Lawsuit accuses Athens commissioners of illegal discussions ahead of short-term rental decision

A group of short-term rental property owners has filed a lawsuit against the Athens-Clarke County government, challenging a recent county commission decision to amend the county zoning ordinance that could eventually and dramatically curtail STR operations.

In recent months, STRs have become a focus of complaints that they bring an overflow of people, along with increased noise and traffic, into the single-family neighborhoods in which some of them are operated. Those complaints were featured prominently in public comment at a meeting last month where the ordinance was approved, with conditions, by Athens-Clarke County commissioners.

In addition to raising property rights issues, the lawsuit filed in Athens-Clarke County Superior Court contends that Athens-Clarke Mayor Kelly Girtz and the 10 district commissioners violated the state’s open meetings law when they took a break outside of public view, apparently discussing the amendment, after two failed votes on the issue.

“Following the extended recess, the Commission unanimously voted to adopt the Ordinance without any discussion whatsoever,” the lawsuit notes.

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The STR owners who filed the lawsuit are demanding a court review of the process by which the ordinance amendment was adopted and are asking the court to issue a judgment “that requires the Unified Government (of Athens-Clarke County) to exercise its zoning authority in a constitutional manner and in compliance with the laws of the State of Georgia.”

More specifically, the lawsuit contends that short-term rentals are “an ordinary residential use,” and goes on to call the demarcation of less than 31 days of occupancy at a time to define an STR as “irrational.”

Beyond that, the lawsuit contends the local government did not undertake any detailed analysis on the impact of STRs locally beyond looking at a New York Times story from December of last year, headlined “How College Football Is Clobbering Housing Markets Across the Country” that looked at the expansion of STRs in the community in connection with the University of Georgia’s football season.

The story read, in part, that “(r)eal estate investors are buying and building homes for fans who will pay hundreds or even thousands of dollars on a weekend of housing for a home game, and the effects are impacting local residents all year long.”

Listed as petitioners in the lawsuit, and all identified as owners and operators of STR properties in Athens-Clarke County, are three limited liability corporations (LLCs) and six individual property owners.

Of the three LLCs, just one, KCR Residential, is listed as operating in Athens. One of the other two LLCs, 248 Grove, operates out of Jefferson, and the third, 310 Price, is listed as operating out of Santa Rosa Beach, Florida.

Of the six individual property owners listed in the lawsuit, accounting as a group for multiple residential properties across the county, two have home addresses in metropolitan Atlanta and one lives in Watkinsville.

A major sticking point at the Feb. 6 commission meeting where the amendment was approved was a so-called “sunset” provision that would shut down existing STR properties within a maximum of two years if they have not complied by that time with the amended ordinance.

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After listening to lengthy public comment from STR owners and operators – and from David Ellison, the local attorney now representing the STR owners in the lawsuit – along with residents complaining about the deleterious effects of crowded STRs on their neighborhoods, commissioners embarked on their own discussion.

After lengthy deliberations, commissioners found themselves one vote short of enacting the amendment, and after a subsequent motion, one vote short of rejecting the amendment. At issue for some commissioners was the potential for the county to be sued over the targeting of STRs, and consideration of the amendment was also complicated by the fact that Commissioner Allison Wright, who owns an Airbnb STR, recused herself.

With a vote of 5-4 to adopt the amendment, and a subsequent vote of 4-5 to reject it, commissioners fell short of both the six votes required to approve a zoning ordinance amendment, and the majority vote required to deny an amendment. Also, the fact that Wright had recused herself prevented a tie vote, which would have allowed Girtz to vote to break the impasse.

“So we don’t have direction,” Girtz said as both votes fell short, “and so what we’re going to have to contemplate is a direction, a move.” Noting then that the commission hadn’t taken a break, as is often the case for lengthy commission meetings, Girtz called for a 15-minute recess.

It was during that time, the STR owners and operators allege in the lawsuit, that Girtz and the commissioners discussed the proposed amendment out of public view, and without any audio or video recording.

The lawsuit also notes that Girtz and the commissioners did not enter into “executive session,” holding no vote to go behind closed doors for discussion. State law allows local governments to hold executive sessions in only limited circumstances, broadly including legal matters, property acquisition, personnel issues and cybersecurity planning. Before going into executive sessions, an affected government body must delineate the reason for going behind closed doors, and then vote to hold the executive session.

After the break, which extended for more than 23 minutes, commissioners voted quickly and unanimously to approve the STR-related amendment to the zoning ordinance, with Wright also recusing herself from that vote.

Noting that the unanimous vote was “inconsistent with the Mayor and Commission’s prior deliberations” the lawsuit contends “the change in the vote was clearly the result of the private deliberations conducted in violation of Georgia laws requiring open and public meetings.”

The approval, however, came with an instruction from Girtz that the commission’s Government Operations Committee (GOC) “immediately” review the amendment for potential modification. Girtz also asked that any modifications to the amendment come back to the full commission within two months for commission consideration.

Since that instruction, the GOC has met twice, the latest session occurring on Monday. In both sessions, part of the discussion has focused on creating a so-called “relief valve,” for STR owners that would allow them to operate beyond the two-year “sunset” for non-conforming STRs to recoup the investment they have made in their short-term rental properties.

This article originally appeared on Augusta Chronicle: Short-term rental property owners are suing Athens-Clarke commissioners