We have a lot of small stores, small restaurants that can’t be open because they don’t have employees, and they can’t get employees because the employees can’t find any place to live.
– Dick Elsner, Park County commissioner, as quoted in a recent article by Faith Miller shared in the Daily Post.
Like many other Colorado communities, Pagosa Springs has seen an inordinate number of residential homes vanish from the residential housing market as the result of being converted into mini-motels known as ‘vacation rentals’ and as ‘Short-Term Rentals’ and as ‘STRs’.
One such mini-motel, owned by Pawprint Properties LLC and represented by Pylar Pinkston, appears to have been operated for at least 19 months, illegally, without a County-issued vacation rental permit, and as a result had run up $39,500 in penalty fees for violation of the County Land Use Regulations. The property owners had appealed those fines to the County Planning Commission, but the Commission upheld the charges by a 4-0 vote. Pawprint Properties then retained former Archuleta County Attorney Todd Starr to argue an appeal before the Board of County Commissioners on December 7, 2021. Mr. Starr claimed that Pawprint Properties had merely “advertised” their vacation rental, but — he argued — had never “offered” to rent the property.
According to Mr. Starr, “offered” means something very different to lawyers than what it means to ordinary mortals. He quoted from a 2009 court case, Sumerel v. Goodyear Tire & Rubber CO… wherein the lawyers argued over a faulty hose installed in an automobile.
“This case defines what an ‘offer’ is. ‘An offer is a manifestation of a willingness to enter into a bargain.’ Well, you know what? So far, the Airbnb advertisement meets that.
“But let’s keep reading. ‘An offer is a manifestation of a willingness to enter into a bargain, so made as to justify another person in understanding that his assent to the bargain is invited, and —
“And here’s the key word — ‘and will conclude it.’
“Well, listing the property on Airbnb or VRBO does not constitute an offer, because it doesn’t conclude it. If you’ve ever rented a unit through VRBO, you know what you do is you find the advertisement for the property you like, and then you make an offer to the owner of the property, and say, ‘Hey, I’d like to rent your property on these dates. And then the owner comes back to you and says, ‘Accepted.’
“And it’s at that point that the renter’s offer is accepted! There is never an ‘offer’ on that advertisement from the landlord.”
Mr. Starr also asserted that “an advertisement is free speech. We have a constitutional right to free speech.”
He then switched gears, and argued that the $39,500 penalty was oppressive, because the property owners had experienced the deaths of three family members during the 19 months of illegally advertising the rental. He suggested an appropriate fine would be in the neighborhood of $4,000.
“[The owners] recognize that they are not lily-white. They recognize that, despite all of this, they should have complied with the regulations… They should have come into compliance with your regulations.”
For any Daily Post readers who might be unfamiliar with an Airbnb advertisement, here’s a sample:
According to Mr. Starr’s logic, this does not constitute ‘an offer’.
The BOCC did not make a decision on the appeal following Mr. Starr’s December 7 performance. The current County Attorney, Todd Weaver, had recommended — at a work session, earlier that same morning — that he compose a legal response to whatever arguments Mr. Starr would be making later in the day, and that the BOCC could consider the case and make a final decision at their December 21 meeting.
That decision took place yesterday.
In his published summary, Attorney Weaver rejected Mr. Starr’s (ridiculous?) Sumerel v. Goodyear Tire & Rubber CO. argument, that an Airbnb advertisement was not ‘an offer’.
Attorney Weaver did not bother to address Mr. Starr’s other arguments. His summary concluded, however, with two potential BOCC actions:
31. For these reasons set forth herein, the BoCC’s decision is as follows:
The decision of the Planning Commission to uphold the fines in the amount of $39,500.00 was well founded and that decision is affirmed. OR
The decision of the Planning Commission to uphold the fines in the amount of $39,500.00 was well founded, but due to extreme extenuating circumstances related to the Owner and their family deaths during the relevant time span, the BoCC determines that a fine in the amount of $ _________.00 is more appropriate.
At yesterday’s meeting, Commissioner Warren Brown moved to reduce the penalty from $39,500 down to $20,000, on account of the family’s ‘extenuating circumstances’. He did not give any indication as to how he had arrived at that particular dollar amount.
It appeared, momentarily, that Commissioner Ronnie Maez was ready to suggest a higher amount. He noted that a business person needs to be ready to continue operating their business, even when family emergencies strike. But after a bit of quiet consideration, he seconded Commissioner Brown’s motion, and the three commissioners approved the reduced penalty amount.
As noted yesterday in Part One, 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.”
Practically every day, I hear complaints from local residents — business owners, government employees, workers at essential jobs — about yet another business closing, or cutting its hours, due to the lack of available employees in Pagosa Springs. Often, these complaints refer to the explosive growth of the vacation rental industry, and the related disappearance of residential housing options. Often, these complaints mention the skyrocketing price of homes, and rising long-term rental rates.
The Town of Pagosa Springs is making an obvious attempt to address this damaging situation, and has placed a virtual moratorium in place, limiting the percentage of vacation rentals allowed in residential-zoned districts, and putting other restrictions on vacation rentals.
The Archuleta Board of County Commissioners, meanwhile, continue to welcome a steady stream of new vacation rental permit applications — and to ignore the working families that are being evicted as a result.