Grand County Council Member Jaylyn Hawks [Moab Sun News file photo]

A proposal of hefty fines for certain land-use violations in the Grand County consolidated fee schedule aims to put some bite behind the county’s bark when it comes to regulating bed-and-breakfasts and other short-term rentals.

While some county officials think it’s about time the county laid down the proverbial law on short-term rentals, others feel that, at least in comparison to other types of violations, the newly proposed fines are heavy-handed. Among the heftiest of the proposed fines are some that would assess $500 per day for violations of county code relative to operating illegal short-term rentals.

“The proposed fees seem to be out of proportion to the violation, in terms of its egregiousness to the surrounding community,” Grand County Council member Jaylyn Hawks said during a council meeting on Tuesday, April 17.

A member of the Grand County Council, Hawks prefaced her comments against the proposed fines by saying she was speaking specifically as a “private citizen,” seemingly to keep from running afoul of the county’s conflict of interest rules.

As the Grand County Council considers the $500 fee schedule change for people who are cited for illegal short-term rentals, other violations — such as the storage of junk and debris, or having too many animals or excessive animal waste on a piece of property — carry fines of $100 or $200. Only violations having to do with industrial or hazardous/flammable waste would carry penalties as stiff as those for short-term–rental violations.

“We’re really not doing ourselves any favors. It doesn’t seem like it’s a $500 violation in comparison with the storage of junk and debris,” Hawks said. “It’s not equitable.”

Sending a message

But Grand County Community and Economic Development Director Zacharia Levine, who presented and explained the fee schedule, said such inequity was purposeful.

“This is a message ordinance,” he said.

That message: Illegal short-term rentals won’t be tolerated.

The Grand County Council has wrestled for some time regarding the proliferation of bed-and-breakfasts (B&Bs) and other overnight or short-term rentals, specifically those that operate without business licenses or otherwise illegally by not conforming to land-use standards or restrictions. Levine said the new fines were developed at the suggestion of the council.

The council may vote on the new fees at its regular meeting on Tuesday, May 1.

“We tried to set these [fees] based on what we felt were the council’s priorities,” Levine said. “I think that’s what we wanted to reflect from this body, was to send a message,” Levine said.

Grand County Council Member Curtis Wells concurred.

“I’m supportive of fees with teeth, and sending that message, because we’re just getting walked on,” Wells said.

Hawks had difficulty seeing how that problem was worse than others that presented hazards to health and safety.

“Is it more egregious, usually, to have junk and debris, or to have a bed-and-breakfast?” she asked.

Punishing short-term rentals?

The council considered a common perception that short-term rentals and B&Bs are generally unpopular with members of the local community. One council member jokingly posited that a poll could be taken to discern public sentiment.

Hawks argued, “I don’t agree that everybody wants to punish bed and breakfasts and overnight rentals.”

Not everybody, but some residents in Moab told the Moab Sun News that short-term rentals do negatively affect the local economy.

Two Moab residents explained that when people decide to rent local housing as only short-term rentals, it decreases the availability of permanent, long-term housing options for residents employed in the area. A second concern shared by Moab residents is that short-term rentals also decrease employment opportunities for locals because when people stay at short-term rentals, they aren’t staying in the hotels.

“I’m totally against [short-term rentals],” Moab resident Joey Carmona said.

Carmona is a former resident of Summit County, Colorado, where he said short-term rentals were a problem, as well.

Carmona said visitors and tourists are important for the local economy, but said residents of small towns like Moab are “the people who make this place turn, in a sense, too. We’re the people that fill these jobs, and if we don’t have a place to sleep, or if it keeps getting more and more expensive for us, then where are we going to live? Why make it harder for us to live out here?”

Amy Harburg, a Moab resident from tourism-heavy Mammoth Lakes, California, echoed Carmona. “The biggest thing in a tourist town like [Moab] is that the people who live here year-round are the most important kind of people you can have, and if you’re not supporting people like that, you’re not going to have a town that’s sustainable, and that’s a really big problem.”

Enforcing compliance

Based on a report of land-use code violations so far this year, short-term rentals are one of the county’s biggest code-enforcement problems — at least by the numbers.

Earlier during the April 17 meeting, Grand County Community and Economic Development Specialist Kaitlin Myers, who works in Levine’s office, presented a report on code enforcement since the beginning of the year.

The majority of land-use code violations come from short-term rentals. The remaining few come from illegal camping or recreational vehicles, excess debris and junk, and businesses operating without a license (other than short-term rentals).

Myers said about 20 hours per week had been spent on code enforcement since the middle of March.

Initially there were 300 unconfirmed and non-compliant short-term rental reports. During that time the number of non-compliant short-term rental properties was reduced to less than 100 non-compliant properties, she reported. Most of the short-term rental violations were resolved with business owners filing or renewing their business licenses.

Four thousand dollars have been collected in license fees and $2,100 collected in short-term rental application fees.

As of Myers’ report to the council, 30 short-term rentals had received or were about to receive second notices of violations.

Officials say enforcement of short-term rentals encourages compliance

Fitzgerald: First Amendment right to speech takes precedence

During the Grand County Council’s recent discussion about increasing fines for illegal bed-and-breakfasts and short-term rental businesses, Council Member Jaylyn Hawks said, “I am speaking as a private citizen.”

Hawks gave the disclaimer not once, but close to half a dozen times as she expressed her opposition to the fee proposal on short-term rentals.

Hawks is as an owner of a B&B herself, and would normally be barred from speaking on the issue in her official capacity. She was found to be in violation of the county’s ethics rules earlier this year for speaking on an issue and having a conflict of interest in the matter.

According to Grand County Attorney Andrew Fitzgerald, Hawks was well within her right at the April 17 meeting to speak as a private citizen, as long as she made it clear.

“Her First Amendment right allows her to do that,” Fitzgerald said on Tuesday, April 24. “It’s a pretty strong power that allows her to do that as a public citizen. The trick for her is just to disclose to the public that when she’s speaking, it is as a public citizen. Everything in the law allows her to do that. She just has to be careful as far as her political position that she doesn’t try to influence the vote or the discussion. It’s kind of a tightrope.”

County ordinance requires council members to recuse themselves from any participation in discussion as well as voting on any matter in which they have a conflict of interest.

Speaking as a private citizen is a different matter, the county attorney said.

“The important part is really the disclosure,” he said.

Hawks’ previous conflict-of-interest violation — which she rectified, according to Fitzgerald in statements he made in March — involved the fact that she continued to participate in discussions as a council member, though she did disclose the fact that she was a B&B owner.

At the meeting last week, though speaking as a member of the public, Hawks may have been afforded more leeway than a regular private citizen would have been. For her initial comment, Hawks stepped off the council dais and approached the podium used for people who speak before the council, and there stated her intent to speak “as a citizen of Grand County for the better part of 21 years.”

After her comment, she sat again in her council seat, but then continued to discuss the matter, often reiterating her “private citizen” disclaimer.

Doing so may have blurred a line, but if so, it wasn’t egregious, Fitzgerald said. “It’s very tricky. One could argue that she should have sat in the audience until the discussion was finished; but that seems extreme … I think Jaylyn handled it fine.”

Fitzgerald spoke to the complexity of conflicts of interests, which he said most people tend to view mistakenly as simple and cut-and-dry.

The county’s ordinance does allow council members to speak on issues in which they may have conflicts of interest if a majority vote allows such a suspension of the rule.

“Although it would make sense for them to do that, they’re nervous about the public perception that, ‘Oh, there’s something dirty going on here,’” he said. “They’re good people who don’t want to do wrong, and want to do right by the public.”

“Is it more egregious, usually, to have junk and debris, or to have a bed-and-breakfast?”

– Jaylyn Hawks