Banner Elk City Zoning Code
SHORT-TERM RENTAL
§ 152.350 PURPOSE.
(A) The purpose of this subchapter is to regulate short-term rentals (STR’s) with the following goals recommended as key to preserving the health, safety, and general welfare of town citizens, protection of neighborhoods and property values:
(1) To clearly define short-term rentals.
(2) To clearly identify where short-term rentals are permitted.
(3) To establish basic safety regulations for visitors renting short-term properties.
(4) To protect neighborhoods from unwanted short-term rentals and the problems that arise as a result (parties, noise, parking, dogs, trash, etc.).
(5) To have a local contact to quickly and effectively address issues that may arise during a rental stay.
(6) To allow homeowners the opportunity to legally rent their dwelling units where permitted.
(7) To regulate short-term rentals consistent with authority given by the North Carolina General Statutes.
(8) The provisions of the section shall apply to the whole-house short-term rentals. This section does not apply to other types of transient lodging, such as hotels, motels, homestays, or bed and breakfast establishments.
(B) Therefore, the Town of Banner Elk hereby adopts the following regulations to govern short-term rentals (STR's) within the corporate limits of the Town of Banner Elk.
(Ord. passed 7-13-2020)
§ 152.351 DEFINITIONS.
For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
CODE COMPLIANCE VERIFICATION FORM. A document to be executed by a short-term rental owner to certify that the property complies with applicable zoning, building, health, and life safety code provisions.
DESIGNATED RESPONSIBLE PARTY. The local contact person responsible for responding to complaints or issues stemming from the use of the dwelling unit as a short-term rental.
GUEST. The person(s) renting a residential dwelling unit for compensation for fewer than 30 consecutive days.
HOMESTAY. The rental, for a period not to exceed 30 consecutive days, of a room or rooms within a private residence for compensation while the permanent resident resides on-site during the duration of the rental period.
HOSTING PLATFORM. An online platform that allows property owners to advertise a dwelling unit as a short-term rental and facilitates the booking transaction for accommodations between a short-term rental owner and a short-term rental guest, including, but not limited to, reservations and/or collection of payment for such accommodations on behalf of the short-term rental owner.
INCIDENTAL VACATION RENTAL. The listing of a rental of a residential dwelling unit for fewer than 14 days per calendar year. If a dwelling unit is made available for short-term rental for more than 14 days per calendar year, the owner is responsible for obtaining a short-term rental permit even if the property ends up being rented for fewer than 14 days.
NON-OWNER OCCUPIED. Owner is absent from the property and the entire property has been leased to the occupant for a specified period of time.
OCCUPANCY TAX. A tax collected by the Town of Banner Elk for properties who rent short-term for 90 consecutive days or less to each renter. The occupancy rate for the town is 6%. An occupancy tax form is required to be filed with the Tax Collector on the 20th of the following month of the end of each month's rental period along with payment details.
OPERATOR. The owner or any other natural person, company, or rental agency who advertises, the property for rent and/or who otherwise facilitates the use of the property as a short-term rental.
OWNER. The owner of record of the short-term rental property as recorded in the Avery County Land Records Office. The owner may be a natural person, or any form of business entity recognized by the State of North Carolina. If the owner is a form of business entity, the business entity shall maintain current registration with the North Carolina Secretary of State.
OWNER OCCUPIED. Owner remains on site while a portion of the property is being rented to another unrelated occupant and continues to occupy a portion of the property for their personal residential use.
SHORT-TERM RENTAL ZONING PERMIT ("STR" PERMIT). The authorization required to use the property as a whole-house short-term rental upon registration. The short-term rental zoning permit shall include a registration number. No person shall rent, lease, or otherwise exchange for compensation any portion of a dwelling unit intended for use as a short-term rental without first registering the property and securing a short-term rental zoning permit.
VRBO. Vacation Rental by Owner.
WHOLE HOUSE SHORT-TERM RENTAL ("STR" OR "SHORT-TERM RENTAL"). The rental lease of an attached or detached residential dwelling unit to guests for a duration not to exceed 30 consecutive days.
(Ord. passed 7-13-2020)
§ 152.352 APPLICATION PROCESS.
(A) Terms of STR permit.
(1) Short-term rentals are hereby recognized as an appropriate land use. STR's are a permitted use within the following zoning districts: R-1, R-2, R-1U, C-1, C-1P, C-2, M-E, M-U. STR's are prohibited in all other districts.
(2) An STR permit shall be assigned to each residential dwelling unit used as a short-term rental. STR permits shall be valid for a period of one year.
(3) On or after June 8, 2020, it shall be a violation of the Town Zoning Ordinance to operate a short-term rental without having secured a valid STR permit in compliance with these regulations.
(4) Applications for STR permits may be submitted with supporting documentation and fees in person to the Zoning Administrator or may be delivered via U.S. Mail.
(5) An STR permit shall be obtained for each dwelling unit that is to be rented for a period of less than 90 consecutive days to a tenant, unless the property is rented for less than 14 days in a calendar year.
(6) For purposes of this subchapter, authorized applicants are referred to as “owners” and are those persons authorized in the Zoning Ordinance to submit applications for zoning, special use, conditional use, or sign permits.
(7) In the event of a sale or other transfer of any residential dwelling unit holding a valid STR permit, the permit shall automatically expire.
(8) No permit is required for incidental vacation rentals.
(B) Application process.
(1) Application. In order to obtain an STR permit, the property owner shall submit an application along with the required supporting documentation and non-refundable application fee. The application shall consist of the following information:
(a) Name and contact information of the property owner, including telephone number, mailing address, and e-mail address. If the owner is a corporation, firm, partnership, association, organization, or other group acting as a unit, the owner shall provide the name of the entity set forth exactly as it is shown in its articles of incorporation; the mailing address, telephone number, and e-mail address of an individual who is the entity’s statutory agent, president, or managing individual; the state in which the entity is incorporated or registered; and the entity’s incorporation/registration number;
(b) The address of the residential dwelling unit to be used as a short-term rental;
(c) The address of all short-term rental properties located within the planning jurisdiction for which property owner already holds a valid STR permit;
(d) The name, address, telephone number, and e-mail address of a designated responsible party for the short-term rental, which shall constitute his or her 24-hour contact information;
(e) A site-plan showing the number of bedrooms and the location of the on-site improved parking area; and
(f) A signed acknowledgement of the maximum occupancy requirements for short-term rental properties.
(2) Supplemental documentation. Attached to and concurrent with the submission of the application described in this section, the property owner shall provide:
(a) A sworn Code Compliance Verification Form;
(b) Proof of general liability insurance indicating that the dwelling unit is used as a short-term rental;
(c) Proof that the property owner has authorized use of the dwelling unit as a short-term rental. This shall include a copy of the following issued in the owner's name: (i) the deed to the property, (ii) a recent mortgage statement (issued the previous two months, or (iii) the previous year's property tax assessment; and
(d) Proof of notification to the property owners within 100 feet of the STR that the residential dwelling will be used as a short-term rental. Proof of notification is to be provided in the form of a certificate of mailing. This is a certification by the United States Postal Service that a letter was mailed. The receipt of the certificate shall be stapled to a copy of the notification that was submitted to nearby owners. The notification shall include:
1. Street address of the proposed short-term rental.
2. A statement that the property owner is applying for an STR permit.
3. Name and contact information of the owner.
4. Name and contact information for the designated responsible party, if different from the owner.
5. Maximum allowable occupancy for the property.
(3) Grounds for denial or revocation.
(a) An application for an STR permit may be denied or revoked if:
1. The property owner submitted an incomplete application;
2. The proposed short-term rental fails to meet a specified standard; or
3. The short-term rental property has incurred more than three verified violations of this section during the preceding 12 months.
(b) The property owner may appeal the denial or revocation of an STR permit to the Board of Adjustment in accordance with the provisions set forth in § 152.260 of the Banner Elk Zoning Ordinance.
(Ord. passed 7-13-2020)
§ 152.353 OPERATION REQUIREMENTS.
The following operational requirements apply to all short-term rentals properties:
(A) Maximum overnight occupancy. The overnight occupancy of an STR shall not exceed two guests per bedroom plus two additional guests. The maximum number of guests in a short-term rental unit is limited to ten guests, excluding children under the age of three years of age. Bedrooms used in calculating occupancy shall be taken from the permit application as affirmed by the property owner, but shall not exceed the number of bedrooms listed on the construction permit application on record with the Avery County Planning & Inspections Department. For homes on a conditional or non-standard septic system, the maximum overnight occupancy shall be posted prominently within the short-term rental unit and shall not exceed the number of bedrooms for which are reflected on the property tax card for the Avery County Tax Office. The owner shall ensure that all listings and advertisements clearly set forth the maximum number of overnight guests permitted.
(B) Events. Special events, including weddings, receptions, and large gatherings, are not permitted in STR's. Owners of properties that have an overnight capacity of greater than ten guests, or owners who seek to advertise and use a dwelling unit for large events, are required to apply for a special use permit with the Board of Adjustment. At such hearing, the Board of Adjustment shall determine whether the proposed use is consistent with the harmony and character of the neighborhood, including its impact of noise, light, traffic, property values of surrounding properties, and any other factor deemed appropriate by the Board.
(C) Display of registration number. Owner must prominently display the registration number in all online STR advertisements.
(D) Display of responsible party. All STR's operating within this planning jurisdiction shall have a designated responsible party who is available 24 hours a day during all times that the property is rented or used on a transient basis. The name, telephone number, and e-mail address of the designee shall be conspicuously posted within the short-term rental unit. The designee shall reside within 20 miles of the short-term rental property and be available to respond to complaints within 45 minutes of the receipt. A designee's repeated failure to timely respond to complaints may result in the revocation of the STR permit.
(E) Noise. The amount of noise generated by the STR shall not disrupt the activities of the adjacent landowners, as regulated in the Town Code.
(F) Trash and recycling disposal. The dates and instructions for trash and recycling collection shall be the responsibility of the property owner in accordance with Chapter 94 of the Town Code.
(G) Parking. The owner shall provide adequate on-site parking, to include a minimum of one parking spot for every two bedrooms on an improved parking surface.
(H) Age requirements. The principal guest of a short-term rental unit shall be at least 21 years old.
(I) Minimum duration. The property owner shall not make the residential dwelling unit available to short-term rental guests for a period of less than overnight.
(J) The simultaneous rental to more than one party under separate contracts shall be prohibited.
(K) Signage. No signage other than property identification (house number and street name) shall be allowed.
(Ord. passed 7-13-2020)
§ 152.354 MISCELLANEOUS REQUIREMENTS.
(A) Records. A short-term rental owner shall retain a log-book dating back three years and, upon request, make it available to the local tax office. The log shall include the dates of rental periods and the nightly rate charged during each night of a rental stay.
(B) Advertisements. All advertisements or rental listings on online hosting platforms shall include the following information:
(1) Maximum occupancy requirements.
(2) On-site parking availability.
(3) STR registration number.
(C) Taxes. Short-term rental owners are responsible for paying the state sales tax and personal property taxes. Additionally, the short-term owner is responsible for reporting the transient occupancy tax as established by state and local law on the approved form. Occupancy tax forms are due the 20th of the following close of each month and are required even if the tax is paid by a hosting platform and is the totals reported are zeros.
(D) Inspections. The permitted property is subject to inspection by the Zoning Administrator and the Building Inspector as deemed necessary, and at other such times as deemed appropriate by the Zoning Administrator upon reasonable notice to the property owner.
(Ord. passed 7-13-2020)
§ 152.355 ENFORCEMENT AND REVIEW.
(B) Penalties and remedies for violations. The penalties and remedies for violations of this subchapter are set forth in § 152.999.
(C) Permit revocations. The procedures for STR permit revocations, including the appeal process are set forth in this Chapter 152.
(D) Operating without a permit. Any person who is found to be operating a short-term rental property without having been issued an STR permit shall be in violation of this chapter.
(E) Action for recovery of civil penalty. If payment of a civil penalty is not made, or if violations are not cured or corrected, within the time specified in the citation, then the matter may be referred to the Town Attorney for institution of civil action before a court of competent jurisdiction, including but not limited to obtaining injunctive relief against the offending party.
(Ord. passed 7-13-2020)
§ 152.999 PENALTY.
(A) (1) Whenever, by the provisions of this chapter, the performance of any act is prohibited, or whenever any regulation, dimension or limitation is imposed on the use of any land, or on the erection or alteration, or the use or change of use of a structure, or the uses within such structure, a failure to comply with such provisions of this chapter shall constitute a separate violation and a separate offense.
(2) (a) Unless otherwise provided herein, each violation of this chapter shall constitute a misdemeanor, except as otherwise provided by statute, and violations of such provisions of this chapter shall be punished by fine or imprisonment as by law provided. Each day any violation of this chapter shall continue shall constitute a separate offense, except as may be specifically provided.
(b) Violations of this chapter shall constitute either a misdemeanor or, at the election of the town, shall subject the offender to a civil penalty upon the issuance of a citation for said violation as hereinafter provided. The civil penalty, if not paid to the town within 15 days of the issuance of a citation, may be recovered by the town in a civil action in the nature of debt. Unless otherwise provided by a specific provision of this chapter, said civil penalties shall be in the amount of $500 for each violation and each day any single violation continues shall be a separate violation.
(c) In addition to the civil penalties set out above, any provision of this chapter may be enforced by an appropriate equitable remedy issuing from a competent jurisdiction. In such case, the General Court of Justice shall have jurisdiction to issue such orders as may be appropriate and it shall not be a defense to the application of the town for equitable relief that there is an adequate remedy at law.
(d) In addition to the civil penalties set out above, any provision of this chapter that makes unlawful a condition existing upon or use made of real property may be enforced by injunction and order of abatement by general court of justice. When a violation of such a provision occurs, the town may apply to the appropriate division of the general court of justice for a mandatory or prohibitory injunction and/or order of abatement commanding the defendant to correct the unlawful condition upon or cease the unlawful use of the property. The action shall be governed in all respects by the laws and rules governing civil proceedings, including the Rules of Civil Procedure in general and Rule 65 in particular.
(e) An order of abatement may direct that buildings or other structures on the property be closed, demolished or removed; or that any other action be taken that is necessary to bring the property into compliance with this chapter. If the defendant fails or refuses to comply with an injunction or with an order of abatement within the time allowed by the court, he or she may be cited for contempt, and the town may execute the order of abatement. The town shall have a lien on the property for the cost of executing an order of abatement in the nature of a mechanic’s and materialman’s lien. The defendant may secure cancellation of an order of abatement by paying all costs of the proceedings and, posting a bond for compliance with the order. The bond shall be given with sureties approved by the Clerk of Superior Court in an amount approved by the judge before whom the matter is heard and shall be conditioned on the defendant’s full compliance with the terms of the order of abatement within a time fixed by judicial order. Cancellation of an order of abatement shall not suspend or cancel an injunction issued in conjunction therewith.
(f) The provision of this chapter may be enforced by one, all or a combination of the remedies authorized and prescribed by this section.
(g) Any ordinances hereafter adopted by the Town Council, the violation of which shall incur a penalty shall specify whether the enforcement shall be pursuant to the civil penalty and/or criminal penal provisions of this section.
(3) (a) Upon determination of a violation of any section of this chapter by the enforcement official, the penalty for which is a civil penalty, the enforcement official of the town shall cause a warning citation to be issued to the violator. The enforcement official shall be the Zoning Administrator, or other such designee of the Town Manager. Such citation shall set out the nature of the violation, the section violated, the date of the violation and shall contain an order to immediately cease the violation. If the violation is in the nature of an infraction for which an order of abatement would be appropriate in a civil proceeding, a reasonable period of time shall be stated during which the violation shall be abated. The warning citation shall specify that a second citation shall incur a civil penalty, together with costs and attorney fees.
(b) An appeal from a warning citation shall be taken within ten days from the date of said warning citation to the Board of Adjustment. Except in any case where the ordinance violated, which is the subject of the warning citation, specifically grants to the Board of Adjustment other powers in considering appeals and such appeal is applied for, the Board of Adjustment in considering appeals of warning citations shall have power only in the manner of administrative review and interpretation where it is alleged that the enforcement official has made an error in the application of an ordinance, in the factual situation as it relates to the application of an ordinance or both.
(c) Where the enforcement official of the town determines that the period of time stated in the original warning citation is not sufficient for abatement based upon the work required or consent agreement, the enforcement official may amend the warning citation to provide for additional time.
(d) Upon failure of the violator to obey the warning citation a civil citation shall be issued by the appropriate official of the town and either served directly on the violator, his or her duly designated agent or registered agent if a corporation, either in person or posted in the United States mail service by first class mail addressed to the last known address of the violator as contained in the records of the town or obtained from the violator at the time of issuance of the warning citation. The violator shall be deemed to have been served upon the mailing of said citation. The citation shall direct the violator to appear before the Town Manager, or his or her designee, within 15 days of the date of the citation, or alternatively to pay the citation by mail. The violation for which the citation is issued shall have been corrected by the time the citation is paid; otherwise, further citations shall be issued. Citations are automatically considered a separate offense for each day the infraction continues until the prohibited activity is ceased or abated. A separate citation will not need to be issued for each day the infraction continues.
(e) Within 15 days from the date the first civil citation is served, the Town Manager shall have the authority, upon written request by the violator, to void the civil citation(s) issued to date and relieve the violator of any civil penalties due. The written request shall state the reasons why the violator believes that the civil citation(s) should be voided. Prior to any civil citations being voided, the violation for which the citation(s) were issued shall be fully corrected. The Town Manager shall use extreme discretion in voiding civil citations and such action shall be taken only under extraordinary circumstances. Such circumstances may include, but not be limited to, an error by an official of the town, civil citations not reaching the violator due to mail delivery difficulties and extreme weather constraints. After 15 days from the first civil citation being served, the Town Manager may only exercise said authority when correcting an error made by an official of the town. In those circumstances involving an error by an official of the town, the Town Manager may exercise said authority without a written request by the violator, but shall consider the recommendation of the official making the error.
(f) If the violator fails to respond to a citation within 15 days of its issuance, and pay the penalty prescribed therein or receive relief from the Town Manager as described above, the town may institute a civil action in the nature of debt in the appropriate division of the state’s general court of justice for the collection of the penalty, costs, attorney fees and such other relief as permitted by law.
(B) Each day that the site is not restored beyond the approved deadline for final removal, as per §§ 152.050 through 152.057 of this chapter, shall be assessed a civil penalty of $50 per day fine. Each day will be treated as a separate offense. If the violation continues for a consecutive 60 days, the town will then have the authority to cash in the performance bond and have the work performed.
(Ord. passed 3-14-2005; Ord. passed 7-8-2012; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 315)
(C) Each sign that is illegally displayed shall be subject to a civil penalty of $25 per sign per day for each day that the offense continues, plus court costs and attorney fees. The town shall have the authority to remove and impound any sign, without further notice, where any sign is creating a public safety hazard through placement in any street, state road or highway, right-of-way or other right-of-way, attached to trees, other natural features, fence posts, telephone and/or utility poles. The town will attempt to notify the sign owners by phone and/or first-class mail that the signs may be picked up after payment of the associated penalties within ten business days at Town Hall before the sign(s) are destroyed. The town will assess a $10 pick-up fee for each sign the town removes. The town shall impound such signs for a period of ten days. The owner of a sign impounded may recover it prior to the expiration of the ten-day impoundment period upon paying all penalties assessed. In the event a sign is not claimed within ten days of its impoundment, the town shall have the authority to dispose of such sign. In the event a violating sign requires special resources for its removal and impoundment, the town, or independent contractor secured by the town, shall remove the sign and the resulting charges shall be assessed to the owner and/or lessee.
(Ord. passed 3-14-2005; Ord. passed 8-8-2011; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 612)
(D) (1) Civil penalty. Any person who violates any of the provisions of §§ 152.150 through 152.170 of this chapter shall be subject to a civil penalty. The amount of civil penalty shall be $100, except as hereinafter provided. Each day of a continuing violation shall constitute a separate violation.
(2) Protected tree penalty. In addition to the above, the penalty for a protected tree as provided by the list prepared by the Tree Board shall be assessed as follows:
Circumference of Tree Removed or Damaged | Civil Penalty | Tree Replacement |
1.50 - 3.50 ft. | $800 | 3 inches in diameter |
3.51 - 5.50 ft. | $1,600 | 3 inches in diameter |
5.51 - 7.50 ft. | $2,400 | 3 inches in diameter |
7.51 - 9.50 ft. | $3,200 | 3 inches in diameter |
9.51 + ft. | $4,000 | 3 inches in diameter |
(3) Development conservation penalty. For proposed developments which remove or damage trees clearly marked for non-encroachment into the tree conservation area, the penalty will be $1,000 per acre per day of the development until the site has been replanted.
(5) Injunctive relief. Whenever there exists reasonable cause to believe that any person is violating §§ 152.150 through 152.170 of this chapter or any standards adopted pursuant to §§ 152.150 through 152.170 of this chapter or any term, condition or provision of an approved permit, the city may, either before or after the institution of any other action or proceeding authorized by this chapter, institute a civil action in the name of the city for a mandatory or prohibitory injunction and an order of abatement demanding the violator to correct the unlawful condition upon or cease the unlawful use of the property.
(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)