The Long and Short of Why Short Term Vacation Rentals Are Prohibited in San Diego

by on September 11, 2017 · 6 comments

in Ocean Beach, San Diego

Editor: The following was given by John Thickstun in a presentation before the Clairemont Town Council last week. John is a member of Save San Diego Neighborhoods. It would be useful if  you got out your copy or found it online of the San Diego Municipal Code.

By John Thickstun

Short term vacation rentals fall into the Commercial Uses category, Visitor Accommodations – San Diego Municipal Code (SDMC) section 131.0112(a)(6)(K) which reads,

“Uses that provide lodging or a combination of lodging, food and entertainment, primarily to visitors and tourists.”

Hotels, motels and Bed & Breakfast Establishments are also defined in the Code as visitor accommodations. Visitor Accommodations is a use category in the Use Regulations Table for Residential Zones (SDMC section 131.0422).

Find the category, Visitor Accommodations, in the Table – it’s on page 12 of the September, 2015 version of the Code. The hyphen (-) in the boxes to the right indicate that the use, Visitor Accommodations, is not permitted in any residential zones, except RM-4 and RM-5 with the provision noted in Footnote 6. According to Footnote 6 – visitor accommodations allowed in those zones (RM-4 and RM-5) are, “Two guest rooms are permitted for visitor
accommodations per the . . .”. Now, go to the definition of “Guest Room” in SDMC section 113.0103.

It reads,

“Guest room means any rented or leased room that is used or designed to provide sleeping accommodations for one or more guests in hotels, motels, bed and breakfast facilities, private clubs, lodges, fraternity or sorority houses.”

So, unless the sleeping accommodations are located in one of these structures – hotels, motels, bed and breakfast facilities, private clubs, lodges, fraternity or sorority houses – it doesn’t fall into the SDMC definition of guest room and therefore isn’t permitted in RM-4 or RM-5.

Put another way – the only visitor accommodation allowed in RM-4 and RM-5 are 2 sleeping rooms in a hotel, motel, bed and breakfast, private club, lodge, or fraternity or sorority house.

Now – if you don’t agree STVR are visitor accommodations (but even the owners and operators and Airbnb generally agree that STVR are lodging for visitors and tourists), there is no category in the SDMC that STVR would fall under and, therefore, pursuant to SDMC section 131.0420(b) – the “permissive zoning” ordinance – which prohibits any
use not itemized in the SDMC, STVR are prohibited in all zones. This is the opinion of City Attorney Elliott.

So there you have it. No matter how you cut it – STVR are – at the very least – prohibited in all residential zones – save the minimal exception for hotels, motels, bed and breakfast facilities, private clubs, lodges, fraternity or sorority houses in RM-4 and RM-5.

{ 6 comments… read them below or add one }

triggerfinger September 11, 2017 at 12:45 pm

That’s nice. But until the mayor or code enforcement changes their mind, it’s of little consolation. We are stuck in limbo waiting for STVR to be added to the code in some compromised fashion.

Or would you rather STVR supporters just obstruct every effort from city council and just sue the city until it enforces the existing code? Otherwise the city and advocates for airbnb have successful shaped the conversation.

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Frank Gormlie Frank Gormlie September 11, 2017 at 1:39 pm

The City Council is due to sit down in October to decide this once and for all.

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John Thickstun September 11, 2017 at 3:07 pm

If by “successfully shaping” you mean the Mayor and city officials have chosen not to enforce the law – because that’s what they have done – you are correct. Unfortunately, not enforcing the ordinance that specifically prohibits STVR or not enforcing the “permissive zoning” scheme in our municipal code, are generally believed to be within the broad discretion of the Mayor. They also have broad immunity from civil prosecution.
It should be noted that under California law, municipalities and municipal officials have discretion in enforcement of its ordinances – including zoning ordinances. What that means is, just because an ordinance is written broadly, it doesn’t follow that every violation will be or should be cited. This is not the way municipal ordinances are interpreted or applied. The drafters intent is to allow city officials discretion. If, for example, a neighborhood has no objection to the operation of an STVR – city officials have the discretion as to whether to take any action against the operator. This is the way many, many of our ordinances are enforced.

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Debbie September 12, 2017 at 5:50 pm
Doug September 12, 2017 at 9:16 pm

All the business’s that cater specifically to tourists, love “Vacation Rentals”!
Residents that love our ‘OB’ community hate them.
Do the Mayor, & City Council live next to a “Vacation Rental”; do they own “Vacation Rentals?
Have they received ‘Campaign Contributions” from owners of “Vacation Rentals”?
keep on rockin in the free world!

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John Thickstun September 13, 2017 at 9:43 am

Residents in OB and MB are the communities most effected by STVR, followed by PB and Balboa Park and East Village. It’s clear where this leads. The drafters of San Diego’s zoning regulations knew about vacation rentals. But, back in the day, vacation rentals were amorphous. Owner/operators generally weren’t using the dwellings as vacation rentals year- round. And there were far fewer, before the advent of Airbnb and other “host sites”. Like other California cities, San Diego zoning/code enforcement professionals saw no need to include a separate definition. The drafters simply described/defined transient uses as visitor accommodations. (Yes, visitors and tourists are defined as “transients” – everywhere. Transients are not just the homeless.) So now we have a new phrase for an old use – but the use is the same. STVR are visitor accommodations. Only now – there are thousands of them in our neighborhoods and Mayor Faulconer refuses to enforce the law. Is Airbnb – are short term vacation rentals – too big to fail in San Diego?

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