Following the planning board sending a document of recommendations about short-term rentals to the Highlands Town Board of Commissioners, the board held a special called meeting to go over the recommendations, ending with the town’s attorney suggesting to schedule a public hearing before going any further.
The meeting began with planning director Michael Mathis reading the recommendations from approved by the planning board, as well as recommendations from the town staff.
“After the planning board’s meeting, staff from the Planning and Development Department discussed different options that would help clarify some of the confusion within the draft ordinance,” Mathis said. “During their previous meetings, the planning board became confused with the terms ‘Whole House Short Term Rental,’ (STRs between seven and 30 days) and Transient Dwelling Lodging, (STRs of less than seven days.) We recommend that the term Transient Dwelling Lodging be removed from the proposed ordinance, and the term Whole House Short Term Rental be changed to describe STRs of 30 days or less. Then the board could elect to place a minimum length of stay in the notes section based on the underlying zoning district.”
Mathis went on with the staff’s recommendation addressing on-site advertisement of all short-term rentals.
“Currently, our ordinance allows people to place ‘One temporary on-premise sign advertising the rent, sale or lease of a commercial or residential property…’ Staff believe STR owners are exploiting this ordinance by placing an on-site sign advertising their rental,” Mathis said. “Because of the endless turnover with STRs, these signs are essentially permanent.”
Regarding Tourist Homes, Mathis said the staff noticed a contradiction in the language about having an operator or manager on the same parcel or the home.
“The definition on page one states that the owner, operator or manager also stays on the same parcel during any period of guest occupancy,” Mathis said. “However, on page four, it states that the home shall be occupied by either the owner, operator or manager of the property during the periods when paying guests are also occupying the home.”
The board then turned to changes in the definitions of the UDO. Commissioner Marc Hehn started off the conversation by stating that the definition of an accessory dwelling unit is not clear.
“Different planners over the last five years have had different interpretations of what is an accessory,” Hehn said. “In one interpretation, you couldn’t have a stove. I just don’t think we have a definition for accessory dwelling unit. I know the comprehensive plan recommends that we look at that and allow it.”
The town’s hired attorney Craig Justice referenced Section 6.3.3 of the draft plan, Customary Accessory Outbuildings, which states, “Appurtenant to single-family dwellings such as private garages, noncommercial buildings such as greenhouses and workshops. No residential or lodging use of any kind is allowed.”
“That came out of the subcommittee, and the planning board has affirmed that as a recommendation because it has not been altered,” Justice said. “The recommendation from the subcommittee and the planning board is that if the building is a detached structure, then it is not supposed to be occupied as a residence or for lodging purposes. If that is something that needs to be addressed and changed then that is something that you need to flesh out in this process.”
Commissioner Amy Patterson brought up the planning board’s decision to strike the maximum number of weeks for a whole house short term rental in the R-1 and R-2 district.
“The planning board decided to strike the 25-week maximum for an owner to rent out their lot per calendar year and their reasoning was because they added the ‘shall not be rented for a period less than 14 consecutive days,’” Patterson said. “You could do a two-week minimum for 52 weeks a year. Whereas, this is maximum, 25 weeks a year you could have occupancy. Their reasoning doesn’t hold up. If you rent it for two weeks 25 times, that is 52 weeks. The incidental use means the maximum number of times it can be rented can be 52 weeks. It’s not the same thing.”
Regarding the same section of the draft plan, Patterson said she is concerned about the language “shall not be rented for a period of less than 14 consecutive days,” because of the turnover of renters.
“The turnover it could create is what I’m worried about,” Patterson said.
Commissioner Jon Dotson agreed, stating that this scenario would not be subletting.
“You could have 14 different occupants in 14 days,” Dotson said.
Moving on to the violation part of the draft plan, Doston said the owner of the property needs to be the one held responsible.
“We have no teeth against an operator or a manager,” Dotson said. “We can’t penalize a rental agency because the operator of the property didn’t make the agency aware of the fact.”
Patterson questioned how the town would be able to verify if the complaint was in fact a legit complaint. Justice said if there was a violation found that they would document that in writing and tell them.
“It ultimately would have to go to a code enforcement officer to determine if there was in fact a violation,” Justice said.
Towards the end of the meeting, Patterson brought up the vested rights issue.
“I still have a problem with this being a vested right,” Patterson said. “My research says it’s more of a nonconforming use. If they are allowed to continue, it’s more of a nonconforming use as opposed to a vested right. With vested rights, they have to meet three or four types of criteria and I don’t think this is the way to do it.”
Justice said the verbiage is synonymous, telling Patterson to look at Godfrey vs. The Zoning Board of Adjustment of Union County, N.C. from 1986.
The case states that James Dennis Rape came into ownership and possession of a 17.45-acre tract of land in Union County in 1973. The Union County Board of Commissioners adopted a comprehensive zoning ordinance on April 14, 1975, effective June 2, 1975. On the effective date of the ordinance, Rape’s 17.45-acre tract was being farmed; no business other than farming was operated on this tract prior to 1980. The Rape tract and the surrounding area were zoned low density residential, R-20, by the 1975 ordinance.
On Sept. 12, 1980, Rape petitioned the county to rezone his tract from R-20 to H-I, “heavy industrial.” Rape’s purpose in requesting the zone change was to enable him to construct a grain storage facility and office space on a portion of his tract. The Union County Planning Board voted to recommend the rezoning request, and on Nov. 23, 1980, the County Commissioners, by a vote of three to two, voted to amend the zoning ordinance to rezone the tract as requested by Rape.
Disturbed by this action, three adjoining landowners, within three weeks of the rezoning, filed an action in Superior Court, Union County, on Dec. 15, 1980, seeking a declaratory judgment to the effect that the Commissioners’ action in rezoning the Rape tract was null and void because it constituted “spot zoning.”
Meanwhile, Rape, pursuant to a “previous arrangement” with Gro-More of Monroe, Inc., obtained a building permit to construct the grain storage facility and began construction of the facility. Gro-More’s majority shareholder is Eastern Plant Foods, Inc., of Greenville, South Carolina; Rape was president and minority shareholder of Gro-More. In May 1981, construction was completed, and pursuant to the arrangement with Gro-More, Rape transferred 4.25 acres of his 17.45-acre tract containing the grain storage facility and office space to Gro-More. Subsequent to the facility being completed and its transfer to Gro-More, and during the pendency of the action for declaratory judgment, the Union County Board of Commissioners on 25 August 1981 amended the zoning ordinance to make provision for “Nonconforming Situations.”
In the end, the Supreme Court concluded that a structure not in existence on the effective date of a zoning amendment does not constitute a nonconforming use, and adopted the view of the Pennsylvania Supreme Court, which said that “[b]efore a supposed nonconforming use may be protected, it must exist somewhere outside the property owner’s mind.”
“These are very similar terms,” Justice said. “Nonconforming is typically a local government term, vesting is a court term, but they are synonymous. In laymen’s terms, nonconforming use is the grandfathered use of property as it was lawfully existing prior to the time that an ordinance has come into place that otherwise would have restricted it. Once you have that status, then there are certain things that the government can do to discourage its promotion.”
Patterson said she did not agree with the terms being synonymous.
Commissioner Steihler said some of the commissioners have expressed concern about the topic of vesting.
“I think we owe it to our constituents to get another opinion on that,” Stiehler said.
Hehn made a motion at the end of the meeting to schedule a public hearing on the recommendations from the planning board set for Feb. 24 at 5 p.m.
The motion passed unanimously.
“I think this workshop was a good opportunity if there were some major kinks in the planning board’s recommendation, because it would make sense to ask for clarification tonight,” Justice said. “That way the public can hear your thoughts and it might help them in drafting questions. But if you are past that and don’t have any major things, then I would call for a public hearing.”
In closed session attorneys Craig Justice 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.
- By Christopher Lugo