Highlands Planning Board is at an STR crossroads

The community building was packed Monday night to hear the Planning Board’s recommendation on the town’s two short-term rental ordinance amendments.

But it looks like that could be a long time coming – board members declined to discuss anything until they were afforded legal counsel and instead scheduled another meeting for Aug. 2.

“As we heard last year, there are two sides of these arguments which are very well legally versed, but which come to two very different conclusions about what is legal and what is not,” said member Brad Armstrong. “As we went through this last time, we tried to steer clear of litigation and focus more on the use and it occurs to me that this time around we may want to focus more on the legalities.” 

Chris Wilkes said over the past year, the Planning Board was assured legal counsel was coming but none has.

“We did our homework — even though we disagreed on what was in there – and now at this point they come back with even more stuff that will obviously be a trigger down the road and we can’t get any sort of information about legal counsel from the town?” he asked. “If it’s just us on our own, how do they expect us to come up with stuff that’s solid unless they already have something that they are just streamlining?” 

Planning Director Michael Mathis said he was told to tell the board that its legal counsel has said that they have reviewed both proposals before the Planning Board and feel they are legally defensible in a court of law.

He also said the board can either recommend approval or it doesn’t have to recommend approval of the ordinances, “but you need to review these two ordinances and you may want to start with option one first.”

However, Chairman Darren Whatley said yes, the board had the two options supplied by the Town Board “but we can take them apart and put them together and come up with something completely different. We are not bound by these.”

However, Wilkes said if the town isn’t going to provide legal counsel [even though its likely it will only represent the town’s side] he didn’t feel like the board should have to adhere to any sort of deadline.

Member Rick Trevathan, a retired lawyer, said that was especially true in light of all the time and effort the board put in last time.

“To be told we can’t get any guidance after we have done all this before – that’s very offensive,” he said.

Member Nick McCall said he didn’t know how they could draft or propose something without direction and without the ability to ask questions of legal counsel.

“I just don’t see how we go down that avenue. If this wasn’t backwards, it would be easier to go that route,” he said.

Members even suggested a closed session to confer with lawyers, but Mathis said a closed session wouldn’t be possible because it’s a client/attorney privilege and the Planning Board isn’t a client.

But all that came after an hour-long public hearing during which the board of seven heard much of what has been voiced over the past year during Town Board public comment periods as well as at the Feb. 24 public hearing.

The subject of the Feb. 24 public hearing – which legally didn’t count because it wasn’t properly advertised – was the proposed STR ordinance the Planning Board originally recommended to the Town Board in January.

Since the Town Board didn’t like it, it was nixed outright which led to commissioners passing their own STR version at the May Town Board meeting.

However, due to the public hearing advertising snafu, the process has now started over which requires the Planning Board to once again make its ordinance recommendations to the Town Board.

But this time, as was noted, instead of waiting on the Planning Board to come up with a recommended ordinance, the Town Board sent two versions of its own for consideration.

Both members of the Planning Board and members of SAVE Highlands which represents those for STRs said the process this time around is backwards.

“The Planning Board will be proposing an amendment to the UDO [Unified Development Code] that you aren’t really proposing,” said Jennifer Huff with SAVE Highlands. “It was given to you by the town and that’s backwards. The town isn’t supposed to give you what you are supposed to vote on. You are supposed to come up with a document that you think is right for the town. We are asking the Planning Board to number one, think for yourselves, not what the town is telling you to do,” said Huff. “We are asking to get rid of intensification, registration, amortization and to give people their grandfathered rights that they are due by law.”

Both town versions categorize STRs as nonconforming uses.

The first ordinance is basically the ordinance the board erroneously passed in May that prohibits new STRs in the R1 and R2 districts but allows grandfathering with proper verification/permitting, etc. 

The second ordinance allows new and grandfathered STRs in R1 and R2 with no verification or permitting required for a finite period of time, to be determined by the Town Board, at which time the previously allowed nonconforming use is amortized and ceases forever.

Obviously both sides – those against STRs, represented by Highlands Neighborhood Coalition and those for STRs represented by SAVE Highlands – want different ordinances.

Speakers against STRs all said they wanted the Planning Board to recommend the second ordinance because it will end STRs once and for all presumably in a year or two. The town’s new lawyer, Bob Hagemann of Poyner and Spruill suggested two years. He told the Town Board the amortized version – as it stands – would most certainly end up in court.

Those against STRs stand by the claim that STRs are a commercial use, they destroy quality of life, diminish property values in single-family neighborhoods and jeopardize the future of Highlands.

Speakers for STRs would like to use the first ordinance as a starting place for negotiations and compromise and said they have offered to sit down at the table since last August but have been ignored at every turn with Mayor Pat Taylor even saying they have never offered any compromise.

However, last week, Highlands Newspaper verified that a compromise was offered by SAVE Highlands the first week of March right after the Feb. 24 public hearing of the Planning Board’s January ordinance.

According to Huff, on March 3, a registered document of a red-lined version of the Planning Board’s ordinance was sent to then attorneys Jay Coward and Craig Justus.

She said it showed line-by-line what SAVE Highlands agreed with and what it thought was problematic. 

For whatever reason, that “compromise” was never sent on to the mayor, Town Board or staff. And with no communication forthcoming from the town, SAVE Highlands assumed it had been shut out.

“We now know that one of two things have happened. Either the town isn’t telling the truth when they say they didn’t receive that document, or the two paid attorneys who are paid with taxpayers’ money, didn’t pass it on. Either way that’s a big problem,” said Huff.

On Monday, July 17, Huff sent that same March 3 document – this time by email – to the Town Board, staff, the Planning Board and the press, and according to the mayor and the commissioners, that’s the first time they saw it.

Of course, at this point that particular compromise is moot, because the Town Board disregarded the Planning Board’s attempt at an ordinance and formulated its own version. 

Meanwhile, with seeds of mistrust sewn, SAVE Highlands sent then attorneys Coward and Justus a Request for Public Records on Friday, June 15. According to David Bee of Highlands Vacation Rentals and a member of SAVE Highlands, on Monday, June 18, Attorney Coward responded via email that he had received it saying, “we will process this.”

However, on Thursday, June 21 Town Manger Josh Ward read about the Request for Public Records in Highlands Newspaper and asked what it was about. He had not received the request by then, but has received it since and he, staff and other commissioners have supplied at least some of the required information. 

Town Clerk Gibby Shaheen said she has been sending it on to the town attorneys as she gets it. It’s unknown if the information has been forwarded to the SAVE Highlands attorneys at this time.

Monday night, the Planning Board voted to request legal counsel before considering either of the town’s proposals and set another meeting for Tuesday, Aug. 2 at the Community Building at 5:30. If the space isn’t available, the meeting will be in the Civic Center.

Planning Director Mathis said he doesn’t know if legal counsel will comply with the request.

By Kim Lewicki, Highlands Newspaper 

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