Vacation Rentals vs. Home Rule

By Dick York and Bob Carter

Large and rowdy groups using online apps to rent condos and homes owned by corporations, not individuals. New “residential” construction clearly aimed at the build-and-flip and short stay rental market. Mushrooming burdens on local law enforcement, fire departments, sewer and water utilities and other public services. Environmental threats to habitat and wildlife, increased traffic and changes to the character and historic charm of communities.

All of this is familiar to residents of Florida's coastal towns and cities.

In the Airbnb era, many Floridians are asking: What rights do you as a residential property owner have to the quiet enjoyment of your property?

The answer might surprise you — and inspire you to join our cause at Home Rule Florida.

Here's the background: Our federal constitution mentions the word property four times, and the Florida statutes contain numerous provisions pertaining to property rights. However, never in either place are the terms “quiet enjoyment” or “sense of community.”
When you buy a personal residence, the state protects your ownership, but you must look to your local government to provide the conditions you desire in which to live peacefully in a community.

In Florida, historically local governments assumed the authority to govern their conditions under the concept of Home Rule. In 1968, Florida voters adopted an amendment to the state constitution that explicitly states that local governments have home-rule authority except in cases where the state reserved the right to govern, or where federal law took priority.

The Legislature has recognized that local governments are closest to the problem and have been responsible for determining the character of their communities and the placement of commercial and residential facilities through zoning regulation. All this works fine for the most part.

However, as with most government, it is difficult to anticipate future problems. Local governments focus their attention largely on representing residents who have existing problems and concerns, not necessarily future fears. Add to this the fact many small local government councils are really community volunteers who care about the place they live but are not trained in the nuances of governing. Further complicating these conditions is a fast-changing society — Airbnb didn't exist 10 years ago.

In this evolving environment, one of the challenges is the vacation rental industry.

With the advent of e-commerce, social media and the internet, this market has exploded with growth. In fact, it has created a national issue as governments everywhere struggle to cope with issues arising from short-term lodging rentals.

As Philip Levine, mayor of Miami Beach, said recently: “Airbnb, we aren't buying what you're selling.” Siesta Key's enforcement officer spends three quarters of his time chasing violations in vacation rentals. Anna Maria has added staff to cope with the proliferation of vacation rentals. Longboat Key commissioners were surprised to learn that more than 5,000 condos are available for rent on the island.

This directly challenges local governments' ability to maintain the character of their residential communities while accommodating an increased tourist demand. What's more, the explosion of vacation rentals and transient visitors is quickly and adversely affecting full-time residents' sense of community.

Realizing they are the protectors of residents' quiet enjoyment, local governments have had mixed results coping with the tourist increase. Some have imposed severe rental restrictions, while others have been more open to mixed use.

Compounding the pressures on local government, the Legislature in 2011 removed much of municipalities' and counties' home-rule authority regarding the regulation of vacation rentals.

The Legislature further confused the issue by defining vacation rentals as “transient public lodging establishments” and residences. This basically created a window for building — or renovating into existence —mini-hotels in residential neighborhoods.
In 2014, the Legislature gave back some home rule to local governments, but today the situation remains chaotic and undefined.

For instance, what exactly is “transient public lodging”? If grandma rents her two-bedroom beach bungalow for a couple months a year to help pay the mortgage, is that the same thing as out-of-state Beach Vacations LLC that built multiple mini-hotels operated by professionals and rented nightly year-round via Airbnb?

We're hardly alone in our barrier-island battle on Florida's west coast. Beach communities from Cape Cod to Long Island's East End to the Outer Banks of the Carolinas to the shores of Malibu are trying to set their own rules about short-term rentals, local control, occupancy and public safety.

This is not a Republican issue. This is not a Democratic issue. And it's not a class issue. Every community strives to have more say over what happens locally, and who benefits. This is not ideological.

Likewise, we're all fans of some of the technological advantages of wired travel. It is convenient and can improve the quality of life for everyone.

But a group of tech CEOs or venture capitalists thousands of miles away don't know what's best for Anna Maria Island, Longboat Key, Miami or Key West — or any of our state's coastal communities. One size most definitely does not fit all when it comes to public safety and local resources.

These are not civil rights issues; these are commercial use and zoning issues. Only local residents, working through their own elected officials, know what's best in these matters.

The most frequent complaints from residents who have had their lives disrupted by vacation rentals are most likely that the renters are not part of the community and that the trash, congestion and noise that frequently come with these rentals have infringed on their right to quiet enjoyment of their property. As part of a committee of Floridians concerned about home rule (and operating the web site www.HomeRuleFl.com), we have received many reactions from residents directly affected, and we're building a coalition aimed at changing public policy.

While we would love to see the vacation rental industry firm up its own self regulation and ethics, we also believe there is a public policy solution that is vital for Florida's future. Home rule must be returned completely to local government — as was guaranteed by the 1968 amendment. Local governments historically have been proven to be closest to the problems of defining and creating a residential community.

However, in recognition of the growth in tourism and the need to protect Florida's communities, local governments need help, not opposition from state government.

The Legislature must realize that defining how our state should deal with this new phenomenon is really an opportunity. By setting up guidelines for how local governments can create proper zoning that will ensure a safe, healthy and enjoyable experience for our visitors as well as the state regulatory structure for licensing, taxation and control of vacation rentals, the state should work in partnership with local governments that are ill-equipped to deal with this rapidly evolving phenomenon of vacation rentals.

HOME RULE DEFINES THE EFFECTS

Here is how Home Rule Florida, an organization of volunteers concerned about the effects of vacation rentals, has defined the issue on its website, homerulefl.com:

The Problem
Since a 1968 constitutional amendment, unless preempted, local governments have had home rule powers, giving them the authority to regulate short-term vacation rental housing.
In 2011, the Legislature removed the authority from cities and counties to regulate vacation rental housing. But in 2014, the Legislature restored partial authority — only to complicate the issue. Now vacation rental industry is lobbying the Legislature to restore what it had obtained in 2011.

EFFECTS
Incompatible short-term rental housing negatively impacts the neighborhood environment and impairs its stability, affecting the entire community.
Short-term vacation rental houses are commercial ventures operating hotel-like businesses in residential neighborhoods and condominium communities.
The law exempting vacation rental housing from local zoning ordinances has effectively punished communities who had no prior restrictions or problems with vacation rentals.
By exempting vacation rental housing the state created a privileged class that was not part of the due process and zoning that is the main function of local government. This encouraged widespread building of vacation rental properties in residential neighborhoods as a class of residence exempt from local governance.
With the 2014 legislation, short-term vacation rental housing may only be partially regulated by local government.

CONCLUSION
The 2011 law exempting vacation rental housing from local regulation was a mistake and it has taken its toll by favoring the rights of new investment interests over existing residents and homeowners. This current effort by the vacation rental industry to go back to 2011 must not be allowed to succeed.

Dick York and Bob Carter are founders of the Home Rule FL Committee and residents of the city of Anna Maria. Find out more at homerulefl.com

Tourism is vital to Florida's present and future. But without the natural beauty, ecological richness and historic character of our communities, the travel and real estate industries will suffer in the long run. And so will our communities.