Town Board workshop on STRs raises more questions; short on answers

There were two parts to Tuesday night’s special called Town Board meeting – dubbed workshop. 

The first part was a closed session where the board was briefed on the lawsuit leveled at the town by Save Highlands. 

A statement issued by the mayor Wednesday morning indicates no one except the board and attorneys Craig Justus and Jay Coward know what the next step is regarding the lawsuit or what was said in that meeting.

“In closed session attorneys Craig Justus and Jay Coward briefed the Town Board concerning the status of the Huff Lawsuit including the town’s motion to dismiss. No formal action or directives were made by the board,” reads the statement.” “We made a motion to dismiss but the court has not ruled on that motion at this time.”

The second part was a voyage through the weeds as commissioners offered their suggestions about the Planning Board’s recommendations for amendments to the Unified Development Ordinance (UDO) regarding Short-term Rentals (STRs) – mostly parsing verbiage, parcels versus structures, etc.

Though the 40 citizens who attended were hoping for some new information or closure of some kind, Attorney Justus made it clear that everything said was just talk and nothing else.

“Any type of discussion like this is merely ideas and concepts and questions the board has and nothing anyone says is binding on the town or its amendments to the ordinance; these are just comments being made so anyone taking notes about exactly what is being said needs to know these are just comments and not binding on the town,” he said.

In addition, Justus informed the board that Tuesday night’s proceedings were premature.

A Public Hearing should have taken place after the Planning Board submitted its ordinance recommendations to the Town Board; work on the ordinance should have started with comments made by the public.

As it stands now, a Public Hearing will be held Thursday, Feb. 24 at 5 p.m. at the Community Building. Another Town Board workshop will be held soon after during which commissioners will take the public’s comments into consideration while adding its own recommendations to the Planning Board’s draft ordinance.

Assistant Planning Director Michael Mathis presented two reports – one a summary of the Planning Board’s recommendations which have been reported on numerous times with nothing new, and the other was staff recommendations.

Staff suggested the category of Transient Dwelling Lodging – which is renting a house less than seven days – be nixed.

“We recommend that the term Transient Dwelling Lodging be removed and the term Whole House Short Term Rental be changed to describe STRs of 30 days or less,” he said reading from his report. “Then, the board could elect to place a minimum length of stay in the notes section based on the underlying zoning district.”

The initial proposed definition for Whole House STRs was less than 30 consecutive days but no less than a minimum duration of seven days.

Mathis said having two definitions confused matters for the Planning Board.

However, no comment regarding the nixing of the Transient Dwelling definition or the Whole House STR definition was mentioned again during the meeting.

Another issue brought up was the Planning Board’s recommendation to allow Transient Dwelling Lodging in districts R3-B4 and on a limited basis in R2 based on location and adjacent land use. 

In other words, if a home in the R2 zone is near a highway or other commercial businesses in that zone then the owner could rent it out less than seven days. But, if a home in R2 is in a more residential area – like Mirror Lake – then renting less than seven days wouldn’t be allowed.

Town Manager Josh Ward said if that tack was taken, then a whole new zone would have to be formed; which Commissioner John Dotson, Attorney Justus, and other commissioners agreed wasn’t a good idea.

Justus reminded the board that R2 is a buffer zone between R1 and business districts and was set up for a reason. 

Certain uses such as soft businesses are allowed anywhere in R2 regardless of where they are located in the district and so allowances, whatever they are, need to cover the entire district.

Much was discussed about whether STRs or habitation should be allowed in accessory buildings in any zone even though the definition of accessory buildings is pretty clear in the draft ordinance.

Customary Accessory Outbuildings appurtenant to single-family dwellings are private garages, noncommercial buildings such as greenhouses and workshops and no residential lodging of any kind is allowed.

Attorney Justus said that for an accessory building to be habitable it would have to meet the county building code so habitation in an accessory building that doesn’t meet the building code is a nonissue. 

Commissioner Marc Hehn wondered if kitchens should be allowed in habitable accessory buildings and if a rule concerning the number of kitchens on a parcel should be discussed – which presumably could curtail STRs in general.

Commissioner John Dotson said a lot of homes in all Highlands’ residential districts have more than one kitchen so that would not be fair or doable.

Regarding violations cited by a code enforcement officer, much was discussed about who would be responsible — the owner or the manager of the property, even if it’s a real estate company – or both.

The Planning Board suggested three strikes and you are out for six months if cited for violations regarding noise, garbage or parking.

Police Chief Andrea suggested making the owner the citable and responsible party whose records and contact information would be readily available versus a manager.

“We need one person who owns the home to be responsible. Trying to hold a company or the person who just happens to be holding a job at the time responsible, would be difficult,” she said. “We need to stick to one person.”

Justus said for sure the owner who is the permit holder will be held accountable but when someone other than the owner – like a manager is in charge – the manager could be cited, too.

Finally, Commissioner Amy Patterson brought up the elephant in the room – vested interests and grandfathering.

She contended that a non-conforming use – a use allowed because it was started prior to ordinances prohibiting such – is not the same as a vested right.

But Justus said the two are synonymous.

“Non-conforming is a local government term and vesting is a court term and they are one in the same,” he said. “I suggest you look at Godfrey vs. Zoning Board of Adjustment. The terms are synonymous.”

In that case, the Zoning Board of Adjustment held that the owners’ use of the property was a nonconforming use and was entitled to continuation under the zoning ordinance.

However, regarding that, if accepted, an amended part of the UDO was discussed. It would read: a nonconforming use shall not be changed, enlarged or expanded, including expanding use into any part of a building or property not previously occupied or in use as the date when the legal nonconformity was established.

But that, too, raises questions, as the town has long held that if a non-conforming structure is demolished or burned to the ground, it can be rebuilt on the same footprint as long as it doesn’t become more non-conforming. Obviously, the structure will change when rebuilt, so the word “change” in that statement is confusing.

From the beginning, Justus has said that STRs in existence today in any zone would be allowed to continue by the current owner or a new owner unless renting stopped for 24 months. He said the vested right goes with the land not the owner, whether old or new. 

Since the issue of vested interests is a hot topic, Justus suggested that part be tackled separately so the board can move forward at a fair pace.

The required Public Hearing is Thursday, Feb. 24 at 5 p.m. at the Community Building.

By Kim Lewicki, Highlands Newspaper

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