By John E. Thickstun
There are only two possibilities here in San Diego: STVRs (short term vacation rentals) are either “Visitor Accommodations” under the Municipal Code, or they’re not a listed use in the Municipal Code.
In either case, STVRs are not permitted in residential zones under the Municipal Code for San Diego.
On September 22, 2015, the San Diego Community Planning Committee voted 24-3-2 that STVRs fall under the definition of “Visitor Accommodations:”
“Uses that provide lodging, or a combination of lodging, food and entertainment, primarily to visitors and tourists”
For example, hotels, motels and bed and breakfast establishments are Visitor Accommodations. The Committee confirmed what San Diego residents already know (and what even Airbnb admits) –that STVR renters are visitors, and STVRs are visitor accommodations. Visitor Accommodations are unlawful in all residential zones. They are a non-conforming use.
Then-City Attorney Michael Aguirre’s Office issued an opinion on STVRs in 2007 (written by deputy City attorney Shannon Thomas). It concluded STVRs are NOT Visitor Accommodations, as it concludes that because there is no definition for “visitor” in the Municipal Code, you can’t determine that the people who stay in STVRs are actually visitors. And because you can’t call them “visitors,” then STVRs are not “visitor accommodations.” Pretzel logic.
Under the law, if a term is not defined in the Municipal Code, then the commonly accepted definition is to be used. Even Airbnb and STVR operators don’t deny their renters are visitors. And the City of San Diego levies the hotel occupancy tax (“TOT”) on the STVRs operators, having concluded that the renters are “transients,” a synonym for “visitors.” Go figure.
But, …
Even if you conclude STVRs are not Visitor Accommodations, like marijuana dispensaries, STVRs are “not one of the enumerated permitted uses in the San Diego Municipal Code” and therefore are not permitted in ANY zones. City Attorney Goldsmith successfully used this argument to shut down medical marijuana dispensaries in 2011, claiming they were not a listed use in the SDMC.
Apparently recognizing that the 2007 opinion letter is unsupportable, City Attorney Goldsmith is now arguing that STVRs have operated in violation of the law for so long that now the City can’t shut them down. This is also legally incorrect. In Schafer v City of Los Angeles, 237 Cal.App.4th 1250 (2015) the California Court of Appeals reiterated,
“The failure of any of these persons [referring to elected officials] to enforce any law may never estop the people to enforce the law either then or at any future time. It would be as logical to argue that the people may not proceed to convict a defendant of burglary because the sheriff perhaps saw him and failed to stop or arrest him for another burglary committed the night before. “
City Attorney Goldsmith’s opinion – that the City is prevented from enforcing the law because it hasn’t been enforced in the past – is unequivocally not supported by California courts.
So there you have it. STVRs are either visitor accommodations and are illegal in residential zones, or they are not a listed use in the code and are illegal under the Code. The City Attorney has a legal obligation to enforce the city zoning laws, and the fact that he hasn’t for years is no excuse, legal or otherwise.
Editor: This is a summary of a longer position paper.
John Thickstun is a lifelong San Diego resident and a lawyer, practicing in San Diego for over 30 years. He is a member of Save San Diego Neighborhoods.