Board reaches verbal consensus to enforce current zoning ordinances
After a five-hour long meeting that stretched over two days, the Town of Highlands Board of Commissioners reached a verbal consensus that they would start enforcing current zoning laws that will not allow short term rentals in R-1 Zoning.
Several people had reached out before the first meeting on Thursday, wanting to express their opposition to short term rentals being in R-1 communities.
Carol Gable, a resident that lives in Dog Mountain Road, said that the short-term rental problem in Highlands has gotten worse over the last five to seven years.
“This problem has not come up out of the blue,” Gable said. “It has only gotten worse. We only have 27 houses in the community, and we have three short term rentals. Soon there are going to be three more.”
One problem with the short-term rentals that the Dog Mountain community has is the traffic Gable said the short-term rentals bring in.
“We live on a very narrow road,” Gable said. “It takes time to get acclimated to driving in the mountains. Now, we have a revolving door of strangers that are checking in and out three times a week. Then, you have the maids that come in and clean and the landscape guy.”
The core issue, Gable said, is the fact that the town did not enforce the original ordinance.
“The R-1 code strictly prohibits overnight rentals,” Gable said. “The language is extremely clear. In fact, the only way in R-1 that you can rent overnight is if you do it for 90 or more days. How is it that you do not force the law?”
Gable said another issue is people coming to Highlands with the intention of only buying a house to flip it into a short-term rental.
“Our house is near The Farm, so we are a particularly attractive target because we are close for weddings,” Gable said. “Now, you have a four-bedroom house that markets itself sleeping 12. The issue is that the city says we shouldn’t even have to deal with that, and they aren’t enforcing it.”
In 2012, the Dog Mountain community specifically requested to be included in R-1 zoning and be taxed more so they wouldn’t have to deal with short-term rentals. Gable said they wanted R-1 protection.
“We could see in 2012 how fast Highlands was growing,” Gable said. “We were in the county. So, we petitioned the town, and it was a huge effort. We wanted to be in the town, we pleaded for them to tax us, because we want R-1 protection. If you look at R-1, R-2 and R-3, they all don’t allow overnight rentals, but there are several other zones that do allow it. We are not trying to outlaw short term rentals, that could not be further from the truth.”
During the town hall meeting on Thursday, Aug. 19, public comments from both sides were heard. The public comment section lasted an hour and a half.
Charlie Nalbone, a board member of the Dog Mountain Property Owners Association, started the public comment section.
“You will hear from many of our neighbors about the negative consequences of short-term rentals,” Nalbone said. “Vandalism, noise, garbage, septic system overloads and speeding on our narrow neighborhood streets. All of these are secondary violations because the original violation is that the illegality of short-term rentals is not being addressed. All of these consequences vanish if the town enforces its existing law.”
Nalbone said the communities brought the issue of short-term rentals up to the town staff in 2015, but were told to wait and see.
“Since that time, short term rentals have exploded,” Nalbone said. “They are overwhelming and destroying the quiet enjoyment of our homes. They will ultimately destroy the fabric of our town. The time for waiting and seeing is over. It is time to enforce the existing law. Realtors in town have said that nearly 60 percent of potential buyers are now looking at short term rental properties as an investment.”
Jeannie Chambers with Chambers Realty and Vacation Rentals said most of her renters have been renting for decades.
“We have been doing this for a very long time,” Chambers said. “Most of our renters are here for a week, two or three weeks or even months during the summer. Most of our renters have been renting here for the last decade and have homes here. They are families that like to come to Highlands for the same reason that we like to live in Highlands. I don’t know how to regulate some and not others.”
Leigh Stockton spoke in favor of short-term rentals, but said she understands the concern of others.
“We bought our house with the purpose of retiring in Highlands one day,” Stockton said. “In the meantime, since we are not there as much as we would like to, we rent it out. We have curtailed all parties and put in our instructions that noise should be lowered by 11 p.m., just to be considerate to neighbors. I can understand neighbors having these concerns. With that said, I think there are several things that are important. These short-term rentals do deliver a lot of revenue to the town. Another important thing is that the wedding industry is huge in Highlands. We don’t have enough accommodations and a lot of these short-term rentals provide those accommodations for weddings. If we don’t have enough accommodations for weddings then the wedding business will suffer, as well.”
After hearing public comments, the board went into a closed session that was cut off at 11 p.m. due to ZOOM time limits. The meeting was then recessed until Tuesday afternoon at 3 p.m.
Town attorney, Jay Coward began the meeting by giving a public briefing on the short-term rental situation, reading from the current UDO section 5.2.
Below is Section 5.2.1, 5.2.2 and 5.2.3 of the current UDO regarding residential districts R-1, R-2 and R-3:
5.2.1 R-1 Residential District
The R-1 Residential District is exclusively a low-density residential district for single-family dwellings with customary accessory outbuildings, together with such other related uses which are of a residential character or contribute to the residential character of the district.
5.2.2 R-2 Residential District
The R-2 Residential District is a medium-density residential district for single-family dwellings, with customary accessory outbuildings, including manufactured homes and home occupations, together with such other related uses which are of a residential character or contribute to the residential character of the district. Tourist homes and private schools are permitted as Special Uses.
5.2.3 R-3 Residential District
The R-3 Residential District is a high-density residential district for single-family dwellings, with customary accessory outbuildings, including home occupations, together with such other related uses which are of a residential character or contribute to the residential character of the district. Multi-family dwellings are permitted as a Special Use.
“In my opinion, since it doesn’t say anything about short term rentals, then short term rentals should not be allowed in this district [R-1,]” Coward said. “It would follow, that the town would have the ability to enforce and prohibit any STR’s that are existing in the R-1 district.”
Coward went on to bring up Section 6.2.C of the UDO, which is below:
Single-family Dwellings in the Town shall be permitted in accordance with Sec. 6.2, Use Table, subject to the following standards:
A. Single-family dwelling shall include both single-family detached dwellings on individual lots held in fee-simple and single-family detached condominiums.
B. Modular homes are allowed wherever single-family dwelling detached use is allowed. Modular homes shall expressly exclude manufactured homes.
C. Manufactured homes, as defined by this Ordinance, are allowed as a regulated use for single-family dwelling detached, provided they have been constructed after July 1, 1976. All of the following conditions shall apply:
1. Lot dimensional standards shall be the same as for single-family detached in the applicable district;
2. The unit is occupied by persons owning the land on which the unit is located;
3. The tongue, axles, removable towing apparatus, and transporting lights are removed after final placement on the site;
4. A continuous, permanent masonry curtain wall or foundation, unpierced except for ventilation and covered access, is installed under the unit;
5. The finished width of the base unit is not less than twenty-four (24) feet;
6. The pitch of the roof has a minimum vertical rise of one (1) foot for each four (4) feet of horizontal rise (1:4) and the roof is finished with shingles;
7. The exterior siding consists predominantly of horizontal or vertical vinyl, aluminum, wood, or hardboard siding; and
8. The unit shall exceed forty (40) feet in length
“I think this adds to the interpretation that if the dwelling is not used for the intended purposes, then it is prohibited,” Coward said. “As the ordinance stands right now, you are not allowed to have a short-term dwelling. You are only allowed to have a single-family residence. If you wanted to change that, or sharpen the language in the ordinance, then you would have to pass legislation to do that.”
Commissioner Amy Patterson stated that if there is already an ordinance, then it needs to be enforced.
“I think what we have to say is that we have an ordinance already on the books and we have to enforce it,” Patterson said. “The common reading of it is that there can only be residential properties with no commercial use or short-term rentals.”
Commissioner John Dotson brought up the verbal consensus that the board start instructing the staff to begin enforcing the current ordinance as it is written, which would not allow short term rentals in R-1.
“I would be open to giving folks a timeline to accommodate,” Dotson said. “I think January 3, would give everybody some time to research this.”
The consensus was passed 4-1 with Commissioner Donnie Calloway not agreeing.
Calloway disagreed because he said there is no need to rush.
“I think we are bending to try to make this work,” Calloway said. “Our staff has had issues enforcing this, we have different opinions on this, and I think we just need to take a look at this more. I think it’s time that we get some good input, we let Jay seek council and come back. This doesn’t have to be done today.”
After the meeting, Jerry Moore, a resident of Highlands, did not agree with the board’s consensus.
“My take is that the board is insinuating a lot of what is in the ordinance that is simply not there,” Moore said. “Nowhere in the unified development ordinance does it mention the words short term rental. It is not specifically enumerated anywhere in the UDO. So, I’m not sure how they can point out short term rentals. It talks about commercial activity, but what is commercial activity? Some courts have ruled that someone sleeping in your home and them paying to sleep in the home is not commercial activity. I mean, if I was selling something on E-Bay in the comfort of my home, under their interpretation that would also be illegal.”
Under the former UDO that was changed in 2011, the words “short term rental” were used. Below is section 201.10 of the former UDO:
201.10. Prohibited uses.
Commercial activities shall not be permitted in the R-1 District except as otherwise expressly allowed herein. Activities prohibited by this provision shall include, by way of example and not by way of limitation, the following: the use of short-term rental property or the short-term rental of property for weddings, receptions, or other gatherings of more than 20 persons. `Short-Term’ shall mean, for the purposes of this section only, less than three months.”
Moore noted that in the current UDO, it does not say short term rentals.
“If the town wants to preclude short term rentals in R-1, then they need to adopt an ordinance that specifically addresses that,” Moore said. “I think assuming that it does is wrong.”
Highlands resident David Bee and owner of Highlands Vacation Rentals agrees with Moore and said that the current UDO is not clear.
“We do not believe this ordinance is clear,” Bee said. “We believe that the ordinance’s verbiage clearly does allow short term rentals. It does not allow commercial activity in short term rentals. The state has said multiple times that a short-term rental is not a commercial venture.”
Bee and several other residents are currently discussing how they are going to move forward.
“Several businesses in town did not know this was happening,” Bee said. “We don’t believe the town has done a good enough due diligence to determine what the economic impact will be on workforce, restaurants and businesses in the town. You’re talking about a large number of short-term rentals within the R-1, R-2 and R-3 district. Where are people going to stay for weddings now? Where are the people going to stay that go to the Food and Wine Festival or the Bear Shadow Festival?”
Another factor Bee said is the population of seasonal residence that rent their homes.
“You have a large population of second homeowners that rent out their homes,” Bee said. “The town has not enforced this rule for the past 40 years. So, you have people who have purchased second homes with the intent of vacation renting their homes to pay their taxes and mortgage based on the fact that this was something that was not enforced.”
Within the next four months, Bee said he hopes that there is a different clarification in the verbiage of what R-1 states.
“We have had, apparently, several different R-1 renditions and they pulled this one out as opposed to looking at all of them,” Bee said. “What I hope is that before January 3, we have better clarification of the R-1 district.”
President of the Dog Mountain Property Owners Association Bill Long sent a press release after the meeting, which said they are grateful that the town chose to enforce the current law. Below is his full statement:
“The Dog Mountain Property Owners Association and our residents are gratified that the Town of Highlands has made clear that short-term rentals are a commercial use and, as such, have always been prohibited in the R-1 zoning district. We are very appreciative that the Board of Commissioners have instructed the Town staff to enforce the law. This is simply a matter of fairness to the residents who bought their homes in reliance on the protections of the Town’s zoning ordinance. To be clear, we are not opposed to short-term rentals, but they should be located in our commercial and business districts, just like other overnight accommodations. We understand the Town’s thinking in delaying enforcement so that those who are currently violating the law may bring their conduct into compliance with the law.
The Town of Highlands Community Plan stresses the importance of protecting and preserving our single-family neighborhoods as a vital part of our community. Indeed, they are the foundation of a successful town where there’s a place for everyone. The Board’s decision to enforce the current law will help ensure this protection.”
By Christopher Smith