Alto Lakes Golf & Country Club Community Covenants and Zoning Ordinances do not permit the use of residential properties for business/commercial purposes. Over the last few years some Alto G&CC members have come to the conclusion that short-term rentals should be classified as commercial/business activities.
As regards a review of recent case laws, primarily the case of “Mason Family Trust Plaintiff vs Devaney Defendant, a suit filed by Mason against Devaney to stop short-term rentals of a second home in the Upper Canyon area of Ruidoso, Devaney had occupied the home for brief periods and subsequently contracted with a local property management firm to handle rental of the property.
Judge Karen Parson’s court in Carrizozo ruled in favor of Devaney, that this was a right of home ownership, and that continuation of short-term rentals was allowed within the deed restrictions of the area. Mason appealed to the Court of Appeals of the State of New Mexico (filed 3/26/09 #28,554). The Appeals Court’s conclusion would likely lead the reader to the interpretation that “short-term rentals” are not commercial business activities and are not forbidden in single-family zoned Districts such as the Alto Lakes Special Zoning District.
Conversely, wording in the final conclusions of the New Mexico Appeals Court suggests the following:
In the above case (Mason vs. Devaney) Mason argued “the property must be used for stated deed restricted single family dwelling purposes only” (the same as Alto G&CC Convents and ALSZD statements).
To paraphrase the court’s argument:
In the context of a residential subdivision, we (the court) interpret a dwelling purpose to be used as a house or abode, and once proper use has been established, we do not attach any requirement of permanency or length of stay. We (the court) think that rental of a house or abode for short-term use as a shelter in which to live is significantly different from using the property to conduct a business or commercial enterprise on the premises. The Court goes farther in stating that, “residential purposes does not preclude renting one’s home to third parties, so long as the third parties use the tract for living purposes.”
The final conclusion stated the following:
“Under our (court) ruling, a deed restriction (Covent/Ordnance) for dwelling purposes does not demonstrate intent to prohibit a short-term rental for dwelling purposes.” “We (court) hold that, under the particular circumstances in this case, Devaney’s short-term rental of his property for dwelling purposes was a permitted use and not for business or commercial purposes. Therefore, the use was not in violation of the deed restrictions.”
ALSZD PROPOSED POLICY:
Based on the above, the Commission is led to the belief that short-term rental occupancy of dwelling units does not constitute a visitor oriented commercial use in the District’s residential areas.
In order to maintain the residential character and livability of its neighborhoods, however, and to prevent the adverse effects that might occur with short-term rental occupancy of dwelling units in residential neighborhoods, ALSZD finds it prudent to regulate the short-term rental occupancy of dwelling units within the District.
Conversations and exploratory workshops are currently being held to begin addressing how ALSZD will regulate short-term rentals, and the public will be notified so their input and ideas can also be heard.