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Wednesday, March 17, 2010

Ind. Decisions "Short-term rentals OK in Ogden Dunes"

Yesterday's Court of Appeals decision in the case of Steven Siwinski, et al. v. Town of Ogden Dunes (ILB summary here - 2nd case) is the subject of stories today in both papers from the region.

Dan Carden and Joyce Russell of the NWI Times report:

The town of Ogden Dunes cannot stop homeowners who want to rent out their property for periods of less than a month, the Indiana Court of Appeals ruled Tuesday.

In 2007, the Porter County town of 1,300 people decided to stringently enforce its residential zoning code, which the town claimed prohibited short-term home rentals. The goal was to prevent the lakefront community from becoming a resort area.

Later that year, the town accused Steven and Lauren Siwinski of renting out their beachfront home five times that summer, essentially using their residence for a commercial purpose, which is prohibited. The town sought a $2,500 fine for each day the home was rented.

Porter Superior Court Judge Mary Harper ruled in favor of the town in June.

However, the appeals court found that -- because the zoning ordinance does not specifically prohibit short-term rentals and because the rented home is being used in a residential manner -- short-term rentals do not violate the zoning ordinance.

"Nothing in the designated evidence established that any commerce or other activities not associated with a residence were ever conducted on the Siwinskis' property," wrote Judge James S. Kirsch in the court's 3-0 decision.

"We conclude that it was error to find that the Siwinskis' occasional short-term rental of their property was a commercial and not a residential use," the court said.

The Court of Appeals reversed the earlier Porter County court decision in favor of the town and ordered the Porter court to rule in favor of the Siwinskis.

"We're disappointed, but it is not totally a loss," Ogden Dunes town Attorney Chuck Lukmann said.

While the decision was not in the town's favor, Lukmann said, it did state that not more than one family can live in a house at a time.

"This will curtail a lot of activities," said Lukmann, adding that many of the problems come from when homes are leased to college students and used as "party houses" or when multiple families lease a single-family home at the same time.

"It is a setback, but it does assist with some of the town's goals," said Lukmann, adding it is not only an Ogden Dunes issue.

"Let anyone ask themselves if they would want weekend renters versus one family living there (next door) permanently," he said, adding a similar situation in any community would devalue property.

Lukmann said the Town Council will likely call an executive session to discuss their next course of action. They will have 30 days to decide whether or not they want to appeal the most recent decision.

Diane Krieger Spivak of the Gary Post-Tribune writes:
A Highland Park, Ill., couple received approval from the Indiana Court of Appeals on Tuesday to rent out their Ogden Dunes home, reversing a lower court's ruling.

The decision reversed a fine of $40,000 the town imposed on Steven and Lauren Siwinski for offering their $1 million home in the small beachfront community for short-term rentals.

"We are pleased that the Court of Appeals has clarified what always appeared clear to my family: If the town wants to ban short-term rentals, then the town should pass an ordinance that specifically bans them," Steven Siwinski said.

The Siwinskis' attorney, Thompson Coburn, had argued that the town's ordinance, which bans renting homes for periods of less than 30 days, was too vague, and that renting the home was not a commercial endeavor, as the town had said.

"Having a gotcha ordinance that doesn't allow homeowners to know what conduct is prohibited, and what is permitted, and then impose a fine of tens of thousands of dollars on a homeowner is not fair to anyone," Siwinski said.

"It is unfortunate that my family was forced to expend many tens of thousands of dollars to defend this lawsuit brought by the town."

The town sued the couple in 2007 in a crackdown on what officials said were loud parties by weekend visitors.

Siwinski, a mortgage broker, sued the town in federal court in 2008, claiming that the town allowed short-term rentals for years. Siwinski said he and his wife were targeted by the town because they were part-time residents.

See also this earlier NWI Times story from July 21, 2008.

Posted by Marcia Oddi on March 17, 2010 09:39 AM
Posted to Ind. App.Ct. Decisions