Focus Group Policy Q&A

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Q: As I am sure you are aware, we seem to be at an impasse with the Study Group. The College and students continue to refuse to bring anything meaningful to the table and residents are not willing to change what we have now without the college providing consequence for those student renters who willfully violate the existing regulations. The college's unwillingness to take any responsibility for the actions of their students off campus is simply unacceptable to residents being asked to change current rental occupancy restrictions.

I have attached the proposal I presented to the Study Group last Thursday evening. It is admittedly a rough draft but the concept is one that gained the acceptance of a majority of the members. It provides both college involvement and enables opportunity for appropriate penalty for violation of City ordnance. The primary difficulty is the College's insistence that a requirement for the students to give their actual local address to college officials would run afoul of the Family Educational Rights and Privacy Act (FERPA).

Maybe I'm wrong but I am not alone in my belief that the College could, if they were so inclined, require students give their actual address while attending W&M. If nothing else, they could make it a condition of acceptance to the College. They should do so because of the necessity of knowing where students actually live for safety issues, both natural and man made. The College was quick to condemn the Dillard complex due to asbestos and other maintenance issues yet they appear unconcerned when students disregard city housing restrictions which among other concerns are designed to provide safe occupancy for the approved number of tenants. The now infamous home at 711 Richmond Rd. is a perfect example. During rental inspection that residence was found to have the original electrical power panel which has a total of four (4) screw in type fuses and 100 Amp service. Such a condition would be barely adequate for three occupants, much less 6. The proposals under consideration would ensure such discrepancies were corrected before allowing multiple tenants to reside in those older homes. That the college college continues to ignore these concerns for the safety of their students is beyond me. With regard to utilizing the information in the off campus housing office, the information would be used to ensure adequate housing as well as an educational tool in teaching good citizenship.

I have always been under the impression that FERPA was created to prevent the disclosure of private information to third parties or third party entities. As you will see when you read my proposal, student information would remain within the confines of the college and with the college using the information as proposed, the information would under no circumstance need to be provided to anyone outside the college administration. The privacy rights of students would be maintained and the college would be providing necessary assistance in alleviating what is portrayed to be a critical close in housing shortage. The requirements of FERPA, as I understand them, would be met.

I would appreciate your opinion regarding whether or not the college could, if they desired, require students to give the actual address where they would reside while attending the College of W&M, and if they could use that information on campus to help the city ensure compliance with local ordnances.

If you agree with the college's position that they cannot require actual addresses of their students, do you have any alternative that would provide an enforceable situation that residents of the city might endorse? I believe residents remain open to possible change in occupancy regulations but only if the students and college provide the necessary support.

Please info the Study Group on your response. I’m looking forward to your response. Thanks, Bill Dell 
A:  From Christina Shelton, Deputy City Attorney 

FERPA deals with the disclosure of records held by Educational Institutions and the access students and their parents have to educational records. There is nothing in FERPA that would prevent the college from collecting local address information, but it does limit disclosure of those records and in the case of directory information, allows disclosure so long as the subject individual has notice and an opportunity to opt-out of disclosure of their directory information being released. I have attached at the bottom a summary of the disclosure provisions of FERPA.

Code of Virginia (1950), Sec. 2.2-3800 et seq., which governs state institution collection and dissemination of data, requires compliance with a number of conditions, notices and restrictions in collecting data that would have to be complied with, but it does not appear that it would prohibit the collection of local addresses. I am not aware of anything else that would prohibit or limit the collection of this data. Perhaps the college can provide a reference to any other law that otherwise limits the collection of directory information.

There would, as described below, still be issues with releasing any directory information to the City under FERPA... the person whose address is disclosed can object and opt out of the directory information being released. However, so long as the person who is the subject of the information has proper notice of how the information will be used, and the other provisions of 2.2-3800 are complied with, it appears the college could use that information intra-agency as necessary, at least under state law.

Generally, schools must have written permission from the parent or eligible student in order to release any information from a student's education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR § 99.31):

School officials with legitimate educational interest;

Other schools to which a student is transferring;

Specified officials for audit or evaluation purposes;

Appropriate parties in connection with financial aid to a student;

Organizations conducting certain studies for or on behalf of the school;

Accrediting organizations;

To comply with a judicial order or lawfully issued subpoena;

Appropriate officials in cases of health and safety emergencies; and

State and local authorities, within a juvenile justice system, pursuant to specific State law.

Schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. Schools must notify parents and eligible students annually of their rights under FERPA. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school.

--Chris Shelton, Deputy City Attorney
Q: Dr. Kevin Hughes, Dean of Students of Christopher Newport University (CNU), was asked:
If an off-campus student is living illegally (say that there are 5 unrelated people living a single-family home and the area is zoned single-family) and lies to Newport News City officials about living there or lies about how many unrelated students are living there, is it a violation of the "Lying" infraction of the CNU Honor Code? The definition of "Lying" in the W & M Honor Code is different from the wording of the CNU Honor.
A: The short answer to your question is that yes, it could be a violation of our Honor Code. There are a couple of things to keep in mind though. First, we are unlikely to hear about a Codes/Compliance violation such as this. While we get some complaints about codes issues, it is usually property upkeep. Those are typically lumped into a verbal conversation we have with neighbors who are complaining about noise/parties and verbalize the "grass is too long, too many cars are parked on the grass", etc.... We have never rec'd notification from the city that a student has been found in violation of city codes. We do get the reports on tickets/arrests for noise, alcohol, etc... from NNPD, though.

Next, depending on the situation, if our student is found to be the 4th or 5th person in the house, I would expect he/she would be removed, which on some level eliminates the neighbor issue. So while we could adjudicate, it doesn't really provide any relief for neighbors.

Finally, understand we are not a single-sanction institution. Unlike UVA or Washington and Lee, which says if you violate the Honor Code you are dismissed, we (and W&M) allow for other possibilities. Depending on the specifics of this case, the student may not be suspended or dismissed. Even if they are, it just means they are not at CNU any more. They could still be the neighbor.
Having said all of that, our Honor Code does apply off-campus as well as on. The best examples I can give are when students use fake IDs or when they would steal something (think shoplifting). If that occurs and we find out through NNPD, then we would (and have) charged them with Honor Code violations and sanctioned them. That is why the short answer to your question is yes.
Q:  Can NCAA housing regulations apply to off-campus housing arrangements?
A:  No.
--Virginia Ambler,  Interim Vice President, Student Affairs, The College of William & Mary 

Q: I am a little confused as to how a homeowner who rents to several unrelated students does not have to adhere to the Sec. 21-605 Code of “Rental of Bedrooms in single-family detached dwellings to roomer and visitors." It seems to me that 3 college students who are not related and renting a room in a home are “roomers.”

What about properties that are purchased (by parents, who don’t reside there and have a different address for tax purposes) for their child/student to live in while attending school, and have other students living there as well. I am aware of one situation like this in my neighborhood, where there are generally four cars parked near the home on a regular basis. Which zoning code would apply here, the 3-unrelated person rule, or special use permit required for rental of more than one roomer?


A:
Sec. 21-605 of the Zoning Ordinance that you refer to covers the rental of bedrooms in OWNER-OCCUPIED single family detached dwellings. If a family or an individual owns and is living in the house, they are covered by this section, and must get BZA approval for renting to more than one roomer (four roomers in two bedrooms is the maximum).

If a family or individual owns the house but does not live there, the occupants of the house are considered to be a family, which is defined by the ordinance as being not more than three unrelated persons.

An owner-occupied dwelling is allowed to rent one room to one roomer by right. Up to two rooms can be rented to up to two roomers each (total of four) with a special exception approved by the Board of Zoning Appeals. An owner-occupant must be “an adult individual who owns at least a 50 percent undivided fee simple interest in such dwelling and the lot upon which it is located and regularly occupies said dwelling as his or her principal place of residence.” Therefore, a student living in a house owned by his or her parents is not considered to be an owner-occupant.

A student living in a house owned by his or her parents is regulated by the “family” definition, which allows up to three unrelated persons to live in a house. The student would be considered one of the three persons allowed by the family definition.
-- Reed T. Nester, Planning Director, City of Williamsburg

Q: Can the Zoning Ordinance require or recommend rental dwelling leases to include either a lease template or addendum that states what the relevant zoning ordinances are? In other words, can the City require that the 3 person rule (or any change) be stated in the lease contract?

A:
The zoning ordinance contains legal requirements that are law and not recommendations. So anything written into the zoning ordinance regarding the use of property would be a legal requirement and not a recommendation.

The Court has held that the zoning enabling legislation was meant to permit traditional zoning ordinances directed at the physical characteristics of land and having the purpose to neither include nor exclude any particular socio-economic group.

Board of Supervisors of Fairfax County v. DeGroff Enter., 214 Va. 235, 198 S.E.2d 600 (1973); see also Board of Supervisors v. Davis, 200 Va. 316, 106 S.E.2d 152 (1958); Board of Supervisors v. Carper, 200 Va. 653, 107 S.E.2d 390 (1959); BZA v. Columbia Pike Ltd., 213 Va. 437, 192 S.E.2d 778 (1972).

Localities are allowed to provide for reasonable limitations on the use of property for certain activities within zoning districts based on factors such as overcrowding, parking, traffic, size of lots, whether the property is zoned residential or commercial, etc. Localities are specifically permitted to limit the number of unrelated people who may occupy a property generally, which limitation applies to all single family dwelling units in the City. Beyond these general limitations on use, the imposition of additional restrictions affecting only certain property within districts would require the process of approval and issuance of a Special Use Permit or a Special Exception. Any SUP or Special Exception is issued to permit the use of a certain parcel in a way that is more intensive, or otherwise not be entirely in keeping with the permitted by-right uses in a zoning district, and then only when the zoning ordinance provides that a use may be allowed in a zoning district with an SUP or a Special Exception. The use would have to be an additional use not otherwise available to the owner as a use by-right. Any additional conditions imposed by the SUP or Special Exception must be reasonably related to the proposed use of the property as permitted by the SUP or Special Exception.

As a matter of general zoning, we are not be able to require that landlords include specific provisions in leases that re-state or otherwise reference the zoning ordinance and there is no legal basis in existing law to take such an action.

Imposing additional requirements for specific actions by owners or limitations of use as to individual residential rental property would only be appropriate conditions in the context of an SUP or Special Exception. The proposed Ordinance presented for consideration to the Planning Commission and the City Council last year, for example, did include a process whereby in exchange for permitting occupancy by a fourth tenant, the owner was required to provide copies of existing leases, permit inspections, etc. This was acceptable because the owner would be voluntarily submitting to the program for the additional benefit the program provided, and the restrictions contained in the proposed ordinance were voluntary and not imposed on owners generally.

Additionally, if we could generally require owners to include specific provisions in their residential leases as part of our zoning ordinance, it would not apply to existing residential real property used as rental property because rights would be vested under previous zoning which did not contain such a requirement.

A couple of other points related to the question… Many leases generally contain provisions prohibiting the sub-lease of a property by the tenants, and also provisions allowing the landlord to terminate the lease in the event that the tenants violate federal, state or local law. In the cases in which the landlords include these provisions in the lease, tenants are by lease, obligated to comply with the zoning ordinance. In leases containing these provisions, violations of the occupancy limitations in the zoning ordinance by sub-leasing to additional tenants would be cause for the landlord to terminate the lease. However, it is up to the landlord to determine whether or not to terminate the lease. (Keep in mind that as with all residents of the City, tenants in residential rental property are legally required to comply with the zoning ordinance regardless of the presence in the lease of such a specific requirement.)

There is one additional factor to consider. Even if we could generally require this provision for rental property, we would have difficulty enforcing such a provision. And based on experience, the presence of such a provision in the lease would probably have little impact on whether or not the tenants sub-lease the property to additional tenants beyond the occupancy limitation. The existing occupancy limitations are well known and publicized at this time, but often ignored. Further, even if the City could require such a provision in a lease, the lease is a contract between the landlord and the tenant, and so the City has no standing to enforce the provisions of a lease nor to force the landlords to enforce the provision of a contract to which the City is not a party.
--Christina Shelton, Deputy City Attorney
Sec. 21-605. Rental of bedrooms in single-family detached dwellings to roomers and visitors.
(a) Intent. These regulations are established to allow the rental of bedrooms to roomers and
visitors in single-family detached dwellings while at the same time preserving the residential
character of the neighborhoods in which the dwellings are located. To these ends, bedroom
rentals are limited to owner-occupied dwellings. Rentals to roomers, being largely residential in
character, are allowed throughout residential districts; rentals to visitors, being more commercial
in character, are allowed only along specified major streets to avoid bringing increased traffic
and congestion by nonresidents into residential districts. In addition, rentals to visitors are
limited to a minority of the single-family detached dwellings on the specified streets, with
greater restrictions placed on the minor corridors, in order to ensure that all of the corridors
maintain their residential character.
(b) Owner-occupied single-family detached dwelling defined.
(1) For the purpose of this section, a single-family detached dwelling shall be deemed "owneroccupied" only so long as it is regularly occupied by:
a. An adult individual who owns at least a 50 percent undivided fee simple interest in such
dwelling and the lot upon which it is located and regularly occupies said dwelling as his or her
principal place of residence; or
b. The stockholders of at least 51 percent of the individual outstanding voting stock of a
corporation, chartered in the Commonwealth of Virginia, or the members of a limited liability
company chartered in the Commonwealth of Virginia, who own the controlling interest therein,
which corporation or limited liability company owns full fee simple title to the dwelling and the
lot on which it is located.
(2) Ownership shall be established as follows:
a. Record ownership of fee simple title shall be certified by an attorney-at-law duly licensed to
practice in the Commonwealth of Virginia, and shall be based upon examination of the land
records in the Clerk's Office for the Circuit Court of the City of Williamsburg and County of
James City made not earlier than the day before delivery of the certification to the zoning
administrator. Such certification shall be in form acceptable to the city attorney.
b. The identity of stockholders of a corporation and members of a limited liability company
shall be established by affidavit of all stockholders or members in form satisfactory to the city
attorney.
Such affidavit shall state that said stockholders of the majority interest of the corporation, or the
majority of the members of the limited liability company, regularly occupy the dwelling as their
primary residence.
c. On the first business day of each January following the issuance of the special exception, the
ownership and occupancy of the dwelling and lot, if unchanged, shall be established as follows:
1. In the case of individual ownership, by affidavit of the owner or owners originally identified
in the attorney's title certification furnished in connection with the permit application;
2. In the case of corporate ownership, the corporation's continued full fee simple ownership and
the identity of the controlling stockholders shall be established by the affidavit of the president of
the corporation and the continued occupancy of the dwelling and lot as the principal residence of
the controlling stockholders shall be established by their affidavits; or
3. In the case of ownership by a limited liability company, the company's continued ownership
of full fee simple ownership, the fact that the members previously identified as owning control of
the limited liability company continue to do so and that all of said members continue to occupy
the dwelling and lot as their primary residence shall be established by their affidavits.
d. If a change in fee simple ownership of the dwelling and lot has occurred since the last annual
certification, than [then] the current fee simple ownership shall again be established by certificate
of a duly licensed attorney-at-law based upon examination of the land records in the Clerk's
Office of the Circuit Court for the City of Williamsburg and the County of James City. In such
case, the identity of controlling stockholders, in the case of a corporation or controlling
members, in the case of limited liability company and the facts regarding occupancy shall be
established by affidavits as provided in section 21-605(b)(2)c. above.
e. Should ownership, control or occupancy of a dwelling for which a special exception has been
issued at any time fail to meet the requirements of this section 21-605(b), and if compliance has
not been achieved within 60 days of the zoning administrator's notice of noncompliance, then the
special exception shall become null and void.
(c) Rental of one bedroom to one roomer. The rental of one bedroom to one roomer shall
be allowed by right, subject to the following:
(1) Rentals shall be limited to owner-occupied single-family detached dwellings.
(2) The furnishing of meals for compensation to such rental occupant by a member of the
family is also permitted.
(3) No additional off-street parking shall be required.
(4) Applicable provisions of the Uniform Statewide Building Code, and all other applicable
laws and regulations, shall be met.
(d) Rental of bedrooms to more than one roomer. The rental of bedrooms to more than one
roomer shall be contingent upon approval as a special exception use by the board of zoning
appeals in accordance with section 21-97(f), and subject to the following:
(1) Rentals shall be limited to owner-occupied single-family detached dwellings.
(2) No more than two bedrooms in the principal dwelling may be rented to roomers.
(3) No persons other than members of the immediate family residing on the premises shall be
involved in the rental of the permitted bedroom(s).
(4) The furnishing of meals for compensation to permitted occupants by a member of the family
is also permitted.
(5) No more than two roomers shall occupy a bedroom at the same time, unless otherwise
reduced by the requirements of the Uniform Statewide Building Code and all other applicable
laws and regulations.