeowners of the right to let people stay in their homes, on the theory that home-sharing is a “commercial” activity and therefore should be banned or severely restricted in residential neighborhoods. But occupying a home for a residential purpose is a residential use—whether a person rents a home for a year, two months, two years, or just a few days. After all, whether a property is rented on a long-term basis or a month-to-month basis doesn’t transform the house into a non-residence.
For zoning purposes, what matters in determining whether a use is residential, as opposed to commercial, is how a home is being used—e.g., whether the residents operate like a “single-family” unit—not the financial relationships or sleeping arrangements or length of occupancy.
In fact, in previous cases deciding whether a rental is consistent with local zoning ordinances, the Pennsylvania Supreme Court used to look at “the quality of the relationship during the period of residency rather than its duration.” But the court changed the rule in last week’s ruling and declared that a “single housekeeping unit” must be “sufficiently stable and permanent so as to not be fairly characterized as purely transient” in order to qualify as a residential use—and that single-family residential zoning districts are designed to foster a sense of community and cultivate relationships among neighbors, rather than to prevent nuisances.
When zoning was first invented, it was supposed to be a way of barring nuisances—as the saying had it, “a nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.” But in the Slice of Life case, they’re being used to shape neighborhoods in ways the government approves of, such as creating “a shared commitment to the common good.” In other words, social engineering.
We’ve seen this done before. Zoning laws have frequently been used to remove those deemed “undesirable” by their neighbors. Even though the Supreme Court long ago put an end to overt race-based zoning, recent studies have shown that zoning policies continue to bear a strong relationship to racial segregation.
Indeed, an Arizona court recently barred the city of Sedona from using excuses about “community” to justify its anti-home-sharing rules. The city couldn’t prove that home-sharing caused nuisances or threatened public safety; instead city records showed that officials adopted the rental ban in order to maintain a “small-town character” where “you know most everyone.” (NIMBY-ism, in other words.) And a federal judge recently struck down a Bowling Green, Ohio, ordinance that prevented people from living together unless they were related by blood or marriage because the city wasn’t targeting a health or safety problem, but was just dictating the types of people who could stay in a neighborhood.
Prohibiting people from renting their homes actually undermines community tradition and preservation. Take the case of Donald and Irma Shirkey. They purchased a home in Pacific Grove, California, so their children and grandchildren could carry on the family tradition of visiting the coastal town. To cover the costs of the home, they decided to rent it out when their family was not occupying it. Arizona homeowner Glenn Odegard bought and restored an abandoned, rundown home in the tourist town of Jerome purely for the purpose of renting to short-term guests. Had he not been able to recoup his financial investment by home-sharing, he would never have had the financial resources—or the incentive—to restore the 120-year-old historic home, and it probably would still be a ruin today.
In these and other cases, home-sharing has served to build and strengthen community. And that’s not surprising, since that’s just what hospitality means. How backwards for the Pennsylvania justices to decide that building a sense of community requires slamming the door to visitors.
Homeowners who want to ensure their neighborhoods meet their personal preferences can always join homeowners’ associations that bar home-sharing. But they should never be able to use the heavy hand of government to force their individual preferences on others. That’s unconstitutional, intolerant, and un-American.
Christina Sandefur is the executive vice president at the Goldwater Institute.