Short-term rental ordinance lawsuit affects Village of Volente

By LESLEE BASSMAN, Special to Four Points News

The Village of Volente will ring in the new on December 31 but ringing out the old issues with short-term rental regulations has proven to be challenging to leaders and residents alike.

Topping the issues facing the Village of Volente at the end of 2023 is ensuring residential compliance with the municipality’s short-term rental ordinance, a revised set of regulations requiring such owners to obtain a conditional use permit, with that process including a public hearing and notice to nearby homeowners, Mayor Tom Blauvelt said. 

“We’ve had some challenges with a couple of [short-term rentals] in the Village, where there have been complaints and excessive partying, and things of that nature, and neighbors not being able to have peaceful weekends,” he said. 

According to Blauvelt, the Village has approved four short-term rental applications in 2023 when new regulations went into effect, and denied two applications.

“We looked at each one of these uniquely and some work and some don’t,” he said of the short-term rental permit applications.

A previous ordinance from 2018 required conditional use permits to be renewed every odd year, in January, with those permits expiring in January 2023. 

“The previous permits issued were not done in a lawful manner that included public hearings,” Blauvelt said. 

Now, for conditional use permits that cover short-term rentals, the ordinance requires a public hearing through the Planning and Zoning Commission before it makes a recommendation to the City Council, with Council members voting on the permit, he said. The hearing requirements include posting notice of the meeting and notifying neighbors within 500 feet of the rental, he said. Once issued, the permit must be renewed annually.

“So, really, everyone ended up on a level playing field in January of 2023 because all of the previous permits had expired,” Blauvelt said of the revised short-term rental ordinance that went into effect in March. He said the Village conducted a town hall session to enlighten residents as to what was required of them as they sought to renew their short-term rental permits.

Kathryn Langer lives in a one-bedroom guest house on waterfront property she owns in Volente while renting out a three-bedroom home on the same one-acre tract. She said she’s been operating her property this way for the past seven years, renewing under the old provisions without issue. In August, Langer was granted one of the first short-term rental permits under the new regulations; however, she also manages a short-term rental two doors down, a home that has been denied a permit.

At the session, Council member Kit Hopkins said the job of the dais is to look at each application “on an individual basis,” with members commenting that required information was missing from Langer’s neighbor application.

Langer calls the new process “awful,” and vastly different from the prior easy permit renewal of paying $50 and filing a form with the Village office. For Langer, the new procedures—including providing knock boxes with keys that local fire departments can access, placement of fire extinguishers and clarifying restrictions–are extremely stressful since the rental serves as the primary source of income for the single mother of three children in college. 

She said she was taken by surprise when she saw the renewal changes online and received an email in April from the Village informing her that her short-term rental permit had expired, with the unit not being able to be rented without first obtaining a conditional use permit. 

“It would have been very simple for them to notify all short-term rental permit holders of these changes, but they did not,” Langer said. 

In a Zoom call with Blauvelt and then-City Administrator Lacie Hale, Langer said she learned what steps she needed to take to be operational and eventually received her short-term rental permit in August, after the ending of what Langer calls her “busy season.” But, the Council granted the permit with a requirement curtailing any outdoor activities after 10 p.m., a restriction Langer said is “unsustainable in the summertime.” She said she’s always allowed her guests to use the grounds until midnight quiet hours since the lake is busy in the summer evenings when the sun doesn’t set until 9:15 p.m.

“And no outdoor activity means someone can’t even go to grab their dirty dishes off of the grill or sit in the hot tub quietly,” Langer said.

In May, the Council denied a second application for a short-term rental permit for a 6,568-square-foot home on Jackson Street owned by Dr. Russell Subia and Michelle Villanueva following noncompliance with the previous ordinance and resident testimony alleging loud noise and partying late at night. The home includes a 10-person hot tub, two heated pools and, per Blauvelt, was advertised as accommodating 16 persons. It had been operating without a permit since 2018 and was denied a permit upon application in 2022. 

“It doesn’t attract a couple that’s looking to have a quiet weekend on the lake for their anniversary,” Blauvelt said of the rental. “It attracts a party for sure.”

The Odessa, Texas, couple was represented before the Volente City Council by attorney Brooks Landgraf who is also a state representative in Subia and Villanueva’s hometown when they applied for a permit in 2023, a second time. In March, when the couple’s second permit application was pending in Volente, Landgraf filed a bill to prohibit a municipality from enforcing any of its ordinances that govern short-term rentals and tailored the bill to apply to “only a municipality that: (1) has a population of less than 1,000; and (2) borders Lake Travis.” In essence, targeting Volente. However, the bill ultimately was postponed until after the legislative session, nullifying the measure.

In October, Subia and Villanueva filed a lawsuit against the Village of Volente, alleging the municipality’s short-term rental ordinance violates their federal and state property rights by creating a cumbersome process to obtain a permit to operate, allowing neighbors to arbitrarily veto such a permit, and providing a mechanism for Volente to exceed its regulatory authority. The filing asks the federal district court to permanently prevent the Village from enforcing its short-term rental ordinance. 

“I get what they’re saying but neighbors should have protection and their privacy and their rights to their property matters,” Blauvelt said.

J. Patrick Sutton, Subia and Villanueva’s attorney, told The Four Points News that Volente’s regulations “go too far.”

He said the permit process requires an applicant to satisfy numerous criteria, “both subjective and objective,” before going through multiple hearings to “get permission to exercise your right to rent for short terms.” 

“Instead of you presumptively having a right to rent, you presumptively now do not have the right to rent until you get city permission, and that’s backwards,” Sutton said.

He said the right to rent is a longstanding benefit conferred to landowners.

“Perhaps the worst thing the regulations do is allow neighbors, in essence, to veto someone’s rights to rent for short terms by merely making a complaint or testifying at a hearing that they object,” Sutton said. “And that is a flat out violation of constitutional rights; it deprives people of due process.”

He said other plaintiffs could be interested in joining the litigation but declined to address whether he has already spoken with specific individuals who want to be a part of the group bringing this lawsuit.

“Thus far, there are two plaintiffs,” Sutton said. “A common pattern in my cases out of state is that when other people know that someone has filed suit, they normally will want to join. So. it wouldn’t surprise me if other people come in because there are some other short-term rentals since it is a vacation-type community.”

Although Volente’s attorneys were granted an extension to respond to the allegations, Village attorney Ashley Darrelle Dierker told the Four Points News that her client will abide by the new deadline of December 15 and won’t be requesting a further extension. Although the policy of her Fort Worth law firm – Taylor, Olson, Adkins, Sralla & Elam, LLP – is to not comment on the details of a pending litigation, she said “the city is confident and we are confident that the regulations enacted by the city will ultimately be upheld despite the challenge.”

This year, the Village conducted a survey regarding short-term rentals, with the results reported in September showing 46 percent of respondents either “strongly supported” or “supported short-term rentals in Volente, with 54 percent of respondents either “opposed” or “strongly opposed.”

According to Mayor Pro Tem Tony Ruff, the Village recently hired a new code enforcement company and uses software to track or scan rental sites to aid in determining whether a short-term rental unit is operating in compliance with regulations.

“We have a procedure in place,” Ruff said of the Village’s short-term rental ordinance, adding that a citizen-filed complaint is an integral part of the regulation. Without such a filing, “we have nothing to enforce,” he said.

“We are going to be complaint driven,” Ruff said.

On December 15, the Village of Volente filed its response to the Subia and Villanueva lawsuit, requesting the Court dismiss the complaint. Look for updates on this continuing story.