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“It’s up to you on the different circumstances of each application.� – County Attorney Blair Mitchell to the Board of Supervisors on decisions on shortterm rental permitting applications

Early August, 2014 • Warren & Frederick County Report • Page 13

Warren County

Where will the short-term rental denial dominoes lead? By Roger Bianchini Warren County Report

The dominoes from the property rights battle between Tareq Salahi and, not only Mosby Overlook Estates neighbors, but the Warren County Board of Supervisors, continue to fall. And they appear to be falling on several other homeowners in various county neighborhoods desiring to utilize their properties for short-term rental use as a means of income. On July 15, the county supervisors unanimously denied two applica-


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tions for conditional use permits for short-term rental use of homes, one in Skyland Estates and one in Apple Mountain Lake. A vote on the Skyland Estates application of Todd and Brenda Peal on Khyber Pass Road had been delayed from late June as the supervisors sought additional input from county legal staff on the implications of a vote. It seemed apparent the “implications� at issue were regarding the board’s earlier denial of Salahi’s CUP application for his Mosby Overlook Estates property and Salahi’s legal challenge of that decision. At the outset of the discussion, Shenandoah District Supervisor Richard Traczyk expressed some concern about “how we are going about this� and that the board’s process might be viewed as “arbitrary and capricious�. And concerns about arbitrary and

capricious decisions relates directly to Salahi’s contention that was the nature of the board’s 4-1 vote to deny his Conditional Use Application that had been unanimously recommended for approval by the county planning commission. In addition to challenging the legality of county codes cited in the board’s denial, Salahi’s complaint states, â€œâ€Ś the actions of the Board of Supervisors in denying the Conditional Use Permit were discriminatory, arbitrary and capricious, and bore no substantial relationship to the public health, safety, or welfare.â€? Of interest, not only to Salahi, but perhaps Todd and Brenda Peal and Jon and Susan Fuller, whose CUP applications were denied on July 15, the Salahi lawsuit also contends, “The enabling statutes of the code of Virginia do not expressly, or by neces-

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sary implication, allow a government to restrict the amount of time for which a parcel of real property can be leased.â€? However on July 15, after his initial note of caution, Traczyk added of decisions on short-term rentals in residential neighborhoods, “I think it is a reasonable expectation if you move next door, your neighbor’s not going to turn his home into a motel ‌ we have to give these things equal weight.â€? Happy Creek Supervisor Tony Carter, in whose district several of the recent short-term rental applications have come from, noted that while seven to nine such short-term rentals already legally operate in the county, that variables specific to each neighborhood had to be taken into consideration. Those include road conditions, proximity and the type of neighborhood. He also mentioned the potential of fires being caused in rural neighborhoods due to careless use of outdoor grills or renters feeding wildlife, unaware of codes against such things due to potential negative consequences on neighbors, perhaps not apparent to “city folkâ€?. Asked for a legal opinion, County Attorney Blair Mitchell said there was “a mixed bag of variablesâ€? including the length of short-term rentals, as well as specific issues such as cited by Traczyk and Carter. Mitchell noted that stretching back to the middle of the last century weekend rentals of homes in rural, mountainous areas like High Knob and Mosby Overlook Estates were commonplace for property owners who built what were essentially designed to be weekend or summer retreats. However, as the county evolved zon-

ing and population-wise, longer-term rentals to transient workers such as attracted by the Dominion Power construction project had become more prevalent as short-term rental uses in the county. And once remote, sparsely-built neighborhoods had grown into fullblown year-round residential communities due to changing county zoning and population trends – and two of those neighborhoods, High Knob and Mosby Overlook Estates, became “gated communities� requiring security codes for auto access. “It sort of destroys the purpose of a gated community,� Mitchell said of short-term rentals, particularly those designed to attract weekend partiers. “It’s up to you on the different circumstances of each application,� Mitchell told the supervisors elected to make such decisions on zoning, living and business codes impacting the lifestyle of county residents. Consequently, the board first denied the “old business� of the Peal application by a unanimous vote; then voted to send the application back to the planning commission, possibly due to questions about the county’s ability to retroactively collect transient lodging tax for such operations that have been in existence for some time without proper permitting. Both the Peal and Salahi homes had been used for short-term rentals from time periods county staff estimated at one to two years prior to coming to the county for permitting the owners apparently did not know was required. Then the board unanimously denied the Fuller short-term rental application, also by a unanimous vote.

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Early August 2014 Warren and Frederick County Report  

Local news for Front Royal, Linden, Bentonville, Browntown, Middletown, Stephens City, Winchester, Warren County and Frederick County, Virgi...