DEL MAR − Based on their interpretation of the municipal code and community plan, four council members determined short-term rentals are not an allowed use in residential zones except residential commercial under certain conditions.
“But those in existence will not be shut down,” Councilman Dwight Worden said. “We’re asking staff not to go out and enforce on anybody unless they’re in violation of the moratorium.”
Mayor Terry Sinnott was the lone dissenting vote when the 4-1 decision was made after a nearly four-hour discussion at the April 17 council meeting.
Property owners in the beach city have been renting their homes for less than 30 days for more than 50 years, mostly during summer and the horse-racing season at the Del Mar Fairgrounds.
Historically the rentals were for a week or two at a time. Many say it helps them afford their homes, with high property taxes and maintenance bills, and provides business for local shops and restaurants.
Opponents say the high turnover rates, which have increased thanks to online booking sites such as Airbnb, are changing the community character and causing more traffic, parking, trash and noise problems.
Council members have been trying to address the issue for years, including an effort in 2010 to subject them to the transient occupancy tax currently paid by hotel visitors.
A moratorium on any new units entering the market was adopted in April 2016 to give city officials time to collect data and research options.
None of the zoning districts define or list short-term rental businesses as an allowed use.
According to a staff report, 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 anywhere.
“You do not need your code to state it is or isn’t permissive,” City Attorney Leslie Devaney said. “It simply is permissive by virtue of the construction of the … code.
“The word short-term rental is not in your code,” she added. “You can determine whether or not … it’s consistent with an allowed use in the code. That’s what a permissive code means.”
Earlier this year the City Council asked the Planning Commission to determine if, under the municipal code and community plan, short-term rentals are allowed in residential zones. In a 3-2 vote, the members said they could not do so because the use is not defined.
Two appeals − one from each side of the issue − were filed, which led to the recent public hearing.
“The community plan painted a very detailed picture of Del Mar at the time of its adoption (in 1976),” said Robin Crabtree, who spoke on behalf of 103 people who signed a petition opposed to vacation rentals in residential neighborhoods.
“While it described some types of transient use, they were clearly not anything like the internet-driven, high-intensity and high-turnover uses that have recently started to radically change the character of our neighborhoods,” she added.
“Lack of enforcement, even over a long period of time, does not legalize conduct or uses that are not permitted,” Crabtree said. “Bicyclists have been speeding past our stop signs for decades, with little to no enforcement, but that was no defense when the sheriffs embarked on a round of ticketing.”
She also said while her group is “sympathetic” to the high cost of living in Del Mar, “it doesn’t serve as a waiver to allow operation of a business in a zone where it isn’t allowed.”
Representing a group of about 20 property owners who filed the other appeal, Robin Madaffer of Procopio law firm said that while the municipal code may be permissive, “it’s impossible to define every single possible land use in a municipal code.”
She also noted the California Coastal Commission supports short-term rentals because they provide affordable access to beaches. She said the agency doesn’t believe regulation outside a city’s adopted local coastal program is legally enforceable.
“Any interpretation that effectively bans short-term rentals I don’t think would pass muster with the Coastal Commission,” she said. “And with respect to whether or not Coastal has jurisdiction, I think we all know that Coastal Commission determines on its own whether it has jurisdiction.”
“Under no scenario is what we’re doing tonight subject to Coastal Commission review,” he said, adding that a ban on short-term rentals is also “not on the table.”
“Under no scenario is that going to happen,” he said. “There are a number of zones in this town that allow short-term rentals beyond dispute.”
Councilwoman Sherryl Parks said she made her interpretation based on the fact that businesses are not allowed in residential zones and “short-term rentals are clearly businesses.”
Councilwoman Ellie Haviland said the high turnover and “nonresident” behavior associated with vacation rentals are “much more akin to a hotel or motel, which is a commercial use.”
“Given the intensity of this use with technology today, I don’t know how you can see that as anything other than a commercial use,” she added. “And I don’t see where that type of commercial use is allowed in residential zones.”
Councilman Dave Druker noted that when people bought property in Del Mar, they “moved into a place that specifically has rules and regulations about how you can develop your property, how you’re going to interact with your neighbors, et cetera.”
“If you don’t want to do that, if you want to have this pure freedom of choice, there are places to live that you can move to,” he added.
Sinnott said his colleagues were “going down the wrong road” by trying to determine if short-term rentals are allowed under the community plan.
“I don’t think it is going to give us an answer,” he said. “STRs, or internet rentals, as I call them, did not exist in ’76, some 41 years ago,” he said. “It was not perceived as a residential activity because it did not exist as it exists today.
“So my thought is that we are dealing with a new animal that has come forward with new technology,” Sinnott added. “We should focus on solving the problem.”
Worden said the first step to finding a solution is to set a baseline by declaring that vacation rentals are not allowed in residential zones.
After that, he said, council should create rules and then “fashion a soft landing” for those whose businesses may be shut down.
“It won’t be fun for everybody but it’s the least painful of the options … and it’s the fairest way to do it,” he said. “Anybody who is legally in operation now because they predate the moratorium, we’re not going to come after you. We’re going to finish the process.”
That solution could include commonsense regulations, such as allowing people to rent out their homes for a few weeks a year while they are on vacation.
Laura DeMarco, whose husband filed one of the Planning Commission appeals, said she supports having some rules in place.
“I support traditional Del Mar short-term rentals, which are a week or more,” she said. “Those are usually families. I don’t support weekend rentals.”
DeMarco said she usually rents out her beach duplex for a few months at a time during the offseason and her family uses it a few times a year as well.
“One of the problems is people think whenever there’s a complaint in the beach community it’s a short-term renter,” she added.
She said comparing the lack of enforcement to bicyclists running stop signs “is extremely different than what we’re talking about” and a “false analogy.”
While DeMarco declined to say whether legal action is a possibility, she said the interpretation made by council members “is legally wrong.”