- Staff Report on Lack of Enforcement of STR Ordinance
- Planning commission advises clear policy on vacation rental enforcement – Monterey Herald
San Diego council votes to limit Airbnb rentals to primary residences only – The San Diego Union-Tri
Thousands of bedrooms being rented illegally in Monterey County as of July 2018
Some STR and Home Stay owners are willing to operate illegally
They have made the argument that they will continue to circuimvent the law if a new ordinance imposes costs or restrictions they consider onerous. For example, they have strenuously obkected to fees in the $6,000 range – less than two months profits.
The RMA – the agency responsible for enforcement – reports that they have no personnel to enforce the existing ordinances, nor the budget to hire contractors. ”
RMA has limited available staff resources to enforce codes.
“The RMA Code Compliance team consists of one, Senior Code Compliance Inspector and four, Code Compliance Inspectors II (CCI II) to over the entire County with one of the four CCI II positions funded with cannabis tax revenues to support that program.”
Noise and other violations often occur at nights and on weekends, and there is no place for neighbors to complain about difficulties with neighboring STRs that has a real time response.
On January 9, 2018, the Planning Commission directed staff to place an item on the January 31, 2018 Planning Commission agenda for the Commission to discuss and consider recommendations to the Board of Supervisors regarding measures to enhance short-term rental code compliance. Code enforcement decisions (whether to enforce, when, and how) are within the discretion of the County. Responsibilities to enforce codes are divided amongst various County Departments: Resource Management Agency (RMA) (land use, building and public works), Sheriff (abandoned vehicles), Health (water, wastewater, food, noise), and Treasurer/Tax Collector (taxes).
Given available resources, code complaints are addressed by priority on a scale from one to three. Priority one, the highest priority, consists of stated or presumed situations that may include an immediate threat to life, health and safety; Priority two includes situations not of an immediate threat to life, health and safety; but requires attention and Priority three, the lowest priority, are situations of objectionable contentions (e.g. House color, fence location, height of a structure, etc.). RMA code compliance priorities are established by RMA Chief of Building Services, who serves as the lead for the Code Compliance Section, following philosophy/direction and input of the RMA Chief of Planning (Zoning Codes), RMA Deputy Director of Land Use and Community Development, and as needed,
the RMA Director. STRs are typically classified as priority three). Priority three cases are handled as time allows in relation to staff caseload. staff’s assignments. An exception would be in a case where a STR has other violations that may threaten life, health and safety (e.g., unpermitted or unsafe structures; inadequate water or sewage). These would be considered priority one, and actively pursued.
RMA currently has 1,564 open Code Enforcement cases with 466 of those being a priority one case, 713 priority two and 385 priority three. There are currently 34 open code enforcement complaints for STRs within the unincorporated areas of the County of Monterey. A third-party service, Host Compliance, has identified 799 advertised STRs within the County of Monterey. In order to receive and utilize this data, the RMA would have to subscribe the service. Based on the information received from Host Compliance in comparison with the recorded entitlements (permits), there are approximately 20 permitted STRs on record. To address the unpermitted STRs would potentially increase open priority three caseload from 385 to 1,164.
Option not considered. Pass a ban on advertising illegal rentals, with hefty fines for doing so – just like City of Monterey and Carmel-by-the-Sea. They then go after the property owners for back unpaid TOT taxes. [And after Nov. 15, the owners will be on the hook not just for the back taxes for up to four years, but for all the fines, fees and penalties, too. Illegal STR’s down 90 percent in Carmel by Sea]
The record supporting the Planning Commission staff efforts heavily depends on documents produced In a citizen involvement phase. The selected citizens (not representatives) voted on various policy options. The staff has presented these findings repeatedly on the record as justification for various positions. However, these votes were predicated (in writing to participants) on strict enforcement with substantial and adequate staff allocated to do the enforcement. That means staff available nights and weekends when most of the worst violations occur.
Purpose of Ordinance:
-provide opportunity to access public areas of the county
-preserve the residential character of neighborhoods and zoning districts
-protect public health, safety, resources, and general welfare
-integrate economic opportunity with the preservation of the quality of life
-enforceable and ENFORCED BY THE COUNTY
-preserve neighborhood character
-solve existing problems
-beneficial ( ? ) county stress, not mine
-DOVETAIL WITH PENDING STATE LEGISLATION
FROM THE 5-11-2015 MEETING
-“DEDICATED ENFORCEMENT” “SHALL” BE AVAILABLE
San Diego council votes to limit Airbnb rentals to primary residences only – The San Diego Union-Tri
On June 19, 2018, the Board of Supervisors received a report from the RMA on STR code enforcement, and provided direction to staff to return on July 17, 2018 with more information pertaining to utilizing the third-party vendor, Host Compliance, to improve the Agency’s ability to address STRs which cause nuisances such as noise, trash, and parking congestion. At this meeting, the BOS highlighted a distinction between unpermitted STRs, which may be in noncompliance with existing land-use policy pertaining to transient occupancy, and nuisance STRs, which, in addition to noncompliance with transient occupancy permitting, may also violate County codes pertaining to noise, litter, and parking standards.
Staff recommends utilizing the 24/7 STR complaint hotline and web form offered by the third-party vendor Host Compliance to support code compliance for STRs which pose a nuisance to the community.
During a public hearing on January 31, 2018, the Planning Commission heard public testimony regarding STR activities. The two main concerns raised at the hearing were that community tension is rising due to increased STR activity, and that County staff’s limited resources prevent a robust code compliance response to STR complaints.
. . .
At this meeting, the BOS discussed the distinction between “unpermitted STRs” and “nuisance STRs”. Unpermitted STRs are those which are purported to violate existing County land use regulations relating to transient occupancy of residential property. Nuisance STRs are those which, in addition to noncompliance with transient occupancy permitting, may also violate County codes pertaining to noise, litter, and parking standards. The BOS specified that staff should focus its STR code compliance efforts on nuisance STRs and requested more information on how Host Compliance could be utilized as a third-party vendor for code enforcement.
. . .
The data analysis dashboard included in the Host Compliance web interface includes such valuable information as:
- · number of calls in the past 30 days,
- · calls by offending address,
- · calls by reporting party, and
- · call distribution by complaint type.
. . .
RMA consults County Counsel on code enforcement cases. Therefore, increases in Code Compliance for STR would directly impact County Counsel.
The hotline and web form could be added to the existing TTC contract with Host Compliance for $6,839. Additional costs would be incurred for any code enforcement activities beyond data analysis of the complaints.
The TTC’s current contract with Host Compliance includes sending compliance letters to “unpermitted STRs”, however, sending letters to “nuisance STRs” is not included. Staff received an estimate from Host Compliance that sending letters to nuisance STRs would cost approximately $3,000 per year.
Additionally, staff researched the cost of dispatching a response in real time to STR nuisance complaints, including contracting with a private security firm, dispatching Code Compliance Inspectors in an “on-call” capacity, and connecting complainants with the non-emergency number for law enforcement. Staff also researched certain implementation hurdles for the BOS to consider.
The cost estimates assume that responding to a STR nuisance complaint would take an average of two hours, followed by an additional two hours of in-office processing time to finish the case. The in-office processing time estimates are based on the fully burdened labor rate for Code Compliance Inspectors
II ($75.87/hr), however, this classification is being used for financial estimation purposes only. Should any of these options be pursued further, additional analysis would be required to determine the most appropriate classification of Code Compliance Inspector for the job.
Private Security Firm: Staff estimates that this policy option would cost roughly $245.23 per response, excluding the administrative costs of contract management. This estimate is based on an average alarm response rate of $46.75/hour, calculated across the four private vendors contracted with the County. It also includes two hours of the fully burdened labor rate for Code Compliance Inspectors II at $75.87/hr.
RMA Code Compliance Inspector: Staff estimates that this policy option would cost roughly $303.46 per response (four hours at $75.87/hr), plus the annual cost of providing on-call pay for nights, weekends and holidays, which is estimated to be approximately $16,641.30.
Sherriff’s Deputy: Staff estimates that this policy option would cost roughly $356.97 per response. This estimate is based on two hours of Sheriff’s Deputy fully burdened labor rate ($102.62) plus two hours of Code Compliance Inspector time ($75.87), however, additional time, and staff costs, may also be incurred by Sheriff’s Deputies for report writing and court appearances. It is important to note that in discussing this option with Sheriff’s Office staff, it was observed that the Sherriff’s Office is experiencing a staff shortage and thus more pressing criminal matters may need to be prioritized.
Any parcel found to be in violation of any code or ordinance can be assessed cost recovery fees of $180.00 per hour for RMA staff to bring the property into compliance. RMA can also recover costs for services contracted to bring the property into compliance. However, if a complaint does not result in the finding of a violation, RMA costs are not recoverable.
From the Consensus Position:
6. Effective and veriﬁable self-policing.
Violation Penalties, Fines, STR’s are a “Nuisance” etc.
16. The remedies provided by this [ordinance] are cumulative and in addition to any other remedies available at law or in equity.
17. It shall be unlawful for any person to violate any provision, or to fail to comply with any of the requirements, of this Chapter. Any person violating any of the provisions or failing to comply with any of the mandatory requirements of this Chapter shall be guilty of an infraction. No proof of knowledge, intent, or other mental state is required to establish a violation.
18. Any condition caused or allowed to exist in violation of any of the provisions of this Chapter shall be deemed a public nuisance and shall, at the discretion of County, create a cause of action for penalty pursuant to Chapters 1.22 of this Code, and any other action authorized by law.
19. Each and every violation of this Chapter shall constitute a separate violation and shall be subject to all remedies and enforcement measures authorized by the Monterey County Code or otherwise authorized by law. Additionally, as a public nuisance, any violation of this Chapter shall be subject to injunctive relief, disgorgement of any payment to the County of any and all monies unlawfully obtained, costs of abatement, costs of restoration, costs of investigation, attorney fees, and any other relief or remedy available at law or in equity. The County may also pursue any and all remedies and actions available and applicable under state and local laws for any violations committed by the STR/Home Stay rental activity or persons related thereto, or associated with, the STR/Home Stay rental activity.
20. For violations of short term/home stay rental codes, an Enforcement Official may issue to a responsible person an administrative citation that imposes:
AirBnB has aserted the right to advertise illegal rentals, and repeatedly litigated the point. At opening meeting, rep said “Ask forgiveness, not permission.” Already cheating, no reason to belive that wiull change. In SF xthousand listings went away, CBTS, 90% down. PC not proposing someone to monitor cheating on ministerial home stay permits.
For example, according to an article in Monterey County NOW, March 13, 2014 Land Lords; “Blake and Erika Matheson started doing short-term rentals in Pacific Grove in August of 2010, just months after the city passed the ordinance. They decided to fix up an in-law unit on their property. These days, it’s nearly always booked. “What started off being a few weekends became what it is today, where we have about three days off per month,” Erika says. They are not struggling to pay their mortgage, he says, it just seemed like a good idea, and it’s now something they enjoy doing. “It has significantly changed our cashflow, and our lives,” he says. “It’s appreciable.” This is a 90% occupancy factor and above the 71% for the licensed hotel industry.
There are 143,000 homes in Monterey County. At least 1,000 are already doing some form of STR or Home Stay. The average number of people in a home is 2.5 to 3. With tourists that number per home goes up. Host Compliance has documented additional guests between 3 and 6 per home. In Carmel Highlands 22 people stayed in a 6 room house. Another large home offered accommodations for 40 people. And with no barriers to entry, weak or nonexistent enforcement, and free advertising, the number of homes that might be involved goes way up.
In the Draft Ordinance ithe PC does not mention enforcement against cheating by Home Stay owners who get as ministerial permit.
What will the growth in the cheating part of the equation be?
Potential number of Home Stay locations = 143,000. If they follow the rules, there is an average of one bedroom per home that could be potentially rented. mIf they don’t, can be much more. How is this detect4ed or enforced? Who do the neighbors complain to?
Administration and Enforcement – Goal #9
PROVIDE FOR EFFECTIVE ENFORCEMENT OF THE LAND USE POLICIES CONTAINED IN THE COUNTY GENERAL PLAN
Administration and Enforcement – Policy #25
The Board of Supervisors will adopt and maintain an ordinance providing for vigorous enforcement of the County’s land use policies and regulations, and will provide an annual report on the status of the County’s enforcement efforts.
Administration and Enforcement – Policy #26
Citizen Attorney General Provision – Any person adversely affected by the violation of one of the County’s land use policies or regulations (including a provision of the County’s Zoning Ordinance, the General Plan, or the violation of any condition of a County land use permit) may bring an independent judicial action to enforce the County’s land use policies and regulations, or to enforce any condition of a County land use permit, naming as a defendant the person responsible for the violation. Should any such individual enforcement action result in a judgment in favor of the person bringing the action to enforce the County’s land use policies or regulations, the County hereby agrees to reimburse the person who was successful in such action for his or her attorney’s fees and costs of suit, as determined by the Court. Prior to bringing such an independent judicial action, a person proposing to do so must first provide the County with forty-five (45) days notice of his or her intention to file the action, and if the County files a comparable action within that period, and pursues such action to a judgment, then no such attorney’s fees or costs are chargeable to the County.
Cheating by STR Owners
- “Of particular concern to officials are the Airbnb hosts who lease multiple apartments, renting them out year-round and distorting their market value in a climate of scarce affordable housing. One Airbnb user who spoke with the Times provided a glimpse into how lucrative the scheme could be. Josh, who agreed to describe his business on the condition that his last name not be used because he was fearful of legal penalties, said he rents out five apartments in Manhattan. Each one earns about $100,000 a year, he said, totaling about half a million dollars annually before fees. Only one of the leases is in his name, he said. The other four are held by people he has recruited to sign the leases in exchange for a percentage of the rental income. The arrangement is illegal. The New York State Multiple Dwelling Law prohibits apartment rentals of less than 30 days unless a permanent occupant is there. Yet Josh said that he personally knew several others engaged in the scheme in New York City. 124 hosts, all of whom had a minimum of 10 listings on the site and were earning an average of $500,000 a year.” (“Hotels in Disguise”, New York Times, December 3, 2015)
- “. . . the agent’s relationship with Airbnb soon shifted from desperation to opportunism. Realizing the potential to exploit the difference between long- and short-term rental prices, he signed a lease on a second Manhattan apartment this summer. He now uses it solely for Airbnb, generating up to $6,000 a month in profit. Last month, he added a third rental — this one under his wife’s account. He plans to add more, he said, possibly even under phony accounts to avoid legal scrutiny. . . Another New Yorker, a 49-year-old entrepreneur (who also insisted on anonymity), got his start on the site after shareholders pushed him out of the information technology company he had founded, leaving him without a source of income. . . But after renting out his apartment on Craigslist and through word of mouth, he signed up for Airbnb in early 2011, with a plan to make short-term rentals his full-time job. He signed leases on former factory spaces in Lower Manhattan, renovating them and listing them on Airbnb. At his peak, he said, he managed 12 listings and hired a team of cleaners, greeters and handymen to keep his scatter-site hotel operating. His relationship with Airbnb, however, turned sour when Schneiderman sought data from the company about operators like him. . . .And who would want to stop a man with 12 apartments from making ends meet?“ (“The Business Tycoons of Airbnb”, New York Times, November 25, 2014)
- The numbers of potential renters and cars above are reasonable and appropriate because they are less than 50% of the worst case conditions that you would be required to consider in a proper EIR.
- The assertion by the Coastal Commission that an ordinance modeled on “Santa Cruz and San Luis Obispo counties [are] places where ordinances permitting short term rentals have been successful” ignores the facts that are unique to the Coastal Zone in Monterey County and that the evolution of the STR industry is dramatically different than even one or two years ago. Both Santa Cruz[i] and San Luis Obispo are in fact experiencing increasing problems with STR and have not found solutions as yet. The problem is that ways to circumvent the proposed changes are also well known in the STR industry. The Coastal Commission should take administrative/judicial notice not just of the problems experienced in Santa Cruz and San Luis Obispo, but also serious problems encountered in:
- Amsterdam, Netherlands; Anaheim, CA; (Anaheim just banned short-term rentals entirely. Residents had complained that Disneyland visitors had overrun their neighborhoods. (New York Times; July 1, 2016); Berlin, Germany; [ii] Big Sur, CA; Carmel Highlands, CA; Carmel, CA; Danville, CA; Dana Point, CA;[iii] Goleta, CA; [iv] Hermosa Beach, CA;[v] Huntington Beach, CA;[vi] Laguna Beach, CA;[vii] Los Angeles, CA; Malibu CA; Mill Valley, CA; Montecito, CA; (“Montecito Says No to Short-Term Rentals” Independent News, November 21, 2015; Growing sentiment countywide against short-term vacation rentals in residential neighborhoods received more unanimous backing with the Montecito Planning Commission’s recent support of an all-out ban, even in areas where vacation homes have been operating for years, such as Miramar Beach.);Nagano, Japan; New Orleans, LA; New South Wales, Australia; New York, NY;(In New York, where the housing shortage is dire, the law forbids virtually any short-term rental of a residential unit. The city is proposing to sharply ramp up enforcement and penalties, in part because state Atty. Gen. Eric Schneiderman has charged that 72% of private short-term rentals violate the law. (Los Angeles Times, July 19, 2015); Ojai, CA; Pacific Grove, CA (In Pacific Grove — where a short-term rental program was approved with barely an objection during the recession — voices are beginning to be raised asking for the program to be rescinded. – Carmel Pine Cone October 16, 2015); Paris, France; Portland, OR; Redondo Beach, CA San Francisco, CA; “Last month, San Francisco supervisors unanimously approved an ordinance that would fine Airbnb $1,000 per day for each host listed on its website who is not registered with the city.” New York Times,July 1, 2016. . . Campos says illegitimate rentals have effectively taken 1,900 long-term housing units off the San Francisco market at a time when the city is experiencing a historic housing shortage. But the reality that concerns municipal officials is the drastic expansion and commercialization of short-term rentals. There are indications that owners or managers of single or multiple properties available for rent year-round provide a disproportionate share of the market’s volume. (Los Angeles Times, July 19, 2015). And just three weeks ago “Airbnb Sues San Francisco to Block Rental Registration Law: Startup is seeking an injunction to prevent the city from fining Airbnb for each unregistered listing (June 27, 2016 Wall Street Journal); Santa Monica, CA; Vienna, Austria; and many, many others.
- For example, “What we’re trying to stop is the phenomenon of people buying buildings and evicting tenants so they can rent to tourists for three to four times as much. . . “But there’s a commercial short-term rental industry that buys entire buildings and rents them all out. That’s changing the character of the neighborhood and taking housing stock away from people who need it.”
- A study issued in March by the Los Angeles civic group LAANE found that although 52% of the listing hosts on Airbnb in L.A. were on-site hosts offering private or shared rooms, they accounted for only 11% of revenue in the market. Leasing companies offering two or more whole units constituted 6% of all listing hosts but accounted for 35% of revenue.
- REALTOR MAGAZINE, December 2015: STRs are having a dangerous effect on our housing stock. In L.A., a city desperate for more affordable housing, 11 units of long-term rental housing are being lost daily to STR conversions, according to a report from the Los Angeles Alliance for a New Economy. The report says people are converting rent-controlled units into commercial STR operations, and long-term rent-control tenants are being evicted. The loss of these units in the long-term rental market has driven up total housing costs for L.A. renters by more than $464 million in the last year.
- The trend for STRs is away from “shared spaces,” where owners are present. Individuals are now purchasing single-family or multifamily units to turn them into STRs — creating a business — to the considerable detriment of their neighbors. Some short-term renters turn these locations into party houses, creating noise, traffic, and a public nuisance. In such instances, neighbors who need a night’s sleep to work the next day or who have school-age children are disturbed. In my neighborhood, a home owner leased her property for a year to someone she believed was occupying it, only to learn he listed it on one of the STR sites as a “commercial party house.” Some 500 people being charged $125 apiece crammed narrow, winding canyon roads by illegally parking and throwing trash everywhere. When the property owner was alerted, she was shocked and started eviction proceedings.”
- Another example, while drafting this letter (June 28, 2016), the New York Times published an article, “Airbnb in Disputes With New York and San Francisco” that states, “Airbnb executives once promoted San Francisco as a city it could work with. After affordable housing advocates expressed fear that the service worsened the city’s housing crunch, Airbnb agreed to cap short-term rentals for entire homes and required hosts of such listings to register with the city. That law, which became known as the “Airbnb law” for its friendliness to the company, took effect in February 2015. But only 20 percent of the 7,000 or so hosts required to register have done so, and Airbnb has not removed lawbreakers . . .”
- The Coastal Commission letter supporting Short Term Rentals for “families and large groups” also fails to take in to account there is already a process in place for homeowners to do short-term rentals either by applying to become a Bed & Breakfast or through the Conditional Use Process. Both of these processes provide appropriate safeguards for business and adjacent homeowners. Short Term Rentals programs have clearly and unequivocally proven to eviscerate reasonable cost housing for people living and working in the area, driving up costs and commute times, while shrinking the labor pool, and making serving the influx of visitors already here more and more difficult. The saturation point that has already been reached and exceeded by visitors will disastrously impact the ability to serve these and other visitors to the area. This problem already exists in the Coastal Zone and hundreds of other cities. And now Air BnB is actually suing the City of San Francisco who is trying to stop advertising of illegal rentals on the Air BnB site. New York State legislature has passed a similar bill.
- The Monterey Herald reported (6/24/16) “The demand for rental housing on the Monterey Peninsula now far exceeds the supply. . . People are scrambling out there,” said Jan Leasure of MontereyRentals.com a consortium of seven local property managers. “We manage about 400 houses and right now there is a 1 percent vacancy rate.” The problem pertains to the long-term rental market as there are plenty of short-term rentals, said Leasure.”
- The Coastal Commission must consider Housing and Rental Costs. The Coastal Commission letter seems to suggest the extreme impact Short-Term Rentals have on long-term rental availability and costs in a time of housing shortage need not be considered. The lack of appropriate weight to the issue does a disservice to city after city after area that have seen housing costs for the people who are needed to live and work in an area skyrocket beyond any reasonable measure or ability to pay. In effect, the Coastal Commission seems to envision a future where visitors and corporate owners of formerly residential properties are served by people who live one, two, three hours away who have to commute in heavy traffic to jobs, many of which are not high paying.
- Mike Novo, former Director of County Planning states (memo, April 1, 2016), addressed this issue for Big Sur, and it is evident it should apply to Carmel Highlands as well:
As it stands today, we have a large need for housing in Big Sur, and a very small supply. The situation in Big Sur, where much of the acreage is in public ownership, under conservation easement, or undevelopable due to our policies, means that housing supply will be constrained in the future as well.
The need for housing includes affordable housing for employees that work in the area and housing needs for the community, so that a nucleus of residents can remain to represent the community and work or volunteer in the local businesses and governmental functions. Housing needs for the community includes long time residents, artists who provide to the galleries in the area, and an available supply so that the children of residents have a place to live as they get older and establish their own households.
Short term, or vacation, rentals are nothing new. They have been in existence for many, many years. There are heavily used tourist areas (e.g., Sea Ranch, Tahoe, and Yosemite) where whole communities of second homes and vacation homes are the rule, and housing for residents is the exception. With the relatively new tools being used on the web for short term rentals, the pressure on housing stock to convert to short term rental use is great in areas such as Big Sur and we should ensure that housing for the community does not become the exception.
From what I know so far, I believe that there likely is not enough housing stock for the needs of just the community and for employee needs. While not all employees will want to live in the community, we should plan to try to accommodate the needs of those that want to live near their jobs. That creates a safer environment for travelers on Highway 1 by reducing the need to commute long distances from outside Big Sur. It also helps to have a core nucleus of residents who stay and are invested in the community and meets our goal of reducing greenhouse gas emissions.
As such, I do not think that we have a substantial supply of housing that could or should be converted to short term rentals in Big Sur. The needs of the community and accommodating employee housing needs should come first.
[i] See KION September 30, 2015
[ii] See Slate.com April 12, 2014 and http://www.investopedia.com/articles/investing/083115/top-cities-where-airbnb-legal-or-illegal.asp
[iii] Short-Term Rentals not allowed in residential areas
[iv] Short-Term Rentals not allowed in residential areas
[v] Short-Term Rentals not allowed in residential areas
[vi] Short-Term Rentals not allowed in residential areas