JEROME - A fourth of Jerome's residents put a divisive, council-approved vacation rentals ordinance onto the Aug. 26 primary election ballot.
Ordinance 405 was approved 3-2 in October of last year after about a year of zoning debates and dozens of resident objections.
Douglas Freund, the Save Residential Jerome committee chairman, said keeping vacation rentals out of neighborhoods is a quality of life issue, as well as health, infrastructure and safety.
"Each vacation rental is a resident lost," he said.
Town Mayor Nikki Check was one of the yes votes on the ordinance, and was one of three signatures on the only "Pro" statement that will appear on the ballot in August.
"There are those who feel like (vacation rentals) shouldn't be in existence," Check said. "But they have been in existence for a long time."
The ordinance carves up Jerome into seven neighborhoods and allows one vacation rental in each.
"We do have really distinct and separate neighborhoods," Check said. "They all have names and certain densities, and we didn't want to overrun a neighborhood with transient housing. It was really important to maintain the character of our neighborhoods."
Any complaints about the vacation rentals operating in residential zones would have been handled by the town's zoning administrator.
Since this issue started, Check said, the town has been through two zoning administrators, and is now in the process to find a third after the position recently became vacant once again.
"We just lost another one," Check said. "We pretty much train up zoning administrators and then ship them off to other places."
The town planned additional staff support into the budget for the next fiscal year. More staff members will be contributing, and are being given more hours to do their jobs during the day.
"We're trying to make it a more supported position," Check said.
Freund said the inconsistency is part of the problem.
"We've been hampered by not having consistent representation," he said.
Freund said there is a clear process in place for property owners looking to use their homes for activities not specifically allowed in the code.
"Our planning and zoning department failed us in this," he said. "They dropped the ball repeatedly. We asked them in open meetings to follow the rules, and they never did."
Resident DorÃ-e Christensen urged the council not to pass ordinance 405 during a planning and zoning meeting in April of 2013. Among other arguments, she criticized the code's vague guidelines dealing with vacation rental violators.
"When should a slap on the wrist be given; when should permission be revoked -- these things are unclear at best," her statement to the commission reads. "And with the investment the owner has put into the rental, that owner is unlikely to let go without a fight or a lawsuit."
While residential zoning complaints do go through the zoning administrator or town manager, Check said she has not heard of a single resident complaint made to either of those offices claiming a vacation rental operating with a business license is violating rules.
The Jerome Police Department would be responsible for following up on these types of complaints, Check said, a system likely to continue if the ordinance stands after the primary election.
Freund said it would be helpful if the town code did specifically identify vacation rentals.
"We do need an ordinance, but most importantly we need enforcement of our existing ordinance," he said. "If we have that enforcement to shut down vacation rentals in the residential zone, then we can deal with an ordinance that adds a definition of vacation rental."
Residential v. commercial use
Vacation rentals are not specifically allowed in residentially zoned neighborhoods, and Freund pointed to the town code. Here, any use not listed is considered prohibited.
Check said this is an argument to be made, but that it is unlikely to stand up in court.
The Goldwater Institute, a conservative think tank in Phoenix, sent a letter to Jerome's planning and zoning commission in September of 2012. The group points to the Private Property Rights Protection Act, which entitles owners to be compensated when their property value is decreased by a land use regulation.
One line of that act does state, however, that this does not apply to land use law enacted before the effective date of the new statute. Freund said this makes Jerome's zoning code, enacted long before, immune.
"The law is on our side," he said. "We have a zoning ordinance that tells us what our rights are, and our town is turning that on its head."
Check, on the other hand, said state law is likely to supersede local regulations.
"I would say that's pretty vague language that wouldn't hold up in court," she said of the code's "any use not specifically permitted" line.
"You could go that direction, but state law would probably trump us in this scenario regarding property rights, equal protection and legal nonconforming use," she said. "All of that would trump our little sentence."
The town's ordinance does not specify a length of time that would define a rental, Check said.
Freund pointed to tax code definitions for "hotel," "lodging," and "transient," none of which were used to interpret the language in the town's zoning code.
Here, a time limit is specified. "Transientâ means any person who either at the person's own expense or at the expense of another obtains lodging space or the use of lodging space on a daily or weekly basis, or on any other basis for less than thirty (30) consecutive days."
A hotel requires nine rooms and a vast space, Freund said, but vacation rentals are not hampered in by these types of restrictions.
"Then we lose residents," he said. "Conceivably, even retail businesses will go away because you can make more money renting out for 400 a night."
Renters behave like residents, Check said, and an exchange of money doesn't necessarily mean the home's use has become chiefly commercial. Meanwhile, vacation rentals located in commercial zones still have to get conditional-use permits for residential use.
"Everything in our code has pointed to the idea that we believe it's a residential use," she said.
Ordinance 405 grandfathers in existing vacation rentals.
Freund said it's fallacious to think that "the horse is out of the barn" when it comes to vacation rentals that are already up and running in Jerome.
"These people have this use and now they have to be able to keep it...that isn't how land use is done," Freund said.
Check said maybe one neighborhood has more than a single vacation rental operating, while Freund said they were much more widespread.
The town's center is locked in by the six other neighborhoods surrounding it, meaning even at one vacation rental apiece, that section of Jerome will be impacted significantly.
Further, Freund said the town couldn't grandfather in a vacation rental that was never operating legally to begin with.
"These people started doing this use, they didn't have permission," he said. "To grandfather runs against our town code."