Attorney Todd Starr stood before the Archuleta Board of County Commissioners on December 7, representing his client, Pawprint Properties LLC.
“Members of the Board, what I’d like to do… there’s really three parts to my argument this afternoon. I’d like to talk to you about the legal issues… there’s three components to why you can’t legally do this.
“One is very serious, and very strong, and should be the end of the case. And secondly, I like to talk with you about just some of the equitable problems with what’s going on here. And thirdly, to propose a resolution.”
“The case” was an appeal before the BOCC, regarding “Un-permitted Vacation Rental Fines” for a Short-Term Rental located at 10600 County Road 326.
From the Executive Summary provided by Pamela Flowers, County Development Director:
Pawprint Properties LLC, represented by Pylar Pinkston, has appealed accumulated fines for operating an Un-Permitted Vacation Rental at 10600 County Rd 326, Pagosa Springs (VR003902). This short-term rental operated from at least February 1, 2020 without a Vacation Rental Permit (VRP). This owner also had two additional Un-Permitted Vacation Rentals (VR) at 300 USFS Rd 668 (VR024644) and 13921 County Rd 326 (VR030658). The Appellant received the first Notice of Violation/Order for Abatement (NOV) for the subject property on July 31, 2020 seeking compliance, to no avail. As indicated in that NOV (attached), effective August 21, 2020 fines of $100 per day began accumulating on the property, totaling $39,500 until advertising for the VR ceased on September 20, 2021. The Appellant first contacted the Staff a few days after separate STOP USE ORDERs were posted on each of the properties in August 2021.
Ms. Pinkston appealed her $39,500 fine to the County Planning Commission on September 22, 2021, at which time the appeal was denied and the decision of the Development Director was upheld by a unanimous vote. Apparently, Ms. Pinkston then retained Mr. Starr to represent her at the BOCC appeal.
It appears from the Planning Commission report, that Ms. Pinkston received at least nine email notifications of her violation, prior to her property being posted with “STOP USE” signage.
Colorado Revised Statute § 30-28-124 makes the unlawful use of any building in violation of County Land Use Regulations a misdemeanor, punishable by a fine of up to $100. Further, this section (and section 1.4.2.2 of the Regulations) provides that each day a violation remains uncorrected, after receiving notice of the violation from the County, “shall constitute a separate violation.”
So, then, operating a un-permitted vacation rental in Archuleta County can subject the owner to a $100 fine, for each day it operates. In the case of the County’s Land Use Regulations, “offering” a un-permitted vacation rental — on Airbnb.com, for example — constitutes an “unlawful use”, even if no one actually rents the house on any given day.
Some of our Daily Post readers may be familiar with Mr. Starr, considering that he served as the Archuleta County Attorney from about 2008 until 2018. I had my own dealings with Mr. Starr, when I sued the BOCC a number of years ago, for conducting what I believed to be an illegal closed-door meeting.
In my experience, however, Mr. Starr has often exhibited a creative approach to the practice of law, and that approach appeared to be in evidence on December 7, when Mr. Starr presented the legal case for rejecting Ms. Pinkston’s $39,500 fine.
“The legal issue is really a failure of proof. Regulation 3.2.7 states that it is unlawful to rent, or to offer to rent, a dwelling unit as a vacation rental unless or until a vacation rental permit has been approved.
“That is the regulation that [Development Director] Flowers is proceeding under. And nowhere in there, and in fact nowhere in the Land Use Regulations is it made illegal to ‘advertise’. What is illegal is renting, or offering to rent.
“There is absolutely no evidence in the record — whatsoever — that this unit has ever been rented. What there is, and what you saw, is a screenshot of an advertisement to rent [the property].
“So… what does it mean ‘to offer’? That’s what it boils down to. An ‘offer to rent’ is not defined in the Archuleta County Land Use Regulations, as it should be.
“Therefore, as the commissioners may know — and I quote from Petron Development Co. v. Washington County Board of Equalization… when you interpret a regulation or provision, you look to the ordinary and common meaning of the language…”
Here’s the actual quote from that particular Colorado Supreme Court case:
In discharging our judicial function, we afford the language of constitutions and statutes their ordinary and common meaning; we ascertain and give effect to their intent.
As you might be able to guess at this point, Attorney Starr is about to make the argument that a person does not make an ‘offer to rent’ a vacation rental, when they merely ‘advertise’ their rental on Airbnb or other website.
Mr. Starr wanted to argue that an ‘offer to rent’ is something totally different from an ‘advertisement’.
“What does it mean, ‘to offer’? Webster’s Dictionary says, and I quote, ‘to give someone the opportunity to accept or take something’. The opportunity to take something. For instance, ‘We’d like to offer you the job.’ You say, yes, and you have the job.”
Thus far, I would have to agree with Mr. Starr. The transitive verb ‘to offer’, in context, can mean what Webster’s Dictionary says it can mean. (Although, technically, it’s the Merriam-Webster Dictionary, if we want to split hairs.)
From the Merriam-Webster Dictionary:
1 : to give someone the opportunity to accept or take (something). We’d like to offer the job to you. We’d like to offer you the job. I was offered a position at a bank, but I turned it down.
2 : to say that you are willing to do something. One of his neighbors offered to mow his lawn. A woman stopped and offered to help us. We don’t need any help, but thank you for offering.
3 : to make (something) available : to provide or supply (something) They offer [=sell] a wide range of products/services at reasonable prices. A few of my teachers offer [=give] extra help after class.
But Mr. Starr, legal eagle that he is, wanted to seriously split hairs.