Assumptions, assumptions

by David Forbes October 24, 2017

A buried clause, obscured by city staff, spurs the latest chapter in the Airbnb wars and provides a revealing glimpse into who gets a say in Asheville’s growth

Above: a map of the proposed Haywood Road rezoning that ended up the latest flashpoint in the battle over short-term rentals

The political fight over Airbnb-style rentals is, without a doubt, one of the major conflicts shaping Asheville’s politics. Over the past few years, as the industry has grown massive in size and impact on the local housing market, it’s become an increasing political flashpoint.

The disputes over the issue have taken many forms, from ardent back-and-forths at forums to online ruckuses to Asheville City Council showdowns to media investigations.

Sometimes, like at Council’s Oct. 3 meeting, the conflict is buried 44 pages into a complex zoning document.

When the meeting agenda first came out, it didn’t look like Airbnb would be on the agenda at all. While Council’s due to vote again on a contentious rezoning of the RAD, complete with a ban on renting out whole homes and apartments on Airbnb, that’s on the agenda for tonight (5 p.m. at City Hall if you feel the need to weigh in). They were set to hold a public hearing on modifying zoning on the easternmost part of Haywood Road.

Usually staff reports on anything involving short-term rentals (that’s planning jargon for renting out whole homes and apartments to tourists) features the issue front-and-center. Not this time. In the list of changes (mostly about things like setbacks, outdoor space, building size, etc) the report noted that homestays (renting out a room or part of a home one lives in on an Airbnb-style service, after getting a city permit) would be allowed, as they are throughout the city. The report noted an “update for lodging facilities in the permitted use table to align with recent Council actions on review thresholds based on the number of guest rooms” and that at one meeting members of a neighborhood group had “concern and questions about short term rentals as a permitted lodging use throughout the Haywood Road Form Code area.” Nowhere was it clearly noted that “these changes will expand the use of short-term rentals.”

But buried many pages into the actual zoning rewrite was a note that it did, in fact, do just that, considerably expanding the area where property owners are allowed to turn over whole homes to tourist rentals. Right now, such rentals are allowed in some areas, like downtown and the RAD, and their use there has been controversial because they’ve replaced a lot of apartment housing and studio space formerly used by locals.

Fortunately, some eagle-eyed observers spotted the change and brought it to the public’s attention. That led to a very different debate than the one initially expected, and one that shows both how the political tides on this controversy are changing and how staff assumptions are getting a bit more pushback than before.

‘Heartache and headache’

Setting the stage for this was the enduring nature of the conflict over Airbnb-style rentals. Those lobbying for them are largely property owners, especially those who own multiple homes, that see renting them out to tourists as a way to cash in on the tourism boom the same way hoteliers are. While the specifics have varied from fight to fight, they generally want the rules on doing so loosened to allow some form of renting out whole homes and apartments to be easier to do in more areas.

Arrayed against them are a variety of locals who view the practice as a threat on multiple fronts. Renting out a whole housing unit to tourists means that a local can’t live there or was kicked out to make room for an Airbnb. When the local’s forced to find new housing, they now have to compete in an incredibly crowded and expensive market. In one of the most unaffordable, rapidly-gentrifying cities in the country, these detractors say, Airbnb’s proliferation has thrown gasoline on what was already a pretty bad fire. This group includes many renters and affordable housing advocates who assert that the short-term rental explosion has pushed locals out to the benefit of well-off property owners.

Some local property owners also oppose the spread of the short-term rental industry, asserting that it represents an intrusion into local neighborhoods and causes problems with everything from noise to parking.

While repeated investigations have shown that it’s primarily multiple property owners renting out whole homes and apartments to tourists, there is also a small but real group of more cash-strapped homeowners who are renting out rooms or parts of their own home. While many of the most prominent supporters of allowing more short-term rentals own multiple properties, they’ve invoked this group’s plight as a reason to give them more leeway as well.

As pressure over the issue mounted in 2015, Council decided to take a two-pronged approach, loosening restrictions on homestays while clamping down on whole home and apartment vacation rentals in most of the city. While short-term rentals have always been banned in most of the city’s residential neighborhoods, fines were low and enforcement was lax. Now the city upped the fines and put more resources towards seeking out those violators.

Things didn’t end there. While the city tightened its existing ban (though plenty of critics of the industry say it remains too lenient), in plenty of areas short-term rentals were legal and had been for some time. That included areas like downtown and the RAD where development is booming. As the political backlash to the Airbnb-style rental industry has grown, critics have turned their attention to these areas, citing the end of mini-neighborhoods as units are turned exclusively over to tourism.

That’s where Haywood Road comes in. The city tested out a new type of zoning there three years ago, changing the area to a form-based code. While traditional zoning bases its restrictions on uses (commercial, industrial, residential, etc), form-based zoning is more concerned with the scale and type of building and how it interacted with public space (though still with some use restrictions). This was intended to foster denser, more mixed-used development. It also enshrined an allowance for short-term rentals in most of the corridor, though not in the easternmost part.

On Oct. 3, staff rolled out changes to that sector. Development, they asserted, hadn’t taken off there like the rest of the corridor.

“We’ve had time since then to work with developers to review plans, workings of the code with architects, property owners, people who are doing renovations all over the corridor,” Planner Alan Glines noted. “The corridor’s grown a lot in that period of time, a lot of energy and investment, a lot of new businesses along the corridor, very happy about that.”

Since working with “property owners, developers, etc.” Glines said staff now believed that they could “improve” the ordinance by tweaking its restrictions, with some “small changes” to “make it more reasonable to develop these properties.”

While the fact that the “small changes” would open the gates on short-term rentals in the area was obscured in the staff report, Glines did admit the fact in his comments to Council.

“Expanding opportunities for business includes things like lodging, and short-term rentals are a component of lodging, it would also allow a lot of other commercial uses,” Glines continued. “It would in a sense, expand it, because this area doesn’t allow it today.”

He noted that the new changes had passed the city’s Planning and Zoning Commission unanimously and that several property owners in the area had spoken in support of the changes.

While he’d previously favored relaxing the restrictions on short-term rentals in other areas, Council member Cecil Bothwell noted he was “not real comfortable” with expanding it along Haywood Road, and wondered if Council could make its restrictions on using residential units (like homes or apartments) for Airbnb-style rentals more clear across the entire city.

After some discussion, other Council members also said they wanted short-term rentals curbed in this area, and wanted to look at doing so along all of Haywood Road. That meant sending this new rezoning back to the planning board, with a direction that short-term rentals be prohibited in the new version.

“Everyone wants to see a vibrant commercial corridor, but there’s a recognition that lodging, especially short-term rentals, is different than a coffee shop or record store,” Council member Julie Mayfield said.

Mayor Esther Manheimer clarified that they were focused on stopping whole housing unit vacation rentals.

After talking with colleagues and community members about the need to restrict short-term rentals in areas where they’re currently allowed, Council member Gordon Smith said, “it becomes clear this is the direction Council is headed. So in zoning changes coming forward, the more heads-up we can get about lodging uses the better, I think it will save us all some heartache and headache.”

They don’t give a rip about our housing shortage’: Council member Gordon Smith criticized property owners using whole homes and apartments illegally as Airbnb-style rentals. File photo by Max Cooper.

He noted that the larger conversation about restricting short-term rentals in areas they’re currently allowed had complexities as “there are people who have come in under the rules, are using this use and I wouldn’t want to be punitive towards folks who abided by the rules and did what they were asked to do.”

But “there’s hundreds and hundreds of these things still happening in neighborhoods throughout the city. Everyone doing it at this point knows it’s not legal. They don’t give a rip about the law at this point, they don’t give a rip about our housing shortage.”

“What I need to understand is how we’re going to get to zero on these illegal, whole house short-term rentals that are negatively impacting our housing stock citywide,” he continued. “I understand we’re making some progress, but I think we know where these things are. We’ve ID’d who’s doing what. How do we get to zero?”

“We just have to catch them,” City Attorney Robin Currin said.

“I’m taking Gordon’s question as somewhat rhetorical,” Manheimer replied. “He’s calling for a review of how we’re staffing the enforcement and whether we need to ramp that up.”

Manheimer and Mayfield requested that staff present an update on the enforcement against illegal Airbnbs at the Oct. 24 meeting instead of waiting until their usual update in December.

“We keep dealing with these things piecemeal,” Council member Keith Young said. “I’m happy with this going back where it needs to go, but in the future we need to tackle how we deal with short-term rentals as a whole.”

Vice Mayor Gwen Wisler noted that Council might need to shift to hearing all new lodging uses directly, the way it does currently with hotels over 20 units.

“That’ll be our full-time job,” Manheimer replied, but Wisler noted that lodging remains a public concern.

“We’re not trying to make all lodging more difficult, our target is specifically short-term rentals,” Mayfield said. “We’re ok with boutique hotels. But we’re learning people are building structures of under 20-units just for short-term rentals.”

Smith praised “every other piece” of the rezoning except for the allowance for short-term rentals.

During public comment on the issue local resident Stephen Edge said he appreciated Council “taking a step back” to stop short-term rentals, and said it cut counter to the diverse neighborhood with local businesses residents wanted.

“The language regarding this subject was buried 44 pages deep into a rezoning document and shrouded in ambiguous language,” Casey Campfield said, blasting the lack of transparency in the staff report. “Considering how important housing is to the citizens of Asheville, it is a shame that further expansions of short-term rentals aren’t announced clearly at the beginning of zoning documentation and on the Council agenda itself.”

“I’m here to plead on behalf of the renters of Asheville that you do not expand whole home short-term rentals into new sections of town,” he emphasized. “People are being evicted from their homes, people lucky enough to stay in their homes are seeing their rents rise dramatically.”

Property owner Mike Collins said he supported the rezoning and was fine with Airbnb, “what about the property owner’s rights if they did want to put in a short-term rental?”

“I realize it does take away housing, but it’s doubtful in that area that anyone’s going to put in regular housing anyway,” he continued.

Peter Lannis encouraged Council to take a look at halting whole home short-term rentals in downtown as well. “If we want downtown to be a residential neighborhood, I ask that there be some consideration.”

Mayor Esther Manheimer cautioned city staff to give Council and the public more notice when Airbnb-style rentals come up. File photo by Max Cooper.

Council then agreed to send the matter back to staff and the planning board with a bar on whole home/apartment short-term rentals and seek new input from the local neighborhood.

But Manheimer also offered a caution to staff, “as we look at short-term rentals, while they may not be front of mind, they are front of mind for this Council. So that’s going to be a question every time we are presented with a rezoning at this point.”

“So don’t make us guess,” Wisler said.

Towards the next fight

The entire episode was revealing, from the lack of transparency to whom staff felt the need to consult. Notice that Glines automatically mentioned developers, architects, business and property owners as. The Haywood rezoning came before the West Asheville Business Association three times, before the local neighborhood association once.

Missing from that list were the majority of city. Most Ashevillians rent. Most do not own businesses or property. Nor are they architects or developers. That this majority might have an equal or even greater share in the laws of their city, and that they might have interests different from the more well-off groups above, does not seemed to have crossed the planners’ minds. If that is not surprising, it is revealing — and deeply concerning.

Council’s decision also marked a severe check for the pro-Airbnb gentry, as Council — even members sympathetic to loosening restrictions before — indicated allowing them in more of Haywood was a bridge too far. Their discussion seriously raises the possibility that whole home/apartment Airbnb-style rentals won’t just be further blocked, but could be rolled back in areas where they’re currently allowed.

The short-term rental lobby is pushing back. At the planning board meeting about the new restrictions on whole home short-term rentals in the RAD, seven property owners showed up to speak in favor of the practice, and one spoke against. Continuing its more conservative approach to development, the planning board voted unanimously against short-term rental restrictions in the RAD, and the issue goes to a Council where it only prevailed by a single vote at its last hearing.

But just a week after the Oct. 3 meeting, primary election results showed that political pressure against the short-term rentals may be growing. Bothwell, the most vocal supporter of loosening restrictions on Council, lost his re-election bid, while five of the six Council candidates who made it past the primary favor extending the city’s ban on whole home/apartment short-term rentals to areas — like the RAD and downtown — where it’s currently allowed. The sixth, Wisler, has so far supported steps in that direction on Council.

That, however, only raises the stakes. The property owners on the other side may not have electoral numbers, but they have money, influence and spare time. The next chapter in this fight starts at 5 p.m. tonight at City Hall.

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