$741-a-night beachfront rental back online in Branford after state Supreme Court decision
Those who can afford $741 a night to rent a six-bedroom oceanfront mansion in Branford that sleeps 20, feel free to pack your bags.
That Branford mansion, on Crescent Bluff Avenue, was listed on short-term rental site VRBO as of Thursday despite years of opposition from neighbors and the area's homeowners association. The house is likely to stay online: The owner of the property, Frances Wihbey, won his case before the state Supreme Court in a decision announced this week.
The court ruled in a 4-2 decision that short-term rentals were permitted at the home: Wihbey was grandfathered in under the vague zoning regulations in force in the neighborhood when he paid $688,000 for the Victorian-style structure in 2005.
Wihbey started renting the house to vacationers soon after he bought it, posting on the VRBO site. Under the area's zoning rules at the time, short-term rentals were not specifically mentioned, much less prohibited, his attorneys argued.
Complaints from several neighbors and the Pine Orchard Association led to a revision of the zoning rules in 2018 to explicitly ban short-term rentals, but Wihbey argued that he was grandfathered in under the previous rules and continued renting.
A four-year court battle ensued, centering by the end on the ambiguity of the zoning code in force at the time of Wihbey's purchase. Dictionaries and multiple legal precedents were brought out to attempt to define what zoning officials meant by terms like "single-family dwelling" and "resident."
But four state Supreme Court justices decided that the rights of the homeowner to control his property superseded attempts to refine the rules. "We do not agree.. that a regulation that permits single-family dwellings ipso facto prohibits the rental of a dwelling for less than a particular period of time," the majority said in its decision.
The two judges who dissented said that allowing short-term rentals in the neighborhood undermined the intent of the Pine Orchard Association's rules. "Today, the majority of this court discounts both the importance of zoning regulations to the interests of the community as a whole and the plain meaning of the terms included in the applicable residential zoning regulations," Justices Andrew J. McDonald and Steven D. Ecker said in their dissent.
Does Wihbey's victory mean that short-term rentals are free to pop up all over Branford and the state?
Hardly, a lawyer representing the homeowner said. Most towns carefully follow the rules on grandfathering in "nonconforming uses" when they pass new zoning regulations, said D.J. Mahaney, a Waterbury attorney who represented Wihbey. In addition, relatively few homeowners have been offering short-term rentals long enough to pre-date existing regulations.
"The zoning body of law or land use regulation is a specific body of law, and you have to do it in the appropriate way," Mahaney said. "You just can't criminalize someone's property as a way of circumventing what the regulations say."
Instead of relying on zoning regulations, some Connecticut towns are now starting to pass ordinances that restrict or ban short-term rentals entirely.
In November, Middlebury town officials passed a "prohibition of residential short-term rentals" ordinance imposing a fine on violators. They sent letters to VRBO and AirBnB soon after to demand that Middlebury short-term listings be taken down, according to the Waterbury Republican-American.
State lawmakers also acted this year to empower towns to take action on short-term rentals with a bill signed into law by the governor in June.
The new state law gives towns and cities a new tool to deal with complaints about traffic and disruption caused by short-term rentals, said Betsy Gara, executive director of the Connecticut Council of Small Towns. Gara testified in support of the new law earlier this year.
"It provides greater clarity for municipalities moving forward with ordinances to regulate short term rentals," Gara said. "However, we would encourage our municipalities to consider the recent court decision and determine how to properly draft those ordinances to ensure that they accomplish what they're intending to do."
Mahaney warned that ordinances restricting how homeowners can use their property could be challenged on legal grounds. "I think it's unconstitutional. Historically, zoning has always been done through regulation," he said.
Attorneys across the state are gearing up for challenges to short-term rental ordinances like Middlebury's, but Mahaney said he's done. "Another four year battle? No," he said. "I'm retiring."
The four-year court fight over short-term rentals was just the latest legal battle on Branford's Crescent Bluff Avenue: Neighbors wrangled for more than a decade about use of an easement. The street consists of about 15 homes, ranging in value from about $800,000 to $2.7 million, according to Zillow.
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