DEL MAR — Nearly two-dozen property owners are seeking an appeal of a Feb. 14 Planning Commission ruling on short-term rentals.
In a letter to city council members submitted with the appeal request, Ralph DeMarco alleges three of the five members of the advisory panel “unreasonably and arbitrarily abandoned their quasi-judicial duty to consider legislative intent as required by law in determining whether” short-term rentals are an allowed use by ruling the code had to be unambiguous.
“We would like them to affirm the original motion made by Don Countryman and Nate McCay that short-term rentals are an allowed use,” Laura DeMarco said.
The appeal was based on a “failure to follow general rules of statutory construction, abuse of delegated discretion, unreasonably capricious and arbitrary erroneous conclusions, denial of due process, appearance of unfairness and undisclosed conflicts of interest.”
Efforts by the City Council to address rentals of less than 30 days have intensified during the past few years, mostly because home-sharing websites make bookings easy and the practice is becoming more commonplace.
Some residents say vacation rentals are causing an increase in noise, parking and trash problems as well as changing the community character. Others say they depend on the income and banning them in residential neighborhoods would violate their property rights.
A moratorium on any new units entering the market has been in place since April 2016, giving city officials time to collect data and research options.
Currently, 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.
The city’s general position is that vacation rentals are not a permitted use in a residential zone and are not consistent with the community plan.
In January council members asked the Planning Commission to interpret existing laws and the community plan to determine if that is accurate.
Countryman and McCay supported a motion that would allow the practice to continue since it has existed for decades without any effort to prevent it.
The motion, which failed 2-3, also noted that while the words “vacation rentals” and “short-term rentals” are not in the community plan, transient housing is acknowledged to exist without restrictions and similar intense uses such as day-care facilities are allowed.
But commissioners Ted Bakker, Philip Posner and Carmel Myers ruled that because the municipal code and community plan are ambiguous they were unable to make a determination.
According to the appeal, by insisting the code be unambiguous the commissioners “abandoned their quasi-judicial duty to consider legislative intent.”
“The notion that all Code has to be unambiguous is unreasonably capricious, absurd and an abuse of discretion,” and the commissioners “unreasonably declined to attempt to discern intent or give any weight to long standing administrative interpretation or the Community Plan in violation of established law,” it states.
Citing a possible conflict of interest, the property owners claim in the appeal that Bakker failed to disclose previous public comments he made in opposition of short-term rentals.
“Bakker’s prejudice against STRs … has created an appearance of unfairness in the minds of the public,” the appeal states.
Laura DeMarco also noted a failed 2010 initiative that sought to tax short-term rentals. Many people question how city officials could tax something they are now deeming an illegal use.
Additionally, she said banning vacation rentals would “pull the welcome mat out from under the feet” of visitors, especially now with the Del Mar Racetrack hosting the Breeders’ Cup for the first time this November.
“All of the hotel rooms in Del Mar and the outlying cities are booked,” she said. “Where are these people going to stay?”
Some residents have also asked for data that supports a change in community character and an increase in public nuisance complaints. There have been three such complaints submitted in the past six months via links on the city website.
Council members are scheduled to rule on the appeal at the March 20 meeting.