answered they didn’t count overnights because the City definition does not
state this. They keep track of occupied days with their booking calendar,
which shows 224 days. Ms. Vostatek said other definitions of owner
occupied include coming to take out the trash or to check on the property.
She believes they spent 120 overnights on the property. They are currently
occupying the home full-time for three or four months for the 120 days and
they will continue to come to check on the house in order to fulfill the
requirement of 185 days.
City Attorney Lisa O’Boyle referenced City Code section 7.2.201, which
says “occupied” or “used” shall be considered as though followed by the
words “or intended, arranged, or designed to be used or occupied.” which
isn’t terribly helpful.
Commissioner Almy asked staff for the definition of primary residence.
Carli Hiben said it is when someone lives and occupies the premises for
185 days unless the City Attorney has additional information. Lisa O’Boyle
said City Code does not include such a definition. The number of days
was designed to establish occupancy for more than half the year.
There was further discussion on what constitutes occupancy as a primary
residence.
Commissioner Almy had a question for the homeowners association. The
short term rental agreement is a City ordinance but does not necessarily
override HOA covenants. Mr. Toman confirmed that was correct.
Commissioner Almy asked if the HOA has considered amending their
covenants to not include short term rentals, to which Mr. Toman answered
they have not. He restated they are not opposed to short term rentals and
their issue is about occupancy. They believe the Vostateks are
circumventing the intent of short term rentals.
Commissioner Rickett reviewed the code enforcement cases and found
that the code inspector never encountered the homeowners when he
visited the property. He asked the Applicant to confirm that they only spend
120 overnights on the property, and she agreed. Ms. Vostatek said there
is no clear definition of occupancy in the short term rental application. The
ordinance does define owner occupied as actually occupied by the owner
for not less than 185 days each year.
Commissioner Rickett agreed that more clarification is needed, but it is
clear about primary residence and the state definition means overnight.
Commissioner McMurray said the big picture is the intent of the code.
When this commission decided on the 185 day requirement, it was to
prevent situations with absentee landlords or faceless corporate entities
taking over management. In this case, the property owner lives in town. He
believes the property owners have made a good faith effort to abide by the
