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Despite staff opposition, Board of Adjustment rules on short-term rentals

Tuesday, June 14, 2011 by Elizabeth Pagano

Against the advice of city staff, the Board of Adjustment has reversed its earlier ruling on short-term rentals, defining “transient” property use as a rental that lasts less than 10 days.

The board’s ruling came after a lengthy executive session on Monday night, despite a warning from Jerry Rusthoven of the city’s Planning and Development Review Department, who said a city panel is currently studying the issue with a mandate to report back to the City Council.

In late April, the board rejected appeals by two Allandale residents who argued that city code prohibited short-term rentals of residential properties. This time, only resident Leslie Rosenstein appealed and the board did not shy away from defining the code.

Though the Board of Adjustment was clear in its ruling that its determination applied only to the property located at 6621 Argentia Road, it remains to be seen how such a specific definition of code will not affect other properties.

“We were advised by counsel that common language usage is what should be interpreted, and I believe that as well. Not only because it’s common language usage, it’s just plain common sense,” said Board Member Michael von Ohlen. “I think it’s important that everyone understands that how staff implements this on a citywide basis, that is up to them.”

“This applies to 6621 only,” said von Ohlen.

Earlier, Rusthoven had warned that this would likely not be the case.

“We feel that it is impossible and not wise for the board to determine that a short-term rental is not allowed at this particular address, but that it would be allowed city-wide,” said Rusthoven. “This is a policy issue that should be decided by policy makers such as the Planning Commission, and the City Council, not the Board of Adjustment.”

The city has been looking into short-term rentals independently, with a work session upstairs at the same time as the hearing downstairs.

The work session was the fourth such meeting of the policy group, which was formed to address several issues that have recently arisen around the topic of short-term rentals and their regulation, including potential permitting, best-practices for hotel occupancy taxes, defining time parameters for short-term rentals, as well as defining the word transient.

“We feel that it is a policy decision and that it is being handled, as we speak, upstairs,” said Rusthoven.

The Board of Adjustment evidently disagreed.

“I think the code clearly tells us that you cannot have a transient operation… the code does not define transient anywhere in the code,” said Board Member Bryan King. “I think it is for us to determine what the word transient means.”

When asked by In Fact Daily how the ruling would affect the work the city had already undertaken, Rusthoven said, “Well, specifically they said that a rental at that specific address for less than 10 days violates the code…So we have to figure out if we’re going to apply the same rule to all short-term rentals, or if it’s just this one address. I don’t know yet.”

“I am opposed to the ruling. Strongly opposed,” said Rusthoven

The Board voted 5-1 to approve the ruling, with Chair Leane Heldenfels voting against. Clarke Hammond recused himself because of his work in the City Auditor’s Office.

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