Compromise heading to council hearing despite city attorney’s misgivings
A compromise plan that would permit the short-term rental of San Diego homes, including investment properties, remains largely intact despite concerns raised last month by the City Attorney’s Office.
The proposal, authored by Councilmen Chris Ward, Scott Sherman, Mark Kersey and David Alvarez, has been revised slightly to address legal issues, but key provisions, including allowing owners to rent out up to three properties on a short-term basis, have not been eliminated.
As the council gears up for a hearing Dec. 12 to consider long-debated regulations governing rentals popularized by online platforms like Airbnb, Sherman released on Monday a revised version of the plan that is being supported by four of the nine council members.
While the draft ordinance reflects the input of City Attorney Mara Elliott’s office, as well as city and mayoral staff, some of the key provisions are still likely to inspire lively debate both among council members and vocal opponents of short-term rentals.
Unchanged are provisions that would allow owners to rent out a maximum of three properties on a short-term basis, while imposing a three-night minimum stay in San Diego’s coastal areas. In addition, newly acquired investment properties could not be immediately rented out for periods of less than 30 consecutive days. Under the proposal, owners would have to wait a year before converting such properties to short-term rentals.
Those three provisions remain areas of concern for Elliott’s office, acknowledged Barrett Tetlow, Sherman’s chief of staff.
“We removed most of the legal issues and we’re down to areas everyone agrees are policy calls, and we make policy calls all the time,” Tetlow said.
The draft ordinance released by Sherman is one of two proposals the council will consider at the Dec. 12 hearing. At the other end of the spectrum is a proposal authored by Councilwoman Barbara Bry, who says that homeowners should only be allowed to rent out their primary residences on a short-term basis for no more than 90 days a year.
The city Planning Department was prepared last month to present three options to the council for consideration, ranging from the most permissive to one similar to Bry’s proposal. Council members were also planning to discuss their own proposals.
However, just days before the scheduled hearing, Elliott’s office released a memo raising numerous legal questions about the two council proposals. Her memo prompted the council to cancel the October hearing and reschedule it for early December.
Elliott’s office said it could not comment Monday on the legality of the revised ordinance released by Sherman but offered the following statement:
“Our office has advised the Mayor and City Council of the legal risks associated with a range of proposed regulations for short-term rentals. Our goal is to ensure that whatever regulations the Mayor and City Council support are legal and defensible in court.”
In her Oct. 17 memo, Elliott concluded that some of the provisions in the council proposals raised questions of “equal protection” by imposing different regulations for different types of short-term rental hosts.
Bry’s office said Monday that its proposal has changed little because “we believe we have a rational basis for moving forward with our proposal as-is.”
Among the provisions that were removed from the proposal by the four council members were references to specific dollar amounts for required permit fees. Also excised were the fine amounts for rentals that violate noise and nuisance regulations.
Those would be defined by city staff once new regulations are adopted, Tetlow said. Both changes were made on the advice of the City Attorney’s Office, he noted.
For more than 2 1/2 years, San Diego’s elected leaders have been trying, without success, to agree to a plan for regulating short-term rentals. Public hearings have drawn huge crowds, divided between home-sharing hosts who argue they have the right to rent out their properties on a short-term basis subject to reasonable regulations and residents who have complained for years that noisy vacationers have deprived them of their once peaceful neighborhoods.
Councilman Chris Cate, who has been pushing for a permissive approach that he first introduced two years ago, said Monday he is generally supportive of the approach that Sherman and his three colleagues have taken.
“The places they’re coming from are in line with what we put forward 2 1/2 years ago,” Cate said. “It allows the activity to still occur while putting a large emphasis on enforcement.”
San Diego Union-Tribune