By: Lydia Crawley
The Parsons Advocate
Town of Davis Mayor Al Tomson has responded to the allegations raised by resident Craig O’Connor at a town meeting held January 24th. As previously reported in The Parsons Advocate on February 5th, O’Connor had raised concerns regarding an incident where Tomson was inside a house O’Connor was renovating and concerns over the legalities surrounding the town’s moratorium on short term housing. Tomson responded to the article and O’Connor’s allegations during a Town of Davis meeting March 13th.
Tomson addressed the meeting that he wished to provide additional information to the issues raised by O’Connor and reported in the article. “First, I didn’t know Craig O’Connor was going to bring up the things he brought up, but I want to give a little more information on both of those points,” Tomson said.
Of the incident involving entering the house under renovation, Tomson said he was not Mayor at the time of the incident. “The first one with regards to my going into his property without his knowing, I was not the Mayor at that time,” Tomson said. “I was a private citizen.”
Tomson said he was invited in by the crew to consult on the work they were undertaking at the time. “His employees that were working on the house asked me for advice and gave them advice as a neighbor. “I’m a West Virginia licensed Master Plumber and that is why they asked me,” Tomson said. “I gave them free advice which is the neighborly thing to do and that’s all it was from my perspective.”
Tomson also addressed the Attorney General Decision regarding a moratorium in Pendleton County that was referenced by O’Connor at the January 24th meeting. “The second item you brought up that we didn’t have any response to because it takes time for legal analysis was the Attorney General Decision that he was quoting with regards to Pendleton County putting in a moratorium without doing a comprehensive plan and zoning ordinance,” Tomson said. “And saying because they aren’t allowed to do it, we weren’t allowed to do it.”
Tomson equated the Attorney General Decision as “apples to oranges” in regards to the Pendleton County situation and the Town of Davis. Tomson said he then sent the document for attorneys to analyze. “When I actually read the opinion, I thought maybe it was a little bit of apples to oranges,” Tomson said. “Sent it off to the attorney to analyze and a group of attorneys looked at it.”
During the meeting, Tomson read from a legal opinion provided to the Town of Davis by Town Attorney Robert Chenoweth dated February 9th and provided to The Parsons Advocate by Mayor Tomson, Attorney Chenoweth writes, “In my opinion the Attorney General opinion is distinguishable from the situation in which the Town found itself when it initially adopted the moratorium.”
Chenoweth went on in the document to cite the case law he believes distinguishes Davis’ situation from that of the case in Pendleton County and the code section under which the Town issued the moratorium. “Specifically, the Town of Davis adopted the moratorium under its general powers set forth at West Virginia Code Section 8-12-5. At the time of adopting the moratorium, The Town of Davis believed it had authority to adopt a moratorium pursuant to authority other than West Virginia zoning ordinances and West Virginia Code Section 8A-7-5,” Chenoweth wrote.
Further in the memorandum, Chenoweth describes the case interpretation and its relevance to the Town of Davis’ position on the moratorium. Chenoweth wrote that West Virginia Code Section 8-12-14, “…gives municipalities plenary power and authority to require permits as a condition precedent to the erection, construction, repair, or alteration of a structure located within the municipal limits. Therefore…a municipality may adopt a moratorium on other authority, other than West Virginia zoning laws.”
Chenoweth wrote that the Town of Davis’ moratorium on short term rentals was created under the Town’s power over the rules for the transaction of business and government. “In this case, the Town of Davis issued a moratorium under and pursuant to its general power to adopt rules for the transaction of business and government,” Chenoweth wrote.
The memorandum by Chenoweth also addressed the length that a moratorium could be in affect. “In addition, the Hutchison court stands for the proposition that there is no specific time frame with respect to the length of time a moratorium, as long as the Town is acting under good faith, as opposed to maliciously, deliberately, and/or for vindictive purposes.”
In the memorandum, it is argued that the Town of Davis has acted in good faith in regards to the moratorium and that through the effort to regulate the issue with its work with the planning commission and comprehensive plan, as well as public input, geared at the enactment of a new zoning ordinance targeted at regulating short term rentals.
However, the memorandum while opining that no effective time length is stated under the case law, Chenoweth in the memorandum did state that the extension of the moratorium over two years could be considered a stretch. “It is probably a stretch to argue that the extension of the moratorium over two years after the moratorium was adopted is reasonable,” Chenoweth wrote. “The longer the moratorium goes on, without the exaction of a zoning ordinance, and/or building regulations, the more difficult it will be to argue against the moratorium being adopted for reasons other than good faith.”
Chenoweth in his memorandum recommended the Town of Davis enact a zoning ordinance as soon as possible. “Therefore, I would urge the Town of Davis to enact and implement zoning as soon as possible.”