John Scarffe, Nederland.   The Nederland Board of Trustees learned about existing Town codes for Auxiliary Dwelling Units and Short-Term Rentals during a presentation and discussion at a regular meeting on Tuesday, September 18, 2018, at 7 p.m., in the Nederland Community Center. Town Administrator Karen Gerrity said that staff was directed to research what is already in the Town’s code regarding Auxiliary Dwelling Units (ADUs) and Short-Term Rentals (STRs) as well as enforcement.

The Board of Trustees met with the Planning Commission in a joint work session on August 22, 2018, to discuss STRs and ADUs, according to background. Based on the conversation, staff was given direction to research the current language in Nederland Municipal Code and provide a report of findings to the Board of Trustees. Staff was also directed to research enforcement processes and costs and to provide an example of a lodging tax ordinance.

The Planning Commission continued a hearing to consider a draft ordinance for a Short-Term Rental Licensing Program on June 27, 2018. The Commission voted to send a revised draft ordinance to the Board of Trustees for consideration.

The Trustees considered the draft ordinance as a discussion item at their July 17, 2018, meeting. After public comment and a discussion, the Board decided to continue the discussion in a work session on August 7, 2018 and directed staff to schedule a joint meeting with the Planning Commission to discuss STRs and revisit Ordinance 785 permitting ADUs, which was adopted on May 17, 2018.

Mayor Kristopher Larsen said that during the joint meeting with the Planning Commission, they discussed a lodging tax to put on the ballot in April. It would be something the Board can work on to pull together an ordinance for the April ballot.

There was strong agreement on that issue, Larsen said. The second piece is the editing of code and definition changes. The third piece is what we should be doing with currently operating STRs.

Community Development Staff Member Cynthia Bakke put together a Power Point presentation about current codes. It can be located on the Town’s Civic Website under the agenda for the September 18 meeting. It also includes a document with suggested edits to current codes, which was not presented at the meeting.

The code hasn’t been changed since 1999, so it’s a good time to do this, Bakke said. The current application process for a rental license includes a $75 fee and an inspection every five years. Larsen pointed out that, as it is currently written, the code doesn’t differentiate between long-term and short-term rentals.

Bakke read current enforcement regulations for the rental license. Each landlord suspected of failing to obtain or renew a rental license will be given a written notice 10 days prior to the issuance of a summons and complaint. If the Zoning Administrator verifies that the suspected violation is corrected, a complaint will not be issued. The town clerk or the zoning administrator shall give such written notice.

Except in cases where a different punishment is prescribed by any ordinance of the Town or this code, anyone who violates provisions of the ordinances of the Town or of this code shall be punished by a fine of not more than $1,000 or imprisonment not to exceed 180 days. In addition, such person shall pay all court costs imposed by the court.

“That’s pretty intense. I don’t think you’ve enforced it,” Bakke said.

Under occupation prohibition codes, if you were to define the room as a Bed and Breakfast, you couldn’t do it, but another section allows you to rent out a room for up to five people. Larsen pointed out that a traditional Air B&B would be allowed to rent out one room.

Codes for Particulars for Rooming Units require you to have a license.

Gerrity said this is why staff wants to have an ordinance all in one place that spells it all out. “We can create an ordinance that includes short-term rentals and then revise the code.” Bakke said currently the codes have nothing on short-term rentals.

Rooming unit codes do fit short-term rentals very well. They require 30 days or less and can’t provide for cooking. Current Boarding House codes fit STRs, Bakke said. The Town has definitions pertaining to dwelling units.

Larsen said that multi-family units require special review.

“Dwelling, multi-unit or multifamily means a building used by two or more families living independently of each other in separate dwelling units, but does not include hotels, motels or resorts,” according to the presentation. “Dwelling, single-family means a detached principal building other than a mobile home designed for or used as a dwelling exclusively by one family as an independent living unit.

“Dwelling unit means one or more rooms with internal connections including bathroom and kitchen facilities designed, occupied or intended for occupancy as separate quarters for the exclusive use of a single family for living, cooking and sanitary purposes,” states the code.

Following the presentation, Larsen asked to go back to the List of Rental Candidates slide, which lists the eight primary residences with the potential to rent. 1) Primary Resident Landlords-Short-term rentals-in-house; 2) Primary Resident Landlords-Short-term rentals-detached; 3) Primary Resident with ADUs-in-house; 4) Primary Resident with ADUs-detached unit; 5) Seasonal Residents who rent out house part of the year; 6) Primary Residents who rent out whole house when they are absent; 7)Long-term rentals with Absentee Landlords who rent out whole house year-round; 8) Short-term rentals with Absentee Landlords who rent out whole house year-around.

“What I would like to see come out of this is essentially to allow the top four [of the above] in town to support B&B in current use,” Larsen said. “The two next ones, seasonal residents, I would like to do, but it requires more code work to limit the amount.”

It’s a limited rental usage with a time cap, Larsen said. Then the last two are the ones we don’t want, Larsen said. He wants to see an STR ordinance that allows the first six and an ADU code and continue to ban the last two because they are already illegal.

If it’s not their primary residence, they can rent it for up to 30 days total whether or not it’s consecutive, Larsen said. He is not worried about seasonal residents, or a long-term rental.

“That’s what I keep wanting to see and see the code base modified. Bring it forward so it would be something this Board could vote on.”

Trustee Jonathon Baumhover said he has concerns about a 30-day limit but would think in terms of three months. “You’re limiting housing stock and ensuring when those folks pass the house down to the kids, we have empty houses in town. Maybe we don’t want to limit people.”

Baumhover advocated working on definitions and has concerns about enforcement issues. “We’re talking about codes that aren’t being enforced.

If we’re not going to enforce ordinances, let’s completely do away with them. It makes the town look like a joke.”

Consider our population and stop looking at it from a government point of view, Baumhover said. It’s going to continue the way it has the last 20 years.

We need to build that into the process. You’re not going to get proper enforcement because Safebuilt doesn’t know the codes half the time and they defer to Boulder County, so you have to sit here and argue with them, Baumhover said.

We will waste our time writing this code and then pay an outside company to enforce it when our Board of Trustees and staff can’t even wrap their heads around it. We’re setting ourselves up to fail, Baumhover said.

Gerrity said that Safebuilt is excellent and has educated her and Cynthia on codes. “Right now, between the Marshal, Safebuilt and me, we are doing pretty well. If there is something going on, can you let me know?”

Gerrity was instructed not to enforce short-term rentals.

Mayor Pro-Tem Julie Gustafson said that allowing the four categories without limitation could become a problem. “What do I want Nederland to look like and how do we plan for the future in this time of unprecedented growth in Colorado?

“We have to protect zoning in the town. If we allow these unenforced regulations regarding short-term rentals even with those four categories, if we allow those to grow unchecked it will be much more difficult for the next Board to reign that back in,” she said.

Gustafson said she is concerned to think the Board would just say yes because of challenges down the road with affordable housing in the community.

“How do we incentivize long-term over short-term?” Gustafson asked. She is concerned about enforceability, but long-term vision is protecting affordable housing, and to do that, they need to create barriers for short-term rentals and incentivize long-term rentals, even with those top four categories.

If the town goes with 30 days or fewer for short-term rentals, it is limiting the amount of time for short-term rentals and creating a nine-month rental. “For the community in the long run, I think that’s how we move forward, and I am fine with removing the bottom two.”

Trustee Kristen Conrad said she is in alignment with the mayor and Baumhover to simplify the terms and definitions. “No one even gets on the web and searches for boarding houses,” she said.

Define short-term and long-term, Conrad said. “I’m perfectly fine with what you and Johnathon proposed, but think it’s too complicated to say how many days. Make it simple. Let people understand what they’re supposed to do and make them get a license.”

Enforcing the first two would go a long way, Conrad said. Just put it under short-term rentals and long-term rentals, just two categories.

“I would like all language concerning cooking and kitchens removed from all zoning,” Conrad said. “We don’t want to encourage the building of any dwelling units that couldn’t be used for long-term. As soon as you say no kitchens, people change their minds.

“We do not want to encourage anything that can’t be used as a long-term rental, so this language is unnecessary. They come in as tiny homes or modular units and they can’t customize that. No one is going to put an investment in it without a kitchen. I’d rather see it go away.”

This reads as very classist, Conrad said. If you can’t come to this town and then spend money for three meals a day, then you can’t come here. It’s unenforceable. I saw they touched some bagels. They must have a kitchen unit. Simplify it and let people find it easily. She also doesn’t like the final two.

Gustafson asked why the Board is making this about only short-term rentals instead of making it about long-term rentals. If every neighborhood decided to add long-term rentals, we’re looking at problems.

Larsen asked if the staff has an idea on the next take on this and suggested having this come back to the Board with three options, once more as a discussion item, which would include a draft of modifications to the ADU and an STR ordinance, including the density and looking to move to action a few weeks after.

(Originally published in the September 27, 2018, print edition of The Mountain-Ear.)