STRing The Pot Can Coastal Commission Decide?
Dwight Worden | Seaview Avenue
There’s lots of chatter in Del Mar and elsewhere about the Coastal Commission’s position on short term rentals (STRs). Some cities have tried to ban STRs and have been confronted by Coastal Commission staff opposition. Other cities seem to have bans with no Commission involvement. Lawsuits have been filed in some cities. In Imperial Beach the Commission signed off on a ban on STRs in a residential zone. What gives? Is there a coherent position in all this? Here is a summary of my take on where things stand.
Every city in the coastal zone needs to have a Local Coastal Program certified by the Coastal Commission. Until then, coastal permits are issued by the Commission, not the local city. After certification, coastal permits are issued by the local city, not the commission. Importantly, pre-LCP certification the Commission judges permit applications against the standards of the Coastal Act. After certification, the city’s certified LCP becomes the standard of review replacing the Coastal Act, so permits are issued when consistent with the certified LCP.
Del Mar has a fully certified LCP. It contains our Community Plan and Zoning Code. So, Del Mar, not the Coastal Commission, issues coastal development permits in Del Mar . If Del Mar’s Community Plan and Zoning do not permit STRs in residential zones, neither does Del Mar’s LCP and Del Mar has the right, if not the duty, to enforce those provisions. I performed a detailed analysis of the Community Plan and Zoning Code concluding that, while not 100% free from ambiguity, the better conclusion is that STRs are NOT allowed in residential zones. My conclusion is that to allow them would require a Community Plan, Zoning Code, and LCP amendment. You can read my analysis here: Analysis of Community Plan and Zoning Provisions That Apply to Short Term Rentals Dwight Worden July 2, 2016 www.dwightworden.com/str
Not everyone agrees with me, but I have yet to see an analysis that would cause me to change my conclusions. The Del Mar city attorney has advised publicly that my analysis is “defensible,” while noting there are some ambiguities in the Community Plan and Zoning Code, and that standing our ground is not risk-free.
Other cities that have faced push back from the Commission have either (1) not had fully certified LCPs, so the Commission still had primary jurisdiction (2) Had an LCP but were seeking an LCP amendment or (3) had an identified shortage of affordable visitor serving facilities near the coast such that the Commission staff argued STRs were needed to meet the shortfall. On this point, I did a preliminary analysis concluding that Del Mar has more than its fair share of visitor serving accommodations near the beach at prices comparable to, or only slightly higher than, rates for currently illegal STRs. So, as I see it, if Del Mar stands its ground to enforce its existing LCP the Coastal Commission is unlikely to find a basis to exert jurisdiction.
Finally, lots of folks talk about the “Coastal Commission position” on STRs, and I regularly correct them: The Coastal Commission has NO position on STRs. When the Commission wants to adopt policy guidance, as it has done on Sea Level Rise and many other subjects, it goes through a formal process, with hearings, stakeholder input, etc. and adopts guidelines or policy directives. That has NOT occurred with respect to STRs. What exists are a handful of staff letters to specific cities on their specific programs, but such staff letters do not create formal policy. That may change, however, as the Commission has recently decided to start the formal process to adopt policy guidance on STRs. Del Mar should be actively involved in that process to make sure our interests are represented.
Stay tuned as this interesting story continues to unfold.