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