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Peter’s Take: Regulating Airbnb

by Peter Rousselot — October 20, 2016 at 1:00 pm 0

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Peter’s Take is a weekly opinion column. The views and opinions expressed in this column are those of the author and do not necessarily reflect the views of ARLnow.com.

At its October 15 meeting, the County Board approved a County staff recommendation to advertise draft regulations relating to Airbnb.

Discussion

It’s important for health, safety and other reasons to appropriately regulate Airbnb, similar service providers and Arlington homeowners who use these services. Pursuing a robust public-engagement process with respect to draft regulations can be a constructive way in which to improve a draft.

However, the County staff’s proposed December 10 deadline for the County Board’s final adoption of appropriate regulations is problematic due to:

  • The exclusion of certain related issues either from the draft regulations and/or from public engagement regarding the draft regulations, and
  • Virginia’s ongoing work to enact a state law to cover many of the same areas.

Arlington County staff proposal

The County staff proposal is available here. At its October 15 meeting, the County Board approved this proposal with some amendments.

The staff proposal:

  • Defines a new home occupation use called “accessory homestay,”
  • Establishes standards for this use,
  • Acknowledges that many related areas have been excluded from advertisement of the proposed regulations, citizen engagement and/or final action on December 10.

Among the many areas that have been EXCLUDED are:

  • Requirement of owner-occupancy of the unit,
  • No more than one contract for an overnight stay.

Exclusion of any area in the advertisement means that, no matter what any affected party might say, no changes can be made without re-advertising and providing a new thirty-day review period. But, based on public feedback, re-advertising may be the wisest course.

The staff proposal also:

  • States that staff “does not know what the 2017 General Assembly will do” regarding the state legislation, but
  • Hopes that “implementing regulations in Arlington now could help inform the state’s decision.”

Virginia state legislative status

Legislation regulating Airbnb and similar service providers almost passed in the 2016 Virginia state legislative session. That legislation would have established the Limited Residential Lodging Act (the Act), and would have allowed property owners to rent out their homes or portions thereof for periods of less than 30 consecutive days, or do so through a hosting platform.

The hosting platform could have chosen to register with the Virginia Department of Taxation, in which case the hosting platform would have been responsible for the collection and remittance of all applicable taxes on behalf of the property owner.

Although this legislation did not pass, the Virginia Housing Commission was directed to convene a work group with representation from the hotel industry, hosting platform providers, local governments, state and local tax officials, property owners and other interested parties to explore issues related to expansion of the framework set forth in the draft legislation.

The group was ordered to complete its work by December 1, 2016, with the goal of developing draft legislation for consideration by the 2017 session of the General Assembly.

Because Virginia is a Dillon Rule state, there is a significant risk that state legislation in 2017 could preempt Arlington’s regulations adopted in 2016. If such state preemption were to occur, it could be seriously disruptive because it could significantly change one or more key substantive provisions in Arlington’s regulations.

Conclusion

Arlington should seriously consider deferring final approval of appropriate regulations until after the 2017 state legislative session. Is there a compelling reason why the final regulations must be enacted in December 2016?

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