Athens-Clarke lawyers reject allegations that commission violated open meeting law

Legal counsel for Athens-Clarke County is rejecting a contention that the recent amendment of county code provisions governing short-term rental (STR) operations should not be binding because county commissioners reached their decision behind closed doors.

The allegation that commissioners violated provisions of state open meetings laws is contained in a lawsuit filed last month by a group of nine STR owners, four of whom do not live in Athens-Clarke County, and some of whom have more than one STR property in the county.

The legal action seeks a sweeping review of the adoption of the ordinance amendment, as well as a declaratory judgment that the amended ordinance violates the U.S. and state constitutions, as well as state law.

For some time now, STRs — particularly those in neighborhoods close to the University of Georgia such as Five Points — have vexed full-time neighborhood residents.

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Popular as lodging for University of Georgia football games and graduations, and for community events like the annual Athfest music and arts festival, full-time residents complain STRs — many made available through third-party operations like Airbnb and Vrbo — bring unwanted traffic, crowds and noise into their neighborhoods.

A major issue for the STR owners now suing the county government is a new ordinance provision that sets a two-year “sunset” clause that would shut down legal non-conforming STRs two years after the county publishes a list of affected short-term rental houses.

Legal non-conforming STRs are short-term rentals that at one time were in compliance with local regulations, but have gone out of compliance with the development of new rules.

The idea behind the sunset clause is that it will give affected STR owners a chance to recoup their investment before those operations are effectively shut down. In the lawsuit, the STR owners contend the amended ordinance “does not compensate owners of legal nonconforming STRs for the termination of their STR use in RS districts.” RS is one of the residential zoning classifications in county code.

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Additionally, the lawsuit contends that the two-year sunset “does not permit owners or operators of STRs an opportunity to amortize their investment in the nonconforming use.”

The lawsuit’s allegation that a decision on the ordinance was reached in violation of state open meetings law is based on the proceedings at the Feb. 6 meeting of the mayor and commission at which the 9-0 decision was reached. Commissioner Allison Wright, who owns an Airbnb property, recused herself from voting.

After lengthy discussion following public comment from STR owners and counsel for the owners in the subsequent lawsuit, along with comment from discontented STR neighbors, commissioners found themselves unable either to approve or deny the proposed code amendment.

An initial 5-4 vote to adopt the amendment failed because six votes are required to approve an amendment. Subsequently, a 4-5 vote to deny the amendment failed because it did not get a majority vote.

Immediately after the impasse, Mayor Kelly Girtz, who does not vote except in the event of a tie, called for a 15-minute recess. Commissioners have a regular practice of taking a 15-minute break if their 6 p.m. meeting stretches beyond 8:15 p.m. They moved through the 8:15 p.m. mark on Feb. 6, with Girtz’s call for a recess coming at about 8:45 p.m.

“We don’t have a direction,” Girtz said after the failed votes, “so what we’re going to have to contemplate is a direction, a move. … We’re going to go ahead and take a 15-minute recess.”

A little more than 23 minutes later, the commission came back into session, with Girtz asking for “a fresh motion.” Commissioner Carol Myers made a motion to approve the amendment, with a provision that it be sent immediately to the commission’s Government Operations Committee (GOC) for further discussion.

That motion passed 9-0, and since then, the amendment has been in the hands of the GOC. At its meetings on tweaking the ordinance, the GOC’s discussion has ranged from establishing a procedure for STR owners to work with county government staff to set specific “sunset” provisions for individual properties, to use enhanced enforcement of existing county nuisance ordinances to more tightly control STRs, to declaring that no more STRs be allowed.

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None of those recommendations have come back to the commission for consideration, and based on proceedings at the committee’s April 15 meeting, it could be several weeks before the full commission sees any committee recommendations.

As far as the STR owners’ lawsuit is concerned, the alleged violation of state open meetings law gets top billing, ahead even of the owners’ constitutional concerns. The lawsuit goes as far as contending that Girtz and the commissioners “were observed deliberating the Ordinance without affording access to such deliberations to the Public.”

In its response to the lawsuit, filed April 15 in Athens-Clarke County Superior Court, the county denies that the mayor and commission were observed deliberating the ordinance outside of public view, and further denies the lawsuit’s allegations that the inconsistency of the votes taken before and after the 23-minute break “… was clearly the result of the private deliberations conducted in violation of Georgia laws requiring open and public meetings.”

Under state open meetings law, governing bodies can go behind closed doors into “executive session” for discussion of only a limited number of issues, including legal action being taken against the governing body, real estate transactions, and personnel issues. State law requires that, before going behind closed doors, governing bodies hold a vote that includes a statement of the reason for the executive session.

The attorney representing the STR owners in the lawsuit spoke at the Feb. 6 meeting, telling commissioners, “If y’all pass this tonight, you put property owners on the clock to take legal action.” However, there was no formal legal action pending against the county until the March 5 filing of the lawsuit.

In its answer to the lawsuit beyond its denials associated with contended violations of state open meeting laws, Athens-Clarke County denies the contention that a two-year sunset is an unreasonable time for terminating legal nonconforming STRs, and is inconsistent with “ordinary business and tax accounting practices.”

Additionally, the county’s response to the lawsuit denies that “there are less onerous means by which the public interest may be protected than a termination of STRs in RS districts.”

However, at Monday’s GOC meeting, Commissioner Melissa Link suggested that using ordinances already on the books, along with setting occupancy limits, limits on parking, and requiring the installation of security cameras at STRs, could be used to control STR operations.

Link was cautioned by county staff, however, that using ordinances outside STR regulation could prove problematic, particularly regarding potential issues with county enforcement personnel going onto private property.

This article originally appeared on Athens Banner-Herald: Athens lawyers reject allegations commission violated open meeting law