Rebecca Robertson is a long-time Asheville artist, a wife, an owner of short- and long-term rental property — and now, a plaintiff in a lawsuit taking on Asheville’s prohibition of short-term rentals.
“After leaving the art show circuit, I have been able to make a living by creating a vacation rental near downtown,” explains Robertson. She bought a dilapidated property on Spears Avenue in 2013. “It was a teardown,” she recalls, describing the extensive renovation project which resulted in two separate units. Robertson uses the first-floor unit as a short-term rental she calls “The Bluebird of Happiness” in online listings, while the upstairs unit is rented to a long-term tenant.
When she brought the property, Robertson’s realtor urged her to seek out a property which would lend itself to a short-term rental use. “The feeling was that everybody does it. If you get caught, it’s a $100 fine, but the enforcement process is complaint driven. If your neighbors are happy, you are not going to have a problem,” Robertson says she was told.
An anonymous complaint
On October 16, Robertson and about 30 other short-term rental operators received notices of violation from the city. The notices gave the operators 30 days to cease renting their properties to short-term guests. The action stemmed from a city investigation of 40 alleged violations submitted by a single anonymous source as links to internet vacation rental listings in Asheville.
In August, city council increased the fine for violations of the short-term rental prohibition to $500 per night and finalized plans to hire a city staff member dedicated to enforcing existing city regulations on short-term rentals. Shannon Morgan, who has been with the city in various positions for 15 years, took up the new staff position last week.
Upon receiving notice that she must cease operating her property as a short-term rental within 30 days or face steep daily fines, Robertson felt as though the ground underneath her feet had shifted: “I don’t know what I’m going to do. The city has taken my income away from me.”
Robertson and a group of fellow short-term rental operators have banded together to form ASTRA, the Asheville Short-Term Rental Association. The group aims to serve as a resource for property owners and as a voice for their concerns. ASTRA’s group Facebook page has attracted 417 likes in the two months it’s been online. Posts on the page include links to articles challenging arguments advanced by those short-term rental opponents, letters from satisfied short-term rental customers and the results of a small survey of previous short-term rental guests in Asheville.
Some ASTRA members, including Robertson, have taken their activism a step further by working with local attorney Derek Allen of Ward and Smith, P. A. to challenge the legality of the city’s short-term rental regulations. On Wednesday, Oct. 28, Allen filed a civil action against the city on behalf of Robertson, her husband Wann Near and Christal Weatherly of Asheville.
In the complaint, Allen advances five separate legal arguments in support of the plaintiffs’ claim that the city’s prohibition against short-term rentals is invalid. In one argument, the case claims that Chapter 42a of North Carolina state law, the Vacation Rental Act, provides rules for vacation rentals which allow for short-term rentals. The case asserts that the state law preempts any local law, including Asheville’s Unified Development Ordinance.
Allen commented that Asheville’s short-term rental operators are not the first group of owners to challenge local prohibitions on vacation rentals. And he stressed that his clients and other short-term operators may find relief through means other than a lawsuit.
“We suggested some different alternatives to city council and the planning department years ago,” said Allen. “We favor a special use or conditional use permit process, whereby the city can tailor its approval to each specific property. That kind of process can consider a list of factors, including the proximity to downtown, the presence of other units, transportation issues and others.”
“I can’t imagine anything more Asheville than sharing your home with guests from out of town. This is an awesome alternative to have in Asheville,” Allen concluded.
City Attorney Robin Currin responded to inquiries in an email: “I did receive this Complaint, but have not had time to review closely or analyze, so it would be premature to discuss at this time. We will be filing an Answer in the next several months, and that document will set out the City’s position specifically. I am glad to share that with you when it is prepared and filed.”
Mayor Esther Manheimer was not immediately available to comment on the lawsuit.
Councilman Cecil Bothwell said, “This was to be expected. A rash decision by members of city council has plunged us into another needless lawsuit. Many STR owners have been operating for years with city staff assurance that all would fine as long as there were no complaints. We have permitted people to make substantial investments based on that enforcement policy, and they very reasonably feel defrauded. I’m sorry this will have to be settled in court, since there are much better ways to handle short-term rentals as we have seen in many other cities.”