Ocean City Today

Rights vs. zoning

Feb 15, 2018



printed 02/16/2018


Short-term rentals versus single-family residential neighborhoods and mobile home districts is not a property rights issue. It is a money issue, and the sooner that is acknowledged, the more quickly this uncomfortable dispute can be resolved.

Were this not the case, this debate would be about the desirability of land use regulation overall, its clashes with individual freedoms, and whether the premise of zoning makes economic sense.

An article distributed by the Virginia Land Rights Coalition in the early 1990s posited that it did not, and cited instances in which property was significantly more affordable, and thus more attractive to buyers, in cities without zoning.

The additional cost of homes and land in zoned cities, the article continued, did nothing more than feed the government maw through fees, permit costs and artificially high tax bases, while infringing on the rights of owners.

Seventy years earlier, however, the U.S. Supreme Court saw zoning differently by ruling that increasing population and other changes of the modern world necessitated “additional restrictions in respect of the use and occupation of private lands in urban communities.”

That 1922 opinion in Euclid v. Amber Realty remains the foundation of zoning today and means, like it or not, that zoning limits the rights of individual property owners.

If it did not, Ocean City would have no building height limits, no setbacks, no landscaping requirements and no downtown design standards.

The restricted land use concept has been taken farther by unincorporated community associations, where an increasing number of people who do business in Ocean City have elected to relocate because of controls that cluster homes of similar style and value and provide for quieter neighborhoods.

But if property rights truly are the focus of the Ocean City argument, the legal question all parties must face is where to draw the line between what is a right and what is not, and how to decide that without being arbitrary.

The matter before the Planning Commission, and the City Council, is not complicated: homes are easier to sell if they can produce revenue via short-term rentals to help with the mortgage; certain zoning districts limit short-term rentals to reflect the original intent of a neighborhood’s purpose; money is at stake. That leaves local government with two choices: it must decide which is more important, the economics of the situation or principles of zoning.

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