A couple appeals the denial of a short-term rental permit in Athens for a second time

Posted on:

< < Back to

ATHENS, Ohio (WOUB) — A lawyer representing a Dublin couple who want to operate a short-term rental in Athens did not mince words at a hearing last month.

“It doesn’t matter if the board dislikes short-term rentals. It doesn’t matter if the public dislikes short-term rentals. It doesn’t matter if the board or the public dislikes the idea of having short-term rentals in this city or dislikes the fact that they have to consider applications for short-term rental property permits.”

That was Kara Mundy, who works in the Columbus office of a large law firm, addressing members of the Athens Board of Zoning Appeals.

The board was taking up the couple’s request for a short-term rental permit for a second time.

The first time, in February, the board denied the permit. Board members said they were not comfortable making a decision about this without more guidance from the City Council.

The couple, Lia and Aaron Williams, appealed, and a magistrate said the board’s decision was “arbitrary and unreasonable” and sent it back for reconsideration.

Mundy, in more pointed language, was essentially channeling the magistrate’s decision in her comments to the board at the second hearing.

The board denied the permit for a second time, and last week the Williams filed another appeal in Athens County Court of Common Pleas.

The outside of 269 E. State St. in Athens, a two-story home.
The owners of the home at 269 E. State St. in Athens have twice been denied a special permit that would allow them to operate the home as a short-term rental. [Google Maps]

The couple bought home with plans use it as a short-term rental

At the center of the dispute are two things:

One is the short-term rental ordinance adopted by the City Council in December 2021, and specifically the regulation of these rentals in R-1 zones, which are areas restricted to single-family homes.

The second is the two-story home at 269 East State Street, located in an R-1 zone, that the Williams bought in December 2022. In January they submitted an application for a short-term rental permit.

Under the city’s ordinance, short-term rentals are allowed in R-1 zones provided the homes are owner-occupied, meaning the homeowner is the primary occupant.

But there is an exception: Homes in R-1 zones on certain streets, including East State Street, that are not owner-occupied can be granted a conditional use permit to operate as a short-term rental.

It’s worth noting that this permit is granted to the home itself, not the owners, meaning if the current owners sell the home, the permit remains in place for the new owners.

The Williams didn’t buy the home to live in it. They have a daughter attending Ohio University and wanted a place to stay when they came down for visits. Their plan was to rent it out through Airbnb when not using it.

Athens’ board is uncomfortable making this decision

The Williams are the first to come before the Board of Zoning Appeals seeking a conditional use permit under the ordinance. When the board first took up their request in February, several members expressed misgivings about what they were being asked to do.

The magistrate quoted some of them in his June decision overturning the board, including this exchange:

Lisa Carson (then chair of the board): “It seems to me if we do that, we’re going to get a lot more requests for the same. And that would suggest — I mean, to me, that seems like we are writing code. … But I personally am not comfortable just starting down that particular road without letting council consider whether that is really something they want to do.”

Kelly Sauber: “I think council chose not to do it because a can of worms was going to be opened, and they wanted to pass that off.”

Aaron Thomas: “I will agree with that.”

Sauber: “That’s what I think. I don’t feel comfortable making that decision for council.”

The magistrate said these are not valid reasons to deny a permit, but did acknowledge the board’s frustrations:

“The Court understands that BZA members may desire greater guidance from City Council in making these decisions, and perhaps such guidance will be forthcoming. But in the interim, the BZA must do its best with the existing applicable code sections.”

The couple’s attorney says neighbors’ concerns about short-term rental not relevant

At the second hearing on the Williams’ permit request, the board heard from several neighbors who opposed it. They were concerned that granting this permit would encourage others to seek a permit and set a precedent that would make it difficult to deny future requests.

They worried about the effect short-term rentals would have on the sense of community in their neighborhood, about having strangers coming and going from these homes and the disruptions they might cause, and about how these rentals would affect their property values.

“The more Airbnbs we have and short-term rentals, the more the community is impacted,” said Loraine McCosker, whose home on Elmwood backs up the Williams’ lot.

Mundy, the Williams’ attorney, told the board that none of this was relevant.

“If the people of the city of Athens do not want short-term rentals in their community, they have the power to legislate against that,” she said. “That has already been done. We are not here today to debate whether short-term rentals are or are not permitted under the code.”

“If the neighbors and citizens of Athens want to change that law,” Mundy said, “they need to go to City Council and do that.”

The board has no answer to three questions

The board then worked its way through a short list of factors it was allowed to consider under the code.

But it struggled with three of them.

One was whether granting the permit would “result in significant negative impacts upon or conflict with the surrounding use.”

Another was whether it would “generally be in harmony with the appropriate and orderly development of the zone.”

Board members noted that determining how the home, if used as a rental, might affect the neighborhood seemed to require them to speculate about what might happen down the road. But Attorney Mundy had already made it clear the board had to base its decision on facts, not speculation.

“This is a question that almost demands speculation,” board member Joe Krause said of the “significant negative impacts” factor.

Board member Kelly Sauber said it was difficult to define harmony as a fact.

A third question was whether granting the permit would be “inconsistent with the city comprehensive plan.”

The city’s comprehensive plan does note the high percentage of rentals in Athens relative to owner-occupied homes, but it doesn’t mention short-term rentals, so the board wasn’t sure how to evaluate this factor.

Ultimately, the board could not reach a yes or no answer to all three of these questions.

The board did agree the Williams’ permit request met the remaining factors, but when it came to a vote, three of the five members voted no. One voted yes and the other abstained because he lives in the neighborhood.

Mundy asked board members to be more specific about their reasons for denying the permit, especially since the board didn’t answer three of the questions that were supposed to form the basis for its decision. But the board said its discussion of each of the factors should have made its reasons clear.

There are limits to guidance council can offer

The judge or magistrate who takes up the Williams’ second appeal can let the decision stand, overturn it and send it back to the board for a third try, or reverse the decision, effectively granting the Williams their permit.

Meanwhile, if the board is seeking guidance from the City Council on dealing with requests for short-term rental permits like the one submitted by the Williams, there are limits to what the council can do.

It cannot tell the board how to interpret the ordinance or what its intentions were when it passed the ordinance. Legislative bodies cannot provide this sort of guidance, said Lisa Eliason, the city’s law director.

“Council only speaks through ordinances,” Eliason said, meaning if the council wanted to provide further clarification for the board, it would have to go through the formal process of amending the ordinance.

Otherwise, it’s up to the board, which sits as a quasi-judicial body when reviewing these permit requests, to interpret and apply the ordinance.

The magistrate made this point in his decision overturning the board’s first denial:

“The problem with the BZA’s view is that City Council has already explicitly determined, by legislative action, that the BZA has original jurisdiction to decide, and shall decide, all requests for conditional use permits.”