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County adopts new strategy in lawsuit against homeowner

By Randi Pierce

Staff Writer

Concerns over the effectiveness of legal procedures led Archuleta County to seek and be granted a voluntary dismissal of a lawsuit against a homeowner accused of improperly using a residential home for commercial purposes, but the county intends to refile the suit in another manner.

The lawsuit was dismissed at the request of County Attorney Todd Starr, who said the county originally failed to issue a mandatory notice to the homeowner before filing the lawsuit, and that the suit was filed in District Court instead of Archuleta County Court.

In May, the Archuleta County Board of County Commissioners filed the lawsuit, alleging that Derald Polston, owner of a residential property located in Lake Hatcher Park, is using the house as a vacation rental in a manner not consistent with the Certificate of Occupancy granted for the structure.

The original complaint stated the property was given a Certificate of Occupancy for a residential property (R3), which did not change following Polston’s purchase of the property and remodeling work.

The complaint alleged, however, that the property is no longer being used as a single- or two-family dwelling as the residential certificate allows, but is, instead, being used as a commercial lodging operation.

The complaint alleged that the property is being used as a, “Residential, transient, boarding house,” which falls under an R1 classification.

The county, through the first lawsuit, sought to stop the practice and have the property’s Certificate of Occupancy rendered null and void, along with other aims.

Subsequently, a motion to dismiss filed in August by Polston’s attorney, Marla Underell, stated that the use of the home is allowable and consistent with the practice of hundreds of other owners who use their homes as short-term vacation rentals.

In that motion, Underell noted that Polston’s home was deemed a Single Family Residence after two separate remodels/additions to the home, and the use of the home follows that use and has not changed since Polston bought the home in 2004 — used by Polston and his family, as well as being rented as a vacation rental.

“However, this does not mean the BOCC can have this property declared a commercial building or a motel, hotel or transient boarding house and as a consequence have the Court revoke Polston’s CO,” the motion stated, adding that there is no county code prohibiting the use of the home as a vacation rental.

As litigation on the matter proceeded, Starr said he was speaking with another county attorney about similar issues in that county when he realized some of the steps he gave as advice could apply to the Polston case and that Archuleta County should reposition itself.

So, in late August, Starr filed a motion to dismiss the lawsuit in order for the county to change two aspects of the lawsuit — sending the homeowner a notice of violation and filing the suit in Archuleta County Court versus District Court.

“I think it’s better and provides less room for appellate problems,” Starr said of the dismissal request.

An objection to the order to dismiss the case by Underrell states that, “The Court should particularly consider this approach where, as here, the Plaintiff has noticed dismissal and is now merely seeking to start over in another forum. These actions have, and will, cause the Defendant substantial prejudice, time, cost and fees.”

On Sept. 10, however, District Court Judge Gregory Lyman dismissed the case without prejudice and without awarding any attorney’s fees to the defendant.

Now, Starr said the county will issue the homeowner a notice of violations, to which Polston will have 10 days to respond. If Polston does not respond, the county will file the suit in Archuleta County Court (where statute indicates it should be filed).

“We’re taking one step sideways, then moving forward again,” Starr said.

Despite the repositioning, Starr said he thinks the county could have continued with the lawsuit in District Court, and that, despite indicators in statute that such cases “shall” be filed in a county court, other parts of statute indicate that other remedies may be used — something Starr believes could have been a toehold for the county to move forward in District Court.

“It doesn’t serve the interest of the county to leave us open to an appeal down the road,” Starr said.

randi@pagosasun.com

This story was posted on September 13, 2012.