HARRISONBURG — At Wednesday’s meeting, after discussing the definition of primary residence, Planning Commission recommended that City Council deny a special-use permit for short-term rentals at 165 New York Ave.

Voting in favor of the denial was Commissioner Zanetta Ford-Byrd, Mark Finks, Brent Finnegan, Henry Way, Gil Coleman and Sal Romero, council’s representative. Kathy Whitten was absent.

Orange Sky Investments, which is owned by Wesley Smallwood and Dionne Jones, had already gone through Planning Commission, but City Council voted to send the application back to the advisory panel last month.

Staff and Planning Commission had originally opposed the the request because neither owner listed the home as their primary residence. After Smallwood identified the property as his primary residence, staff changed its recommendation to approval.

Staff later found that Smallwood and Jones were still using the property for short-term rentals without a permit, in violation of rules that went into effect on Aug. 1, and they were fined $100.

In sending the permit request back to the commission, council wanted an updated recommendation taking into account that the property was operating short-term rentals without a permit.

Jones said during the Sept. 11 council meeting that she kept operating after Aug. 1 was because she was facing a $500 fee from Airbnb if she cancelled her Aug. 24 reservation. She said most reservations are made six months in advance and the Aug. 24 reservation was made last year.

During an interview following Wednesday’s vote, she said the city sends out violation notices to people who have their home on websites like Airbnb.com even though they can’t be booked.

“Our rental has been up on the site but when you actually click on it, you can’t book a reservation and the city doesn’t realize it,” she said. “They don’t understand how Airbnbs work at all.”

The property is professionally managed by Evolve Vacation Rentals and the applicants sought to host up to 12 guests in the seven-bedroom home.

Finks took issue with Evolve Vacation Rentals managing the property.

“What makes [Smallwood and Jones] the operators when they aren’t doing the work and aren’t involved?” he asked, in regards to cleaning, handling guests and advertising.

Smallwood said that if a guest needs to get in touch with the operators during their stay, they call Evolve Vacation Rentals, which will forward it to Smallwood and Jones.

But during Wednesday’s meeting, the main issue for the commission was what constitutes a primary residence.

Wesley Russ, Harrisonburg’s assistant city attorney, said that legally, someone must be present at a residence for at least 183 days out of a year for it to be their primary residence.

Smallwood told the commission he has supporting documents to prove the New York Avenue house is his primary residence.

He said the Airbnb bookings are Friday through Sunday, and he will be present Monday through Thursday.

“So where will you be the other days?” Finks asked. “It’s hard to imagine it being your primary residence when you won’t be there a chunk of the time.”

Coleman said if he isn’t there during the lodging period, “you certainly have another home, so which one is the primary residence?”

Finnegan said that if the city decides to regulate the Airbnbs differently in the future, “this sheds light on ‘are we really taking people’s word on it being people’s primary residence?’”

He said there needs to be more consistent guidelines of primary residences.

The commission also recommended denial because it took issue with the maximum number of guests, but Jones said in an interview that there won’t be 12 unrelated guests at the home at one time.

“When people book to stay here, it’s families seeing their kid off to JMU or parents in town for a baseball game over at the park,” she said. “It’s a family of eight or 12, not just one or two.”

Jones said she has an issue with the city monitoring people renting out their homes altogether.

“This is the only city in Virginia putting people through this process,” she said. “Now there are people who have been operating for months or years requesting a permit and are being denied because a short-term rental ‘doesn’t fit the neighborhood.’ That’s not OK.”

Contact Laine Griffin at 574-6286 or lgriffin@dnronline.com. Follow Laine on Twitter @laine_griffDNR

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