Board lawyer declares Iron Mill Pond Island Vacation rental in violation of ordinance
The Manchester Township Board, on Tuesday September 12th, heard complaints from residents of Iron Mill Pond.
These residents are concerned that a cabin built on the island in the center of the lake by Andy Bobo has been marketed and rented for several years as a vacation getaway through the VRBO (Vacation Rentals By Owner) web service. Many groups of tourists, both small groups and large parties, visit the island throughout the summer months. Permanent lake residents find these tourists disruptive, and have asked the township to step in. The permanent residents point out that the mill pond area is zoned Rural Agricultural, and therefore maintaining a vacation rental on the island is not a permissible use of the property. The permanent residents all purchased their properties relying on the ordinance’s definitions of allowed uses, and they feel this new usage damages the value of their property, as well as diminishes their overall quality of life. Fundamentally, the permanent residents believe Bobo’s usage is illegal.
The township asked its lawyer to render his opinion. Jesse O’Jack, lawyer for the Township of Manchester, agreed that, in his opinion, the cabin on the island is not permissible under the township’s current zoning ordinances. O’Jack laid out two options for the board: they could either amend the zoning ordinance, or they would have to sue Andy Bobo so that a court could determine if his rental operation was in violation of the ordinance and should therefore be stopped.
Over the next month, the township will consider O’Jack’s opinion, the complaints of residents, and the defense offered by the island’s owners. At the next board meeting in October, the township will decide on a course of action.
At minimum, the township is contemplating whether or not to enter into a multi-year lawsuit against a landowner. The interpretation and force of our zoning ordinances will be on trial. But more broadly, this will set a precedent for if and how residents can use new short term online rental services such as VRBO and AirBnB. These decisions will set precedents for our future, and for communities like ours all over the state, and the nation.
The Island on the Pond
In the summer of 2013, Andy Bobo purchased the island at the center of the Iron Mill Pond. On 8 acres of the island, Bobo dug a well, and with the help of his father and a local architect, built a 1700 square foot cottage powered by solar panels and a generator. He has since established the cottage as a limited liability corporation for the island called AshKay Island, LLC. A pontoon to make the 2 1/2-minute trip to the island is included in the rental price.
This is not a rustic cabin. In a press release, Bobo describes the cottage in this way: “Working with architect Kyle Marsh, the cottage was designed from the ground up in a master bedroom and loft design that includes three Amish-made queen beds, one full bed, two singles, and floor mats for sleeping up to twelve. The cottage has two full bathrooms, laundry room, mechanical room, and full kitchen. Twenty-seven windows and doors bathe the interior in light.” After completing the home in 2015, Mr. Bobo immediately offered the property for rent through a website (http://ashkayisland.com/) and through the service VRBO (property 800299). The vacation cottage is also described in an MLive article from August 2016. So far, Mr. Bobo reports that guests have come from such places as Michigan, Illinois, Pennsylvania, Ohio, and Georgia.
Vacation Rental By Owner (VRBO) and similar services provide property owners with a reservation and payment system so that they can book guests, bill guests, and communicate with guests in a way that is essentially identical to how a hotel operates.
The whole logic of a traditional hotel (with lots of rooms assembled in a single building located in a district zoned for commercial use) is premised on the fact that managing lots of short term rental agreements with guests is hard, and money can be made when you localize all of those agreements. The whole job of a hotel clerk is premised on the difficulty of this kind of work. Hotels therefore make their money by operating on an economy of scale; i.e., you pay a small number of clerks to rent out a LOT of rooms, for a high price.
But now that database-driven websites like VRBO and AirBnB solve this problem, every room in every building is now a potential hotel room. (As an aside, our zoning laws DO allow for Bed and Breakfasts to be operated, but a key requirement is that the property owner LIVE at the Bed and Breakfast).
Communities across the country are struggling with the consequences of this technological change. You can rent out your house for a weekend, and that may be a good thing for you. But your neighbor could rent their house every weekend all summer, and you may not like that as much.
The Township Board meeting on September 12th was responding to complaints which originated from (but are not limited to) Iron Mill homeowner Jeffery Pigeon. On August 2nd of this year, Mr. Pigeon directed his lawyer, Frederick Lucas, to submit a letter of complaint to the Manchester Township Board. The letter asserts that AshKay Island fails to comply with Rural Agricultural zoning permitted uses:
Both my client’s property and Bobo’s property are located in the Township’s AR zoning district. Article 5.0 of the Zoning Ordinance lists the permitted and conditional uses allowed in the AR District. The Permitted Uses are listed in Section 5.02 and the Conditional Uses are listed in Section 5.03. Nowhere in either section is a hotel, motel or inn listed as either a permitted or conditional use.
The letter from Mr. Pigeon’s lawyer then goes on to ask that the township take action:
The purpose of this letter is to ask the Township Board to enforce its zoning regulations as they apply to Mr. Bobo’s property by seeking an injunction preventing him from using his property as a vacation resort in direct violation of the zoning ordinance. My client purchased his property relying on the Township’s zoning regulations, believing that the only uses that would be permitted in this area would be those set forth in the AR District. Instead, he now is living in close proximity to a resort with all of the problems attendant with a resort. His new “neighbors” are transients who have no connection to the area or neighborhood. The people visiting AshKay Island are on vacation and being on vacation they are louder and more less respectful of the rights of their neighbors than someone who is a permanent resident of the area.
After receiving the letter in August, the Township asked its lawyer, Jesse O’Jack to render his opinion on the matter at the September board meeting, and to advise the township on the options for action. Mr. Pigeon and those of his neighbors who felt as he did came to the board meeting to voice their concerns.
As a group, the residents felt strongly that the island cottage, which some called a “resort,” was a danger to their quiet rural life. For example, Charles Kumnick said, “On Iron Mill Pond, we have a very private, quiet lake and it is zoned agricultural and residential, and many of us like it just that way. We would like to keep it quiet and peaceful, and keep the zoning as is.”
Sandra Moore concurred by saying, “I live on the north side of the lake. I had guests over Saturday night and way into the morning hours, there were obscenities coming forth. It’s just not appropriate. There was a four and a five year old there, and we don’t really like to have them hearing obscenities being used. [AshKay Island] is on the water, so sound carries. That’s my biggest complaint.”
This view was also shared by Jeff Pigeon. He said, “Every day big parties, weddings, things of this nature, tend to bring a lot. Multiple pontoons, strange people, nobody knows what their intent is. And I know Andy is screening them, but Mrs. Moore, obviously, is hearing things in the middle of the night because there was a fortieth birthday party out there, and there was at least 6-8 cars. And there are at least 6 to 9, 10 cars down there every weekend on that parking lot. So there are lots of people going out there, lots of friends, and this isn’t a typical situation that you see every day. And he promotes this.”
Karen Kraus also expressed her concerns, both about the character of the guests, but also about Mr. Bobo’s care of the landscape: “I commend what you’ve [Andy Bobo] built out there, with all the solar and everything you’ve done, and you’ve said that you were a really good community person, but I didn’t find out from you what your intention was in building out there and renting it out. I’ve looked, and your place is beautiful, but I’ve not seen any control of the weeds. I saw your nice raft out in the lake, but I wouldn’t swim there. We take time to clean the area out by our place so that the fish have a place to breed, and then your people come and plop down and fish there. But you haven’t done the same thing. So I think you are going to have a place with such a beautiful website inviting people, that you might have wanted to let the rest of us know. And what are your intentions of expansion?”
But, in addition to the objective complaints about the nature of the cottage, residents were also upset by what they saw as Bobo’s initial deception in both his submission to the planning commission, and in his communications with them. Sue Sabourin said, “We are not against [Andy]. We welcomed him as a neighbor, and I know when he came up to my property and I got to meet his little girls, he said he was going to build a cabin so they could come out every once in a while on the weekends. I kind of believed that. And then it was not that long later I’m in the chiropractors office and they’re like,”Oh, yeah there is a website, and its a resort now.” And we were like, “Whoa!” I guess my concern is that I see it developing bigger, and now there are tree houses people can rent, and now all this other stuff. I am just concerned about what it will become in the future.”
Jeff Pigeon summed this view up by saying, “A lot of these people are here because of me. The one thing that most of them all tell me is that Mr. Bobo told them that he was just building this house for himself and his family. And that is a blatant lie.”
Resident Dave Hartley tried to clarify the core issue by saying, “My concern is just the legality of it. If it’s legal to rent a house, then it should be legal to rent a house. If it’s not, that then becomes the issue. I think we sometimes want to involve ourselves too much. If somebody has a piece of property and they want to do something and it falls within the zoning, within the legality of it, then that’s part of it. You can bicker back and forth about who likes what—I don’t like the way the goose craps on my boat when it’s on the water, but you know, I can’t sue the goose for crapping. It’s legal for him to poop in nature. So you gotta look at it that way as the legality of it, and not the feelings of it.”
O’Jack answered the essential question of legality by saying, “In my opinion, it doesn’t come within the definition of the zoning. […][Mr. Bobo’s] use is more transient than I think the ordinance allows.”
But O’Jack followed this opinion with a contemplation of what the board now faces. He said, “That’s a pretty simple answer, but the township based on my opinion can proceed how they want. They can have the planning commission reconsider what is appropriate for the zoning in the township. Or they can tell me they want to file a lawsuit, and in that case, you have to authorize me to file a lawsuit in circuit court.”
O’Jack went on to say, “If you want to do something, you are going to want to get it filed before too long, you don’t want to file it next spring. It’s not something I think the township should say, “Okay, we prohibit now, now we’re going to court.” I think the liability on that is greater. What you do is you let the court make the decision.”
The board then asked O’Jack to clarify how long a lawsuit would take. He replied, “That’s a lot of different issues, but a year or two years. It can take quite a while. It takes time to get on the schedule, it depends on a number of issues. I would be surprised if it was much quicker than a year.”
Bobo Responds, Leaving the Board with a lot to Think About
Andy Bobo and his lawyer Nicklaus Suino sat in the heart of the crowd, listening to all that was presented to them. Both Suino and Bobo had long responses to the concerns presented. They also both question the township’s right to enforce zoning ordinances that are, in their view, outdated.
Mr. Suino begins by praising Mr. Bobo: “I am a lawyer. Andy has been a great citizen of the township. He could have sub-divided the island into three acre parcels. He could have let dozens of boats launch from his easement. He could have turned the thing into a campground. He could have enforced the boundaries of his property which lead to the water’s edge and asked people to move their docks out from in front of their properties. But he didn’t do all of those things.
“In fact, AshKay has been great for the community. It has certainly brought me to Manchester more often, to spend more money, to enjoy the scenery of the rural area, and it has brought a fair amount of local business, as well as great positive local press for the community. But he is being asked to stop renting because, essentially, a definition of family that just could not survive in the modern court room.”
At this point, Mr. Bobo’s lawyer attempts to rebut O’Jack’s interpretation of the zoning ordinance. O’Jack’s opinion rests on how “single-family use” is defined in the ordinance (read O’Jack’s full opinion by clicking here). O’Jack addresses several aspects of the definition, including the amount of time any given family would stay at the cottage, and determines that weekly or daily rentals are more “transient” than is allowed in the ordinance. Mr. Suino, responds to Mr. O’Jack’s opinion on the zoning definition of the nature of family itself.
Suino said, “The zoning ordinance was adopted around 1973, and as you all know and probably are not all happy about, the definition of family has changed tremendously since that time. Andy doesn’t discriminate against anybody. But under Mr. O’Jack’s reading of the law, if Andy were to allow anybody else to use the cabin, he has to ask if they’re married, related by blood, adopted … he dare not ask if they’re transgendered, if they have unusual sexual preferences, or anything else … and yet, if he does ask that question, he can be subject to a civil rights lawsuit, and of course, anybody else in the township who decides they want to rent their property out is subject to the same strictures.
“But in fact, Andy does rent the property out to one family at a time. For 36 weeks a year, his family uses it as a single family get away; for the other 12-16 weeks he does rent AshKay to one family at a time. That doesn’t mean they don’t sometimes have guests. But under Mr. O’Jack’s reading of the ordinance, you aren’t allowed to have guests. So is this board prepared to dictate how long property owners in the AR district can use their homes? Or how closely they have to be related? Or for that matter, how long you let someone stay in your home or rent it to them before it becomes okay under the ordinance? It just won’t survive judicial scrutiny. Is it a week, is it a month? How long before it’s okay?
“What if your job calls you out of town for six months, and you want to make a little extra money to pay your taxes? And you live in the AR district? Are you allowed to rent your home out? What about the thousands upon thousands of people in Michigan that rent their homes out under VRBO and similar websites?”
Andy Bobo followed a similar thread as his lawyer. Both affirm that operating a transient rental property was the purpose of AshKay island from the beginning. But both assert that the township has no say in this.
Mr. Bobo denies that the ordinance renders any judgement: “I own AshKay island. VRBO is common, around the state and around the country. VRBO didn’t exist 15 years ago. I looked at all 166 pages of ordinance before building. They’re all from 1973. No where does it state that I cannot have a home for rent, for my use, or for rent.
Mr. Bobo also denied that he kept any secrets from the township or from residents: “I have operated with VRBO for two years, and I have made it known that I have been doing so. And outside one comment tonight that cannot even be verified, I’ve successfully operated with no problems. The screening process that I have used has worked well, the guests have behaved themselves, there have been no police reports or any problems that I know of.
Finally, Mr. Bobo laid out what he sees as the stakes of this debate, both for him, and for the community at large: “Using this format I plan to pay for college, kids weddings, and retirement. The home is well built, using the frame work of ordinances. And it is overbuilt for my family use. It has been a good thing for the community. We are getting noticed. Money is being spent here. I’ve spent a great deal of resources to accomplish this project.
“Now that Mr. Pigeon has pressed this issue and threatened my family’s home, I will need to look to other means to make AshKay Island fit into the community.
“VRBO has helped thousands of families like mine pay their bills with very few negative consequences. The board’s decision tonight will not only affect me, but potentially hundreds of Manchester residents in the future because they will not be able to use this service to benefit their family in the event they want to do so. The questions I have are: Can I let people stay at my home without upsetting the board? Can I have a party on my own property without being hassled? How would you feel if a township board limited your rights to rent your home?”
Township Supervisor Gene DeRossett spelled out where the board will go from here. “There is a lot of information here for all of us to go through. We’ve received some things in the last couple of days from different people. We’ve even received information today from Mr. Bobo’s attorney, so I think, for myself, I need to spend some time and look at it, and digest it. I think we need to address it at our next meeting, after we have familiarized ourselves with what is in the paper work.”
The next board meeting will be October 10th, 2017 at 7 pm. The meeting will be held in the Manchester Township Hall at 275 South Macomb, in the Village of Manchester.