DEL MAR — Asked by the City Council to determine if, under the municipal code and community plan, short-term rentals are allowed in residential zones, planning commissioners at the Feb. 14 meeting determined in a 3-2 vote they could not do so because the use is not defined.
“We were asked to interpret something that isn’t there to interpret, and therefore we kick it back to where it came from,” Philip Posner said. “Give us something to interpret because we’re not miracle workers. We can’t work on something that doesn’t exist.
“There’s nothing in the code that addresses short-term rentals, period,” he added. “If we can’t find what we’re asked to do, how can we do it?”
Commissioners Don Countryman and Nate McCay disagreed.
McCay said “transient housing” is the wording used when the community plan was created in the 1970s because the term “short-term rental” likely did not exist then.
“I suspect we’re getting tripped up by the fact that the language has changed even though maybe … the concept hasn’t,” he said, adding that the plan states there was a comparably larger percent of transient housing in the North Beach area.
“It doesn’t say that that’s the only place where there’s transient housing … (which) implies to me that there was transient housing in other districts as well,” McCay said.
He and Countryman noted that transient rentals have been allowed in Del Mar for more than 50 years. They said they are not aware of any code enforcement attempts to prevent them.
“It’s been allowed,” Countryman said. “They’ve administered it that way so it’s allowed.”
No code language exists prohibiting the practice and nothing establishes short- or long-term rentals as a business, he added.
“They were legal because they existed and nobody chose to do anything about them,” McCay added. “If you’re saying they’re illegal, what day did they become illegal?
“If you can’t point to a specific time when something became illegal, then where is the notice to the public … that it has become illegal?” he added. “There’s no event that’s made them impermissible.”
He and Countryman also noted similar uses of equal or greater intensity, such as day-care and community-care facilities, are permitted.
Additionally, Countryman said the ability to rent one’s property is a fundamental right and there is nothing in the code that limits the length of the rental.
McCay also said the community plan states it is important to promote and preserve the retail base of Del Mar, which short-term rentals do by bringing visitors into the city. He and some of the speakers also noted a failed attempt a few years ago to tax vacation rentals.
Rentals of 30 days or less have been occurring in the beach city for decades. The practice has increased significantly in the past few years, mostly because websites such as Airbnb and Vacation Rental by Owner have made bookings easier.
Short-term rental owners say a total ban would violate their property rights, deprive many of needed income and financially hurt local businesses and restaurants. Most support allowing them with commonsense regulations in place.
Opponents say the constant turnover is changing community character and causing an increase in traffic, parking, noise and trash problems. They want vacation rentals banned in residential zones.
City officials have been trying to find a solution for about two years. While doing so, a moratorium on any new units entering the market has been in place since April 2016. Last month they voted to have the Planning Commission weigh in before moving forward.
Currently, none of the zoning districts define or list short-term rental businesses as an allowed use.
According to city staff, Del Mar has a “permissive” zoning code, which means that unless a use is expressly allowed it is not legally permitted. However, that is not stated in the municipal code.
“If it doesn’t say that, maybe it isn’t,” McCay said.
Before making their determination, planning commissioners read through more than 50 emails, nearly all of which support short-term rentals. One of the three opposition emails, however, was signed by 83 residents.
At the Feb. 14 meeting they heard more than an hour of public testimony, during which all but one of the nearly 30 speakers said they support short-term rentals.
McCay said whether or not the community wants short-term rentals is “irrelevant.”
“They are allowed now because they were allowed before and nothing has changed,” he said.
Posner said he didn’t completely disagree with Countryman and McCay. But the commission was not tasked with “going by history or what’s good for business,” he added.
“I don’t see it to analyze,” Posner said. “I can’t say OK.”
After another hour of discussion, the commissioners initially voted 2-3 that short-term rentals are an allowed use in residential zones.
In March or April, staff will present the decision to the City Council members, who will decide what to do next.