As noted in Part One of this editorial series, Texas resident Karen Poquiz filed an appeal with the Archuleta County Planning Commission, asking them to overturn a decision by County Development Director Pamela Flowers.
Ms. Flowers had revoked the vacation rental permit held by Ms. Poquiz, due to an illegally-built garage apartment that Ms. Poquiz and her husband Dennis had been advertising and renting out as an STR (Short-Term Rental).
Apparently, that apartment was built illegally — without a building permit — by a previous owner of the property located in the San Juan River Resort subdivision.
Negotiations to address the illegal structure had broken down, it seems.
Archuleta County recently amended its land use regulations, to prohibit a vacation rental business if any non-permitted structures were located on the property.
We were told that this rule does not apply to long-term rentals — only to STRs. Ms. Poquiz and her husband apparently have the option to rent their investment property — a five-bedroom house, and a one-bedroom garage apartment — to local workers or retirees, without suffering any hassles from the County Planning Department.
But when a vacation rental permit is revoked by the Development Director, as this one was, the permit holder has the right to appeal the decision to the County Planning Commission.
The report included in the Commission packet noted that Ms. Poquiz had been allowed to continue operating her STR if she took important two steps, going forward:
The steps presented for remediation were to cease advertising and new bookings, cancel existing bookings, and initiate actions to receive an After-the-Fact Building Permit for the detached garage that was built without a permit by a previous owner.
During subsequent conversations with you and the property manager from iTrip, Charlee Michelle, this department agreed to a specific course of action, as an effort to minimize your financial discomfort during the process of bringing the property to compliance with the building and zoning codes.
The conditions agreed upon between the Department of Development Services and yourself were as follows:
1. Immediate removal of the unpermitted structure (garage apartment dwelling) from all advertisements and usage, both independent of and in conjunction with the main house.
2. The property owner will take the necessary steps to obtain an After-The-Fact Building Permit for the offending structure.
Apparently, independent advertisements for the unpermitted garage apartment dwelling were taken down, but the bedroom in that apartment continued to be used in advertising the maximum occupancy for the main house — a violation of land use regulations, and also a violation of the agreement between Ms. Poquiz and the Planning Department.
Additionally, as of the date of this letter, you have taken no action with the Archuleta County Building Department to obtain the permits necessary for an After-The-Fact Building Permit. In fact, you expressed to this department in a later phone call that a structural engineer has found that the entire garage is in need of significant remediation before it could obtain the required engineer’s approval. You have further indicated that due to the significant cost to bring the structure to code, you have no interest in making the necessary repairs, at least at this time.
This leaves demolition of the structure as the only remaining way to deal with the unpermitted structure. A permit for demolition of the offending structure has also not been sought from the Building Department as of the writing of this letter.
The County Land Use Code allows fines of $100 per day for STRs operating without a valid permit. At the time of the commission meeting last Wednesday, Ms. Poquiz no longer had a valid permit.
The four members of the commission — David Parker, Anita Hooten, Richard Vihel and Mont McAllister — were thus faced with the opportunity to uphold Ms. Flowers’ decision, or to overturn the revocation and allow Ms. Poquiz to continue operating her vacation rental through the remainder of the year.
As Ms. Flowers pointed out during the hearing, her ability to enforce County land use regulations depends, in part, upon the willingness of the Planning Commission and the Board of County Commissioners to back her up, and support her decisions when they are supported by existing regulations — regulations adopted by the Archuleta Board of County Commissioners, acting in its legislative capacity.
Neither the Planning Commission nor the Planning Department created the regulations underlying Ms. Flowers’ decision, nor do either of those groups have the power to amend or change those regulations. They have only the power to enforce them, in a just manner.
After significant testimony from Ms. Flowers, Ms. Poquiz, and interested members of the audience, the Planning Commission voted to uphold the revocation of Ms. Poquiz’ vacation rental permit. No doubt a bitter pill for Ms. Poquiz and her husband to swallow, heading into the normally-busy ski season.
As mentioned, current County Land Use Regulations allow a fine of $100 per day, when a vacation rental operates without a license. How, exactly, this penalty gets enforced is perhaps more art than science. Most STRs in Pagosa Springs presumably use AirBNB.com or VRBO.com or Booking.com — or similar online platforms — to connect with potential renters. These platforms track not only the availability of rentals, but also track the reputations of both renters and rental owners, as reported through those same platforms.
The platforms also provide — incidentally — a way for government agencies to track which advertisers are operating without a permit, and which advertisers are advertising a maximum number of occupants in excess of what their permit allows.
In other words, participation on AirBNB and VRBO and the rest of the popular booking platforms is a double-edged sword, if a rental owner is trying game the system. By revealing yourself to potential customers, you also reveal yourself to the government.
And that can have agonizing results, as rental owner Michael Devloo discovered.
Mr. Devloo had also filed an appeal of a decision by Ms. Flowers… an appeal, of a very expensive decision.