County Planning Commission provokes fireworks over Short-Term Tourist Rental Permit in Highland Estates Subdivision

The Warren County Planning commission held both a work session and its regular monthly meeting on September 8, as it continues to grapple with the planning issues of a changing community.

At the work session, Planning Director Joe Petty provided an overview of work done so far by the planning staff in collaboration with the Commission in the early parts of the Warren County Comprehensive Plan update. Some sections of the plan have not been updated since 2011, and land use is growing in prominence as an issue for citizens, as well as prospective developers. The 2020 U.S. Census Data that will be needed to assist in the process of rewriting the Comprehensive Plan is not yet available, so the Commission and the Planning Staff are pursuing a phased approach to the task with locally-developed data in the interim. A wide-ranging discussion covering public perceptions, concerns about large developer interests, and the provision of infrastructure, power, water, and sewer then ensued.

County Supervisor for the Shenandoah District Walter Mabe was present for the work session and weighed in regarding the difficulty of planning for orderly growth when water and sewer services are controlled by the Town. Maintaining the rural character of the county must be a priority while still allowing for growth in population and commerce that are inevitably coming. There are plenty of examples of localities nearer to the city that struggles with the results of poorly regulated growth. According to Mabe, the Board of Supervisors shouldn’t have a problem saying “no” where appropriate, but there must be consensus for it. The process should not be driven by developers, but by elected officials with citizen input.

Work on the Comprehensive Plan will continue through mid-2022.

Immediately following the work session, the Planning commission convened their regular monthly meeting, with Vice Chairman Hugh Henry as acting chair in the absence of Chairman Robert Myers. As is a standard part of each regular meeting, the Acting Chair opened the floor for public presentations to give citizens the opportunity to address planning issues that are not part of the planned agenda, but there were none.

The County Planning commission meets less its chairman to consider controversial conditional use permit requests for short-term tourist rental. Photos by Stephen Sill, Royal Examiner.

Quickly turning to the Public Hearing portion of the meeting, the Commission considered three Conditional Use Permit (CUP) proposals.

Charles and Lou Ann Dotson have requested a Conditional Use Permit for private-use camping on their lot in the Mandalay Subdivision on Burma Road. The property is in the North River magisterial district. The applicants plan to use their riverfront lots in the special flood zone for family gatherings and outdoor recreational use and intend to use a 5th Wheel Camping trailer seasonally.

When the chair opened the floor for public input on the proposal, there was none. So, the Planning Department recommended the conditions for approval would include the special flood-plain provisions. The commission unanimously recommended approval of the permit by the Board of Supervisors next month.

Jacob Lott and Sandra Kiepfer have applied for a Conditional Use Permit for a short-term tourist rental for their property at 50 Little Indian Road in the Shenandoah District. The property is zoned Residential (R-1). The applicants live across the street from the subject property so can provide on-site management. The applicants are also experienced in managing short-term rentals elsewhere in Warren County. Again, there was no public opposition to the proposal, and the commission voted unanimously to recommend approval.

Nicole and Sean McMinn are requesting a Conditional Use Permit for short-term tourist rental for their property at 277 Sagar Drive in the Fork Magisterial District. The property is zoned residential and located in a private subdivision on a marked private road. The applicants stated they intend to have a local contractor manage the property; and in preparation for the public hearing had engaged several neighboring property owners, as well as the Property Owner’s Association to hear and respond to their concerns.

Property owners Nicole and Sean McMinn describe their efforts to discover and mitigate other homeowners’ concerns about their proposed short-term rental property on Sagar Drive.

When the Chair opened the public hearing for this proposal, the meeting became a forum for fierce opposition to this Conditional Use Permit application. Seven impassioned property owners in the Highland Estates Subdivision came to the podium to express their thoughts. Several property owners were upset about the County allowing a use that could potentially impact their own security or privacy. At least partly because of the unique nature of the subdivision, which does its own road maintenance and provides its own security, the perception is that the county government is an unwanted overseer.

Some owners were concerned about strangers in their neighborhood, some charged that the short-term rental activity was a business rather than residential use, even though the Virginia legislature has explicitly stated it to be a residential use and not a business. The possibility that short-term rental guests might intentionally or inadvertently trespass on others’ property was another common complaint, particularly since the property in question does explicitly not have direct access to the river. There is a history of people who are not property owners in the subdivision getting access to the river by cutting across the riverfront lots and ignoring private property signs. There was a good deal of anger over outsiders coming in and changing the private nature of the subdivision.

Steve and Tammy Sagar express their opposition to the short-term rental use of a property in the Highland Estates subdivision.

Once the last property owner had spoken, the applicants were asked if they wished to provide a rebuttal, and Sean McMinn expressed his appreciation to the members of the public who had taken the time to come and express themselves. He said that he hoped they would be able to work with the surrounding property owners to allay their concerns and indicated great willingness to do so. Mr. McMinn also reminded the audience that a Conditional Use Permit can be revoked if a property owner does not abide by its conditions, which gives the surrounding residents some additional protections.

The commissioners briefly discussed the case and reminded the audience of the legislative declaration that a short-term tourist rental was not a business per se and cautioned the applicants that they have some “work to do”. Further, he noted that as an alternative to the McMinns seeking a CUP for short-term rentals, the property owners could simply rent out the property to whomever they chose long term, and neighbors would have to potentially live with a long-term problem, with no real recourse to subsequent problems. Absent any legal reasons not to, the commission voted unanimously to recommend approval of the CUP to the Board of Supervisors.

Several audience members then tried to interject their thoughts but were gaveled down by the chair since the public hearing had been closed, leading to a stormy departure from the meeting.

Angry audience members remonstrate with the Planning Commission after its vote to recommend approval of a Conditional Use Permit in Highland Estates despite vocal opposition.

For the second month in a row, proposed uses of private property have faced determined opposition by neighboring property owners. First commissioners, then supervisors, are facing balancing acts on individual property rights versus the opinions and concerns of impacted neighbors. Sometimes the balance tips toward the neighbors who may be adversely affected by a proposed use provided such an adverse effect can be validated. Sometimes the property owner’s rights can take precedence if all legal conditions are met, and adverse impacts are mitigated.

Commissioners have noted that it’s essential for opponents to be able to show specifically how they would be harmed by a use if it were approved. Merely being opposed to something is not enough: “We have always assumed we would have privacy here” or “We moved here to get away from all that” are not legally supportable reasons to deny another person a legally zoned use of their property. Potential public hearing speakers are urged to research what the law and local regulations say regarding specific uses in subdivisions. By the same token, property buyers should ascertain – in advance – what the local conditions are when considering a use that could affect others in proximity to their properties at issue. On the short-term rental side of the equation, much confusion seems to revolve around the state government defining that use as “residential” rather than a “business” use.

In a significantly quieter atmosphere, the commission turned to two authorizations to advertise for public hearings. Terra Site Constructors, LLC is seeking a Conditional Use Permit for a contractor’s storage yard at 6986 Winchester Road, a site zoned Industrial (I) in the North River District. The 10-acre site will be used in addition to the company’s current property at 900 Shenandoah Shores Road. An existing single-family dwelling on the property will be used as office space and/or housing for full-time staff. The Commission voted unanimously to approve the authorization to advertise.

Gordon Lee Birkheimer is requesting a CUP for a short-term tourist rental for his property at 52 Forest View Drive in the Massanutten Farms Subdivision in the Fork District. The property is zoned Agricultural (A) and will be used for this purpose while the owner is overseas. It will be locally managed and maintained. The commissioners unanimously approved the request for a public hearing on the application.

Finally, Planning Director Joe Petty introduced a new face to the Commissioners. Chloe Phillips will be providing administrative support to the Planning Department, bringing the team finally up to full strength. Director Petty particularly commended Deputy Director Matt Wendling for filling in to support the department in the absence of an administrative assistant.

The Chairman adjourned the meeting at 8:10 p.m.