“We had an ordinance in place now which did need some revision, and some of those revisions have been made,” said Councilor Darin Forbes. “But, I think as we’ve went through this tonight and realized that probably 20-plus things need to be clarified, changed, rewritten, I don’t see how we can even send it to our legal counsel until those things are done. So, right now, at this point, it definitely can’t be on the agenda for next month.”

Wilmington_draft_STR_law

The draft was written by Wilmington’s STR committee, a 12-member citizen committee appointed by the town council in April 2023. If passed by the town council, the STR law would amend the town’s land use code, replacing the current STR amendments passed in August 2021.

This meeting was not a public hearing; the draft must first be reviewed by the town attorney and revised before it can become a proposed local law. After the law is officially proposed, the town council will hold a public hearing on the final language and subsequently vote to adopt it. This special meeting, which Smith characterized as a “work session … with questions” was to solicit preliminary feedback from both council members and the public.

Smith told the News on Wednesday that he agreed with Forbes’ assessment of the situation and expected that edits would be made to the draft before it was sent to the town attorney and brought before the council officially.

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Septic inspections

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The most lengthy debate of the evening surrounded section 3J of the draft, which requires an STR owner to include a septic inspection report in both their application for an STR permit and upon renewing that permit. Under the current law, STR permits expire after two years. The draft proposes that permits expire after one year.

STR committee member Rarilee Conway said the committee’s intent for section 3J was to ensure that a home’s occupancy is not exceeded by STR owners or renters, a concern that Councilor Tim Follos echoed.

“A lot of this conversation is circling around the issue, the fact that it’s fairly common for these operations to include two bunk beds and a futon in one bedroom,” he said. “Sometimes these operations invite more people into what had previously operated as a single-family home.”

A home’s septic tank size is determined by its number of bedrooms. For a home with two or three bedrooms, the minimum septic tank size is 1,000 gallons, while a home with six bedrooms would need a minimum 1,750-gallon tank. In some STRs, the living area can double as an additional sleeping area to accommodate larger groups.

Forbes said that the STR application addresses this issue, rendering 3J redundant.

“Our code enforcement officer’s job is then to go to the residence and verify all of these things, and if they’re saying it’s three bedrooms and when he gets there and finds out it’s five bedrooms with a 1,000-gallon tank, it’s his job to say, ‘You know what, I’m not going to give you a permit for five bedrooms because you only have a 1,000-gallon tank,'” he said. “Because of those things being addressed on the application, a lot of that stuff is already going to be taken care of before it ever gets to this point.”

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Complaint enforceability

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Smith said section 4D of the draft, which addresses STR complaints and noise and smoke violations, would be both difficult to measure and enforce.

This section reads in part: “Neighbors within a distance that noise, smoke or anything that may disrupt their sleep or conditions that are normal for them shall notify (the owner, host or caretaker of the residence).”

“What I would like is … that we have standards written into the law that can be sort of verified, that aren’t subject to a lot of argument,” Smith said. “What is it that the town is going to learn and what’s the town supposed to do about it?”

To enforce noise complaints, the town would need to enact a noise ordinance that applies to all households and citizens, not just STRs and renters. This is also the case for any rules about campfires and smoke.

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Ownership

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The council also discussed changing section 3D, which makes STR permits non-transferable except in instances of familial transfers. It explicitly prohibits the transfer of an existing STR permit in the case of a change in STR ownership, even in the case of the owner transferring the ownership of the STR to their own LLC.

“If I own a rental unit and I’m basically changing it from my name to an LLC because I don’t want liability on me, nothing’s changing,” Forbes said. “It’s still me that owns the LLC, it’s still me that’s the owner, so why would I have to apply for a new permit at that point?”

Smith proposed that the council incorporate the term “beneficial ownership” into 3D. “Beneficial ownership” means a person or people who own something, even if that thing is technically under the control of a company. In the scenario Forbes described, the beneficial owner of the STR does not change, and according to Smith’s suggestion, that person would not have to apply for a new STR permit after transferring the STR from their ownership to an LLC.

He added that this would address a loophole in the current draft in which a person could exceed the maximum amount of STRs they’re allowed to own by putting them all under the ownership of different LLCs.

The draft proposes that Wilmington residents be limited to owning two STRs each and non-Wilmington residents be limited to one. The permits issued before the enactment of the law would be grandfathered.

Follos said that the town attorney would likely take issue with this section, as the United States Court of Appeals struck down a similar rule in 2022.

“The case Hignell-Stark v. City of New Orleans, a fifth-circuit court case, found that it wasn’t legal to differentiate (between residents and non-residents for STR caps),” he said. “The court, in its infinite wisdom, found that it was a burden on interstate commerce.”

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Next steps

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Smith said on Wednesday that the STR law will likely be on the council’s March agenda, though he was not yet sure what kind of action would be taken.

“We’re trying to maybe cut down the number of meetings this’ll take,” he said. “We’re starting from a law that’s already on the books, and we don’t need to redo the whole thing, perhaps. So the sense is, are we making changes to that part of the law? Can we streamline that?”

He added that, based on conversations with STR committee members, much of what was reviewed on Feb. 6 was “food for thought for the town council, aspirational in a way.”

“It wasn’t presented to us as a ‘Let’s go ahead and vote up and down’ (draft),” Smith said.

Wilmington is among a number of local municipalities, including Keene, which are drafting or tweaking their STR regulations as the rise in popularity of STRs exacerbates the local affordable housing crisis. The town of North Elba and village of Lake Placid adopted STR regulations in 2020 and the village of Saranac Lake followed in 2023.