A different perspective on STR in Big Sur

Your recent interpretation memo did not cite to any particular code section, to justify your statement (and the County’s position) that short-term rentals are “prohibited” inside the Coastal Zone. If the County’s position is based on the two code sections cited by Mr. Rodriguez, I think that these sections are patently inadequate to justify the claim of a “prohibition” on short-term rentals. Your memo correctly notes that “long-term” rentals of residential properties are “not regulated,” and that therefore there is no restriction on persons undertaking long-term rentals. Within the Coastal Zone, “short-term” rentals are also “not regulated.” The code sections cited by Mr. Rodriguez treat both long-term and short-term rentals of real property the same. There is no legal basis for the County to say that short term rentals, thus, should be treated differently from long-term rentals, and there is no basis to claim that they are “prohibited” in the Coastal Zone while long-term rentals are not.

In the Inland areas, certainly, short-term rentals are prohibited, unless a permit is obtained. The original idea was that a similar system would apply in the Coastal Zone, but the County, in fact, never followed through. At some point, apparently, the County decided that it could have the benefit of a regulation of short-term rentals in the Coastal Zone without actually taking the trouble to enact an ordinance to regulate them. This is legally unsupportable – and is actually kind of outrageous.

My client is a “group,” and the members of the group that I have talked to, some of them professionals who were involved in the development of the 1997 ordinance, say that the County’s attempt to prohibit short-term rentals in the Coastal Zone is relatively recent. I don’t really know when such enforcement activities commenced, and if I am incorrect about past enforcement practices, I would definitely defer to your experience. Of course, that makes no difference on the legal point. If the County doesn’t have any legal basis to prohibit short-term rentals in the Coastal Zone, a past practice of telling property owners that short-term rentals are prohibited doesn’t provide the County with any authority to continue that practice. The County needs to cite an actual code section that says that short-term rentals in the Coastal Zone are regulated, or it’s clear that they are not (any more than long-term rentals are).

The Monterey County Vacation Rental Alliance has been trying to work, through Supervisor Potter’s office, to help develop an ordinance that could pass muster with the Coastal Commission, that would be fair, and that would regulate short-term rentals in both inland and Coastal areas in an effective way. Until the County has developed such an ordinance, and has obtained Coastal Commission certification, MCVRA is requesting that the County take the following actions: (1) stop telling members of the public that persons entering into a short-term rental of residential property in the Coastal Zone are doing something “illegal;” (2) stop the County’s so-called “enforcement” activities against property owners who are undertaking short-term rentals in the Coastal Zone. If short-term rentals in the Coastal Zone are associated with nuisance conditions, the County can enforce its ordinances against nuisances; if property owners are undertaking short-term rentals but are not complying with the County’s TOT ordinance, the County can prosecute them for that.

What the County cannot do (legally) is to seek to enforce a set of regulations that don’t exist. Short-term rentals in the Coastal Zone are “not regulated.” They are just the same as long-term rentals in that respect. As far as I can tell (and I do ask that the County provide me with a citation to any authority that I may have missed) there is NO basis in the County Code for the County to seek to impose penalties on persons who engage in short-term rentals in the Coastal Zone, simply because somebody in the County has decided that they don’t like short-term rentals. The County needs to operate according to a “rule of law.” In 1977, the County adopted a law on short-term rentals, but they did not take the steps necessary to make that law extend into the Coastal Zone. The County sent their ordinance to the Coastal Commission, and the Commission staff asked the County to consider some changes, and the County just dropped its efforts.

Eighteen years have passed, and the County still doesn’t have an ordinance for properties in the Coastal Zone. Until the County has such an ordinance, please stop pretending that the County can regulate or prohibit short-term rentals in the Coastal Zone without actually doing the work necessary to enact the required regulations!

Best to you.

Gary A. Patton, Attorney at Law
P.O. Box 1038
Santa Cruz, CA 95061
Telephone: 831-332-8546
Email: gapatton@gapattonlaw.com
Website: http://www.gapatton.net

~ by bigsurkate on July 27, 2015.

9 Responses to “A different perspective on STR in Big Sur”

  1. what an interesting interchange… wonder how something like this gets resolved… maybe not so much until the new ordinance being worked on is black and white enough that no one can question it?

  2. Perhaps Monterey County operates as a government by fiat instead of government by rule of law, citing as authority it’s descent from the King of Spain?

  3. Gary is great! I’ve known him since way back then and he has worked very hard for our County here in Santa Cruz.

  4. Impressive letter.

  5. To the extent I understand these opposing concerns, I’d tend to go with business of it not being illegal to do as one chooses with personal private property (barring outright outrage or established illegal activity such as cockfighting, etc) the assurance of which is getting scarce as hen’s teeth. Then misbehavior or criminality can be dealt with a 911 call claiming nuisance or endangerment, as suggested in the attorney’s letter.
    If it’s the sort of nettlesome twilight zone where one has to count on moral turpitude and common decency from one’s fellows (a somewhat evaporating societal certainty) then following through along that path might work better. Specifically, the kind of shaming practiced in early colonial days, stopping short of witch dunking and so on. A committee of local formidable Big Surites is formed and called to action when someone gets out of hand. A formal visit is paid and a letter delivered to the retards saying something like, IF you keep this up you will no longer be served at these following restaurants, sold groceries at these shops, allowed inside the library or inns, or be allowed to drive on Highway 1 until midnight, etc. until you get your act together. Every now and then, even in a free Republic, a little strong-armed communism in a tiny community goes a long way; some independence sacrificed for the common good.

  6. I ask, how many of you would want your “neighbor” to be a constantly revolving set of tourists? Maybe, if you live in town, you wouldn’t notice. If you live in Big Sur, you would. If commercial, short-term rentals in Big Sur’s residential neighborhoods haven’t been adequately regulated to date, then they should be.

  7. All of this lawyer talk is over my head – but I have been doing some reading up on other areas that have a “Permissive” code or ordinance and they all seem to hold up and defend what has been written into their regulations.

    The Vacation Rental Industry (Vacation Rental Managers, Realtor’s, and the STR Host) have really opened up my eyes again to the saying …….. “Believe only half of what you see, and nothing of what you hear” until you check out those “FACTS” being presented to you!

    A good example of this would be to check out our local Chapter of the MCVRA, the Big Sur Board of Economic Development (BSBED) and read about what they say or “quote” from our LCP, and mostly leave out. Than read up on what they say about the Conference of Mayors (its not about Big Sur) or our state for that matter. Read also the letter from Pacific Grove that says STR’s are good here, Homes that sat empty……Funny thing, our homes used to be filled with our community neighbors! So like I said on this STR subject a lot of what is said or written has nothing to do with Big Sur.

  8. I have lived in southern Big Sur for more than thirty years, and, as far as I know, I have never had a African-American or other dark-skinned property-owning neighbor. This is the land of rich White people, and they are the ones who can rent a $500+ room at Ventana, Post Ranch, etc.

    Airbnb and other similar short -term-rentals can make this area available to people of color and others with limited resources. I would love to see more cultural and racial diversity in the area. However, opponents of STRs are using “quality of life in Big Sur” as an excuse to keep the area exclusively for the rich.

  9. John, as with most things, there are positive and negative aspects of most things, and STRs are no exception. Here on the South Coadt, 2 of the 3 STRs I know about provide housing and employment to locals, which is a good thing. But make Big Sur available to people of limited resources? Have you checked the prices of SRTs? Some rival Ventana and Post Ranch, but few I’ve found are cheaper than some of our lower end resorts … Only camping fits that bill.

    bigsurkate

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