Appellate Court Rejects Small Town Politics - Bed and Breakfast Held To Be Permissible Use in Residential Zone

December 28, 2008 | Roger McEowen

A frequently litigated issue involves permitted business uses in areas that are zoned as residential.  Many local zoning ordinances are not specific concerning what business uses are permissible (and probably shouldn’t be specific in any event), and that fact leads to litigation over questionable uses.  Also, in many small-town zoning cases, local politics are involved.  All of these matters were involved in this case.

Here, the plaintiffs purchased a home located on the Loess Hills Scenic By-Way in Crescent.  About three months later, they established a bed and breakfast in the home consisting of one bedroom, an adjoining private bath, and an adjoining porch patio.  Guests were charged $80 per night.   Before they purchased the home, they checked the local zoning ordinance.  The home was in a district zoned R-1 (residential), but “small home occupations” were allowed.  Unfortunately, after the bed and breakfast was established, numerous neighbors complained to the city planning and zoning commission on the basis that the bed and breakfast would “ruin” the neighborhood by bringing unknown individuals into town, increasing traffic, and reducing privacy and security.  The planning and zoning commission recommended rejecting the plaintiff’s proposal for the bed and breakfast, and the city determined that the business violated the R-1 zoning ordinance and cited the plaintiffs for a municipal infraction.  The trial court held that the ordinance was constitutional, that the plaintiffs had violated the ordinance and that the bed and breakfast was not within the exception for “small home occupation.”  The trial court also found that a bed and breakfast was only allowed in an R-3 district which permits rooming and tourist houses.  Thus, the plaintiffs were ordered to shut their bed and breakfast operation down.

On appeal, the appellate court reversed.  The court noted that the ordinance did not specifically define “small home occupation” and, as such, the court could turn to dictionary definitions of “small” to help interpret the provision.  Based on that approach, the court noted that “small” meant limited in scope or degree.  Accordingly, a one-bedroom bed and breakfast was limited in scope and permitted under the exception.  In addition, the court referenced a ordinance in Minot, North Dakota that sets forth extensive tests for “home occupation.”  Under those tests, a permissible home occupation must:  (1) employ no more than one person other than the owner (other than family members); (2) the exterior looks like other residential dwellings; (3) vehicular traffic is not more than what is normally associated with a residential dwelling; (4) a dangerous activity is not involved; and (5) no loud noises, noxious fumes or perceptible vibrations are involved.  Applying those factors to the present situations, the court noted that the plaintiff’s business would not employ any outside employees, the exterior of the home would not be distinguishable from other homes in the neighborhood, no increase in vehicular traffic beyond what would normally be associated with a residence would be evidenced, no danger or any type of nuisance would be presented.  In addition, the court noted that the clientele base of the business would not pose any problem to the neighborhood.  The court also noted that there was nothing to support the city’s argument that since a bed and breakfast was permitted in an R-3 zone it couldn’t be a permitted use in an R-1 zone.  Accordingly, the bed and breakfast was a permitted use.

The appellate court was entirely unimpressed with the neighbors’ arguments.  While the court didn’t mention it, a reading of the case makes one wonder whether the plaintiffs were from the community or had recently moved in.  Small towns can be known for their mistreatment of “outsiders” and the arguments raised by the neighbors against the bed and breakfast clearly appeared to be disingenuous and spiteful.  Those are not the type of complaints that would likely be raised against someone who had been a part of the community for a lengthy period of time.  In any event, the neighbors’ complaints don’t speak well for the community.  Meduna v. City of Crescent,761 N.W.2d 77 (Iowa Ct. App. 2008).