The Town of Herndon joined other local jurisdictions, such as the City of Alexandria and the counties of Fairfax and Arlington, in approving Short-Term lodging regulations. During the final Herndon Town Council Public Session of 2019, held Dec. 10, in a vote of 6-0, Council took action and approved Zoning Text Amendment, ZOTA #18-03 to permit and establish limitations on Short-Term Rentals as an accessory use to the principal occupancy of a dwelling in the town.
During council level discussion before the vote, members asked for clarification on some of the proposed required provisions. Comment ranged from Operator requirement to add their unit to a Short-Term Registry in addition to obtaining the town's $200 Zoning Permit, the impact of Short-Term lodging as a possible affordable housing option, Short-Term Rentals providing a revenue stream for Operators, and the unexpected consequence of town staff being able to note and enforce housing occupancy policies through the Operator's submission of a site plan indicating the number and location of required parking spaces for the residence.
ZONING ADMINISTRATOR David Stromberg presented the report. "The purpose behind this amendment came about partially because of the rapid growth of sharing economy … through platforms such as Airbnb and Vrbo (Vacation Rentals by Owner), as well as changes made by the General Assembly in 2017," said Stromberg. His PowerPoint presentation defined Short-Term Rental as: "A room or space that is or intended for occupancy for dwelling, sleeping, or lodging purposes, for a period of fewer than 30 consecutive days, in exchange for a charge for the occupancy. Short-Term Rental does not include accessory dwelling unit, bed and breakfast, boarding house, or motel."
However, according to Stromberg, if the application property was located within an area subject to additional restrictions pursuant to covenants, bylaws, condominiums acts, and such, the town Permit would not revoke or nullify limitations applicable to the property.
Stromberg discussed highlights of the proposed amendment. He focused on Short-Term Rental Regulations incorporating performance-type standards for the operation of the properties and registration/licensing requirements. He said that the Short-Term Rental Operator must be a permanent resident of the property hosting the Short-Term Rental, and if the Operator was not the Owner, written consent from the Owner of the property must be obtained. According to the town’s Department of Community Development Short-Term Rental Application as viewed online, "Any violation related to Short-Term Lodging is deemed to be a violation by both the Operator and the Owner."
As for occupancy, for a Short-Term Rental of the entire dwelling, meaning the whole house and the occupant Operator not present, such could be no more than 90 nights per calendar year. However, the 90-day limit did not apply when the Operator was present and renting out a portion of the dwelling; that number of nights remained unlimited. According to Stromberg, the maximum number of lodgers per night could not exceed six adults including the residence's permanent occupants. Also, the maximum number of rental contracts per night was one, meaning all lodgers would be named on the same rental contract. In addition, Short-Term Rentals had to have a minimum of two designated parking spaces available for lodgers in single family-residences and one designated parking space for every condo/townhouse. Events and activities, other than those with the authorized lodgers, were prohibited during any Short-Term Rental period.
Also, all advertisements had to include the Short-Term Rental Permit Number and identify the location of the required parking space(s). Transient Occupancy Tax had to be collected for each rental contract and a monthly return filed even if no taxes were due. The Zoning Administrator's issuance of the Permit would not invalidate any other provision of federal, state, or local law, any restrictive covenant, or any property owners' association bylaw. As for safety, a working fire extinguisher and smoke/carbon monoxide detectors were required, as was the zoning Permit with the $200 fee for the two years. There would be an initial inspection and reinspection.
According to the town's website, to be compliant the effective date is Feb. 1, 2020, or risk a $500 penalty.
DURING QUESTIONS from Council, Jennifer Baker referenced a letter sent to Council from local real estate agents. Her understanding, she said, was that the agents wrote that registering with the state was enough, and questioned why a town registry too. "Was that your understanding," Councilmember Baker said to Stromberg. "When the state passed the legislation, it allowed locality to have Short-Term Registry, and as a locality, you can exercise that as the only thing you adopt, but you can also have zoning regulations for any accessory use just like we do for a home-based business," said Stromberg in reply.
Councilmember Pradip Dhakal asked for clarification on occupancy limitations, the maximum numbers of lodgers. "That maximum number of six (adults) actually combines with the number of residents already living in the house. For example, if two people live in the house, (and) they want to go for short -term rental, then they can only allow four more and those four more should come with one rental agreement," said Councilmember Dhakal.
"That's exactly correct," said Stromberg. The online application states, "The maximum number of lodgers per night may not exceed 6 adults, including permanent residents, except where the Virginia Uniform Statewide Building Code requires fewer occupants."
Councilmember Bill McKenna said, "In regards to how this could shape the town...We have been talking about affordable housing. If you have a single room you want to rent out, this might help to defray that cost... The unintended consequences are since we have these parking ordinances... that we are putting in place, we will be able to identify places that are not in compliance. They are breaking the rules. We can determine what that is based upon the fact that they have people living there that maybe shouldn't be...based upon parking patterns," said Councilmember Bill McKenna.
"This (amendment) captions the essence, the spirit of what the town meant by this ordinance," said Councilmember del Aguila.
According to the online Summary of Town Council Actions, Mayor Lisa C. Merkel recused and disqualified herself from presiding and voting on the transaction. Mayor Merkel stated for the record that she owned a rental home in California with her husband and, although the matter might not have application solely to property or business in which she had a personal interest, she relinquished the gavel to Vice Mayor Sheila Olem and left the Council Chambers during proceedings.
For more information on Short-Term Rentals and to access the application, visit https://www.herndon-va.gov/departments/community-development/residential-resources/residential-zoning-information.