The Haines Borough Planning Commission will reconsider whether Viking Cove Guest Homes owners Kim and William Chetney are in violation of their vacation rental permit after Haines resident Mike Denker warned them in a 10-page legal-style memo of “potential legal liability” and “eroding confidence in local government.”
Borough staff cited the Chetneys for a violation of their conditional use permit after they reconfigured existing buildings to add three additional vacation rentals when their permit, issued in August 2014, limited them to three.
William Chetney told the commission during August’s public hearing that he built additional walls in his three existing homes to create separate spaces. The Chetneys now advertise six “guest homes,” each with a different name, on their Viking Cove website.
The commission found the Chetneys not in violation after a 6-1 vote at that public hearing and were set to certify their decision in September as a resolution. The planning commission decided that the Chetneys did not build additional structures, which was the intent behind their original permit limitations, but rather added rooms to existing structures.
Commission chair Rob Goldberg said during August’s public hearing that the issue came down to how “accommodation” is defined. “Is an accommodation an additional bedroom or an additional building,” Goldberg said. “…We didn’t want them to build other buildings. They haven’t. They’ve put bedrooms where there was empty space.”
In his memo disputing the commission’s findings, Denker said it “failed to enforce the permit’s clear stipulation that ‘no more accommodations be built.’ The PC failed to follow the “ordinary-meaning rule” of interpreting text when it found the word ‘accommodation’ undefined in the permit.”
No definition of “accommodation” exists in borough code. The ordinary-meaning rule states “when words or phrases are not specifically defined they shall be construed according to their common usage,” Denker said.
Goldberg reversed his opinion after reading Denker’s memo. “I don’t think any of us were aware of this ordinary-meaning rule,” Goldberg said. “That’s never come up before. The issue that stopped us last time is we don’t have a definition of accommodations in the code.”
Commission member Jeremy Stephens said the definition of accommodation remained too ambiguous to find the Chetneys in violation of their permit and that using the ordinary-meanings rule would not allow the Chetneys to “even remodel a rooms as they are building accommodations.”
“My comment is that an accommodation also means a ‘building’ and also involves ‘room and board.’ It also means ‘to settle or compromise,’” Stephens said. “The ordinary definition does not explain how a building is to be split into multiple accommodations nor is it the intent of the permit to restrict settling or compromising on issues.”
He said “accommodation” could have been interpreted as “compromise,” such as remodeling a bathroom if a guest didn’t like it.
Denker cited a treatise on statutory interpretation that states, “the words of a statute are to be read in their ordinary sense unless so construing them will lead to some incongruity or manifest absurdity.”
Denker said to use the definition of accommodation in terms of “compromise” didn’t fit the context of the Chetney’s conditional use permit, which stated “no more accommodations be built.”
“You cannot build that definition (compromise) so that’s an absurdity,” Denker said. “Regardless of whether we want vacation rentals or not, how many, I could care less. The thing we have to look at is what does that conditional use permit say. What does it mean in the context in which it’s being used? And then what are the facts as presented in the last meeting. It’s fairly clear.”
Borough planner Holly Smith made the original finding of violation and was surprised when the commission members zeroed in on the definition of accommodation. “You can stop right at the first sentence of that conditional use permit when it says only three vacation rentals are permitted and then the only thing you would have to do is look at the definition of vacation rental and then boom you’ve got your answer.” Smith said.
The definition of vacation rental is a private home that “is rented for periods 30 consecutive days or less, limited to a single guest or family at a time.”
Denker said the commission’s finding that the Chetneys are not in violation of their permit, “exposes the borough to potential legal liability…should the commission or planning staff apply the definition of ‘vacation rental’ as a room or apartment to another permit applicant. He added the decision “risks eroding the confidence in local government” because of the arbitrary nature of the decision despite the permit’s clear requirements and language.
The planning commission voted 5-1, with Stephens the dissenting vote, to reconsider their decision at its Oct. 19 meeting.