BOCC: Short Term Rental Wars!

County Attorney Rips Poor Hedberg

by George Gramlich,
News and Notations

A  FOUR HOUR and FIFTY-FOUR minute long Custer County Board of County Commissioners meeting! One musketeer talked more than all the other human beings in that room combined. Who could that possibly be?The Custer County Board of County Commissioners, November 17, 2021, meeting commenced at 9 a.m. and ended almost five hours later.

The only real substantive agenda items were two short term rental denial appeals from the Planning Commission. So where did all the time go? You will see.All three commissioners were present in the county’s beautiful gilded courtroom: Chair Bill Canda and members Tom Flower and Kevin Day. (The Board moved the meeting to the court room to accommodate an anticipated increase in attendance because of the short term rental (STR) cases.)

The meeting started with the usual review of what the commissioners have done since their last meeting. Tom Flower  proceeded with a 20-minute talk of meeting minutia.

County Attorney Clint Smith was next up after the Flower  diatribe. Clint said he attended a meeting of the Colorado Ethics Commission concerning the ethics complaint that the editor and owner of the local Wet Mountain Tribune “newspaper”, Jordy Hedberg filed last year against the Public Health Agency head, Dr. Clifford Brown. (Hedberg alleges that Brown used a fake public health master’s degree academic record from an alleged “fake” online university to get the Public Health Agency job. Repeatedly we’ve heard from the commissioners and county counsel that the degree itself was just a line item on Brown’s extensive resume and that degree never came up in the hiring decision.)

Clint reviews the allegation and says that the statute in question concerns “forged academic records” and that Brown never gave the commissioners his diploma or academic record and since this never came up in the hiring process Hedberg’s claims are totally bogus and a waste of everybody’s time. Clint also said that the hiring decision was done in two private executive sessions, that Hedberg said Brown produced forged academic records at one or both to these, but Hedberg never asked for the recordings, so how could he even make these allegations?

According to Clint, at the Ethics meeting, as Hedberg was getting eviscerated, he now alleges that Brown is not a “doctor”, that he is only an eye doctor, and therefore shouldn’t be called a “doctor”. (Eyes rolling in the court room.) Clint beats on the complaint for a bit more and finishes with “I want to report our side accurately. ”

After a couple  of minor things, New Business started with the appeals of two STR applications that were recommended to be denied by the Planning Commission (PC) . (Note that the PC does not accept or deny these applications. They simply send a recommendation to the muskies so that this is, technically, not really an “appeal” of a yes or no but an “appeal” of a recommendation.)First up was RJ Investments. The owners of this STR LLC, Mr. and Mrs. Carter, were present. They explain that they have been renting the STR for 21 months and there have been no complaints from the neighbors to the Sheriff’s Office or the Planning & Zoning Commission (P&Z) during that whole time. (When the Carters applied to P&Z after the STR Resolution was passed, several neighbors made complaints to the Planning Commission who were processing the application.) The Carters say the majority of their rentals are regular married couples and they are very careful of who they rent to. They said the close complaining neighbor is a quarter mile away and that the closest neighbor is fine with the STR. They said that the complaints to the PC were false.

Kevin Day asks PC Chair Vic Barnes, who is in the courtroom, were there any complaints against the Carters? Vic says the only one he knew of was from Jackie Hobby, head of P&Z, and that was the Carters were using the bunkhouse on the property as part of the rental and that is a huge Zoning Resolution (ZR) no-no. The Carters respond that they had only rented the bunkhouse twice and they were unaware that bunkhouses were not allowed. (They should be, though. It is in the ZR.) They said as soon as they found out they stopped it. (Fair enough.) Finally, bursting at the seams with raw dramatic angst, Commissioner Flower asks Vic why the PC recommends that  the BOCC deny the application? Vic tries to explain and focuses in on the fact that the STR was using a bunkhouse as a rental, a ZR violation, and you supposedly can’t get a permit if you have a ZR violation.

Flower starts reading the transcript of the Carter’s hearing. On and on. Asks a question. Then more transcript. Then some lawyer-like analysis. Then more transcript. More  questions. More transcript. Then a speech on how difficult this whole process is. Then more transcript. Then he tries to dissect in excruciating detail, the actual motion that was passed at the PC meeting to recommend denial. This goes on FOREVER. More transcript. Flower says, “I am confused on what actually was voted on?”Finally, as the time just rolls by in Happy Valley, Day says he is looking at “past performance” and were there any complaints? Clint then talks about how the PC only makes recommendations to the BOCC. Flower repeats what he just said, yells about the bunkhouse issue, telling us all how this is difficult for him, and just goes on and on and on. And on.Finally, Canda seems to have had enough and somehow gets the vote to approve on the floor. All three commissioners vote to approve. However, Flower still isn’t done and regales  us with more opinion for a few more minutes.

The next STR  is a doozy. This property is owned by a Dr. Ned Urbiztondo.  (His last name is hard to pronounce and so we will just call him Dr. Ned as everybody else at the meeting did.) Dr. Ned’s attorney who we will just call the “attorney” says the PC denied the application under a “general safety and welfare” umbrella and this is a broad thing and could be abused. He said the property is in a subdivision and the road is private. He said the complaints weren’t valid and if there are any problems, Dr. Ned will fix them.  (Basically, just lawyer whining.) Then on Zoom, Dr. Ned appears and says “I will meet any concerns going forward” and that he is real busy and between surgeries.

Then a nice woman from the subdivision in question (Taylor Creek Highlands) asks to be recognized in the courtroom. She said days after Dr. Ned closed on the property, he was advertising on the internet on two big STR sites that they were open and could handle a large number of people. She said they are subdivision covenants but they are not an HOA. One covenant is that no commercial operations can be run in the subdivision and this violates that. She said the renters are riding their ATV’s up and down the road and it is a nuisance and that they are also trespassing on people’s property. Apparently they have this on camera. This lady then knocks Deb Adams who had previously said the neighbors’ complaints were on “speculation” and that Deb, who is the chair of the county’s Tourism Board, is only interested in getting more lodging tax for the county.

Next, another neighbor, Ann Roby, says we are not opposed to all STR’s, only to illegal ones, and Dr. Ned started his AFTER the STR Resolution was passes and thus it is totally an illegal operation. (True.)  Another neighbor stands up and complains. Then another neighbor complains about the traffic, the noise and the trespassing. And then another neighbor.

Then Deb Adams, who is in the courtroom speaks and defends Dr. Ned and all STRs. She tries to defend Dr. Ned’s starting an STR without having a permit and states that it is not fair to deny the application based on the neighbors’ complaints. She dances around the fact that Dr. Ned is probably violating the subdivision’s covenants. What’s wrong with having a party? Does it really upset your peace of life?

One Paul Young announces himself and says that he is Dr. Ned’s new property manager and all will be good and right going forward.

The attorney then says Dr. Ned didn’t know about any grace period or STR stuff and that Dr. Ned stopped renting as soon as he knew. (Apparently this is not true. See below.) He argues that Dr. Ned is a good guy, etc.Vic Barnes (PC Chair) then speaks again: He said we need to follow the resolutions that were passed on March 20th and one is that you can’t advertise for more people than your septic permit allows and that Dr. Ned did this on the internet. Vic also says that Dr. Ned closed on the property on August 16, 2021, and immediately started advertising and renting the place in direct violation of the county’s STR regulations (that you can’t do an STR without a permit and he did not have a permit). Vic Barnes strongly said that Dr. Ned has TWO clear zoning violations and that the application should be denied.

The attorney and Dr. Ned said that Ned stopped the rentals as soon as he found out about the mysterious STR regulations and a neighbor says that is not true they still rented it. Vic says we shouldn’t even be here right now as the application should be terminated due to the ZR regs. Deb is then confused about the difference between an actual permit and an application. The attorney then says some superficial lawyer talk gobbledygook.

Day reads some STR Resolution wording and says this is a new application and you can’t start an STR until the application is approved. Deb then challenges that poor Dr. Ned didn’t know about the STR rules and maybe the county is at fault for not telling him. (Seriously? He bought a house solely to be uses as an STR and didn’t go to the county to find out if there were any STR rules?) Ned’s attorney then says maybe the BOCC have too much discretion in these decisions and mentions the sacred words, “arbitrary and capricious”.

Day says you need a permit and that is that.Finally, Canda makes a motion to deny the application.

Then Flower goes on a schpeil that lasts about an hour. (condensed greatly here as Flower “struggles” with this.) He starts with his opinions, Then, he knows a lot of people in that subdivision, but won’t recuse myself. He says this has been mishandled from the beginning starting with Jackie Hobby (who is not there to defend herself).
He says there needs to be a clear reason why this gentleman should be denied. (Two clear ZR violations aren’t enough?) He then gets into the covenant issue and lectures the whole courtroom on covenants for a long time. On and on, stumbling occasionally in his speeches.

Everybody gets into it now. Day, the neighbors, the attorney, and Flower. Flower then gets into the appeals process and whether the BOCC’s decision can be appealed to the Board of Zoning Adjustment (BZA). (This was brought up at the last meeting.) He reads a section from the ZR that says “board” decisions (like the Planning Commission) can be appealed to the BZA and maybe “board” also means the BOCC and thus, Dr. Ned, could appeal the BOCC’s denial to the BZA. (The BZA is appointed by the BOCC. They are not elected. The BOCC is the FINAL say on things here. The word “board” in the ZR does not include the BOCC.) County lawyer Clint Smith jumps in and clarifies that the BOCC are the decision makers and the “board”  refers  to all the boards and administrative agencies the BOCC appoints.

This sets off Flower again with him at one point attacking Canda concerning the appeals process. A  lady accuses Flower and the rest of the commissioners of attempting to “rubber stamp” the application which sends Flower into a rage of indignancy. This goes on for at least another half hour!

Finally, Canda gets a motion to approve the application on the floor for a vote. He asks Flower to vote first and he say I’ll vote last. Day votes no. Canda votes no. Flower votes yes. So the STR application is denied.

Flower then spends the next ten minutes telling us how in “his heart” this is difficult and the whole process is an abomination. (He voted for the process.) More angst. He goes over AGAIN a lot of the testimony and finally says, his vote doesn’t come “lightly”.

Case closed.

There then was 20 tedious minutes on how the messages on our two portable street message machines should be determined and controlled.

And the last bit was okaying the Road & Bridge Supervisor’s job description so they can start advertising for the coming opening.
(At the last meeting, Flower had proposed changes that would allow someone not familiar with the road maintenance equipment to be the supervisor, essentially turning the position into a desk job. This was apparently panned out in a workshop.) We’ll look into the final description and see how it turned out and get back to you.)  The commissioners passed the revised wording.