SCOVA recently granted an appeal in Norton v. Board of Supervisors of Fairfax County, Record No. 201028. Here are the assignments of error:
1. The trial court erred in dismissing Count VIII of the Second Amended Complaint because the Airbnb Hosts produced probative evidence that the Board’s adoption of the STL Zoning Ordinance was unreasonable, arbitrary and capricious where the Board failed to give reasonable consideration for the existing use of property as required by Virginia Code § 15.2-2284 and where the Board offered no evidence (and there was no evidence) of reasonableness to make the issue fairly debatable.
2. The trial court erred in dismissing Counts IV and V of the Second Amended Complaint because the Board’s STL Zoning Ordinance is unconstitutionally vague and violates the Airbnb Hosts’ procedural and substantive due process rights under the Due Process Clause of the United States Constitution, as incorporated by the Fourteenth Amendment, by allowing short-term residential occupancy as a by-right use without a permit but also characterizing short-term residential occupancy as an accessory use subject to mandatory permitting requirements.
3. The trial court erred in dismissing Count III of the Second Amended Complaint because the Board’s adoption of the Transient Occupancy Tax Amendment violates Dillon’s Rule because Virginia Code § 58.1-3819 does not authorize the Board to tax the short-term residential occupancy of a dwelling.
Why is this interesting? Three reasons (none of which have anything to do with Airbnb).
First, as Brother Emmert has documented, SCOVA just doesn’t grant that many petitions for appeal anymore. So anything that gets their attention is worth noting.
Second, although I haven’t run the numbers on this, my sense is that local-government and zoning appeals are granted at a higher rate than run-of-the-mill civil cases. That’s just a hunch, and I could be wrong. But my confirmation bias tells me that this piece of anecdotal evidence is important!
Third, the assignments of error are full of words like “arbitrary and capricious,” “fairly debatable,” “substantive due process,” “unconstitutionally vague,” and “Dillon’s Rule.” These are the noises a zoning case makes as it dies. Yet SCOVA, which basically grants no appeals, has granted this appeal. To what possible end? It seems unlikely that the Court would feel compelled to clarify the Due Process Clause or Dillon’s Rule; there’s plenty of law that needs development in Virginia, and this isn’t it. So could this be an error-correction case?