Overnight lodging rule sparks controversy

By Nathaniel Smith • The Times-Independent

A recent legislative action by the Moab City Council has drawn criticism from residents, most prominently attorney Christina Sloan. The council passed ordinance 2018-01, titled “Resolution Repealing Conditional Uses from the Moab Municipal Code,” during its regular meeting on Nov. 13. The ordinance updated Moab’s municipal code by removing “conditional uses” and replacing them with “allowed uses with standards” or eliminating them altogether.

Before its passage, the ordinance raised concerns among certain citizens because it replaced the term “family” with “household,” which caused some to worry there would be no limits on occupancy. However, Sloan’s criticisms, originally expressed to Mayor Emily Niehaus and the city council via email on Thursday, Nov. 29, focused on a different provision of the ordinance. Sloan wrote, “I fear that our mayor and council have permitted unethical (and potentially illegal) action by adopting Ordinance 2018-01, which removes long-standing uses by right from certain zones, without proper transparency.” More specifically, Sloan was referring to overnight lodging of less than 10 units being removed from the list of allowed uses in the C-2 zone.

Sloan, who was recently elected to serve as the Grand County Attorney, emphasized she was speaking as a private citizen and that her comments only represent her personal opinion. Though Sloan did note she was sharing the concerns “on behalf of many dozens of folks who have contacted me.”

The thrust of Sloan’s argument is that Chapter 17.21 of Moab’s municipal code lists “Lodging establishments (under ten units)” as a permitted use, not a conditional use, and all the city’s public notices regarding the ordinance represented it as only dealing with conditional uses. Permitted uses are allowed as long as the landowner meets all other requirements of the zoning category. On the other hand, conditional uses are defined by Utah law as “a land use that has unique characteristics or negative effects that may not be compatible in an area without conditions to mitigate or eliminate the detrimental impacts” and they require application for a special permit. Local governments have the authority to determine which uses are permitted and which are conditional, so much of Sloan’s argument hinged on a lack of transparency.

Sloan pointed out the decision to remove overnight lodging from the C-2 zone was made at a workshop instead of a regular meeting. Council workshops are open to the public, but as Sloan noted, they typically have lower attendance and less engagement from citizens.

In response to Sloan’s criticisms, city staff wrote an explanation and proposed resolution that Council Member Rani Derasary shared with The Times-Independent. The explanation states that at a workshop on Sept. 10, the council decided nightly rentals should be a permitted use in C-2 zones, but only in the form of a bed and breakfast. In an interview with The Times-Independent, City Manager David Everitt said the council wanted some sort of nightly rental definition but since the C-2 zone is meant to be a buffer between residential and commercial areas, they settled on a less intensive form of overnight lodging, i.e. B&Bs.

Sloan pointed out the major difference between B&Bs and overnight lodging more generally is that “the owner has to live and be present on site when renting rooms in a B&B.”

The explanation from city staff admits, “From both a legal and a practical standpoint, the council agrees that the language of the agenda item was not clear enough.” It continues to say that at the next regular meeting on Dec. 11, the council will consider initiating a separate process to disallow nightly rentals other than B&Bs in the C-2 zone and perhaps examine all zones to determine where overnight lodging is best suited in Moab. Until a decision is made on that front, the provision in ordinance 2018-01 that removed lodging establishments is “considered to be not valid and will not be codified.”

Speaking with The Times-Independent on Monday, Dec. 3, Everitt said he was unsure “what formal steps need to be taken” to rectify the issue.

In response to the city’s explanation, Sloan wrote, “When taking away private property rights and thereby affecting lives, retirements, and millions of dollars in property value, the city should be excessively transparent in its procedure and engage the public fully. Doing anything less, as the current circumstances show, undermines the public’s confidence in its elected officials and could destabilize Moab’s economy into the future.”

Everitt said the city did properly notice modification to conditional uses, but in hindsight, his analysis was that providing adequate public notice changes to permitted uses was “not sufficient.” Sloan assigned malintent to the lack of notice, writing, “This debacle does not feel like a big misunderstanding. It feels like purposeful and unethical non-disclosure on the part of some of our elected officials.” Responding to that accusation, Everitt said he couldn’t speak on behalf of the council, but in his experience, the idea that the council’s actions were purposeful non-disclosure is “hyperbolic” and an “absolutely false characterization.”

The upshot, Everitt said, is that he met individually with council members and they are still unsure what the procedure will be moving forward, but for the time being, lodging establishments fewer than 10 units are still allowed in the C-2 zone. “This is a good reminder to be super on top of noticing,” Everitt concluded.