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For nearly two years, city leaders have wearied over complaints and a legal gray area surrounding short-term vacation rentals in city neighborhoods.
Now, in a stunning move, City Council President Sherri Lightner has scheduled a Tuesday City Council vote to clarify that renting out homes to visitors isn’t allowed in single-family neighborhoods. If her City Council colleagues agree and the law survives any mayoral veto or other challenges, it could have vast consequences on the large number of people renting out their homes to visitors. Nobody disputes that it could eliminate the practice in many residential areas of the city. There is, however, a major dispute about what it might do for homeowners simply renting out parts of their places to visitors while owners remain at the site.
We wanted to explain what we know about the plan through two fact checks. First, some background.
As word of her plans spread, short-term rental giant Airbnb has asked fans to campaign against Lightner’s proposal.
Airbnb claimed in a recent Facebook post and an online call to action that Lightner’s proposal could make it illegal for San Diegans to rent out or share their homes. The company also claimed that renting out parts of your home while you are still there, so-called home-sharing – a distinct kind of short-term rental – would be effectively outlawed.
There are two types of short-term rentals: whole-home or apartment rentals, and home sharing, where a host remains on site.
Airbnb, one of the dominant players in the short-term rental market, reports that 67 percent of its hosts are renting out their entire homes or apartments. A third of them are offering a private or shared room in their home.
An often-cited 2007 city attorney’s memo concluded there weren’t clear city regulations barring or overseeing these short-term rentals.
This has fueled confusion and frustration as more short-term rentals pop up and San Diego residents, especially in beach communities, complain of unruly guests in neighbors’ homes. Meanwhile, vacation-rental operators are pulling in cash and paying taxes. Airbnb reports that it paid more than $7.5 million in city hotel taxes last year.
Last December, City Attorney Jan Goldsmith weighed in with a memo.
His office reiterated the vagueness of current city code and suggested the mayor and City Council could make three changes if they wanted current city rules to apply to short-term rentals. Goldsmith didn’t take a position on whether they should make those tweaks.
Lightner’s now pushing two of those changes.
Here’s the current definition of visitor accommodations.
Lightner wants to remove the word “primarily” to broaden the definition of visitor accommodations. She also wants to define visitors and tourists as transients staying for less than a month.
These changes would mean that even short-term rental operators who only occasionally welcome guests would be affected.
Statement: “Lawmakers are meeting Nov. 1, and are considering a proposal that could eliminate San Diego residents’ ability to lawfully short-term rent or even share their home,” Airbnb wrote in a recent online campaign.
Ruling: Mostly True
Airbnb’s blast claimed Lightner’s proposal could forbid whole home-rentals and home sharing. We’ll tackle the first part of the claim about short-term rentals here.
One thing isn’t disputed: Both Lightner and short-term rental advocates say the proposal would bar whole-home rentals in single-family neighborhoods. Those seemingly small changes to the city code would clarify that short-term rental operations in single-family homes and apartments, not just hotels, count as visitor accommodations.
Lightner believes visitor accommodations are already prohibited in single-family neighborhoods under the current code. She argues her new regulation would just clarify that, explain where whole-home rentals are allowed and open the door for enforcement.
“This needs to be enforced. It has lacked enforcement for a large number of years to the point where folks believe it is a right now,” Lightner said. “It is not a right. It has never been a right.”
Her primary goal was to find a way to combat problem short-term rentals in single-family neighborhoods. She’s pushing this legislation in her final weeks as a city councilwoman. She’ll be termed out in early December.
Yet her recommendations wouldn’t amount to a ban on all short-term rentals, as Airbnb’s statement implies.
Her proposed changes allow short-term rentals in some commercial zones and two multi-family zones. A review of the city’s zoning grid map reveals small patches of those two multi-family zones in 10 city neighborhoods.
Sheri Carr, a former city code enforcement official who worked on Lightner’s proposal, said whole-home rentals would also still be allowed in limited areas in more than a dozen San Diego neighborhoods with their own zoning regulations. These are known as planned district ordinances and a handful of prime tourist destinations, including parts of Mission Beach, La Jolla and downtown, have them.
Data provided to Voice of San Diego earlier this year showed Mission Beach alone was home to 14 percent of Airbnb’s whole-home or apartment rentals in the city.
Carr said she reviewed the plans for each of those planned districts and found that whole-home vacation rentals would still be allowed in portions of many of them, including in Mission Beach.
An attorney hired by vacation rental platforms estimated 70 percent of whole-home rentals and home-sharing operations in the city could be eliminated by the rule change.
That estimate didn’t incorporate Airbnbs in planned districts, where Lightner’s office has said current rules still would apply, and it assumes home-sharing would be banned, which I’ll cover below.
Setting aside the attorney’s estimate, the company’s online claim has been that San Diego residents could lose their ability to rent out their homes if Lightner’s proposal is approved.
That’s mostly true.
The crucial nuance here is that while whole-home short-term rentals would be banned in many areas if Lightner’s proposal is approved, they wouldn’t be banned in all parts of the city.
Now let’s tackle what’ll happen to home sharing if Lightner’s proposal is approved.
Statement: “This would effectively ban home sharing in San Diego,” Airbnb wrote in a recent online campaign.
Lightner’s repeatedly said she’s not trying to stop owners from renting out rooms of their homes while they stay on site, otherwise known as home sharing. But plenty of people think that’s what the proposal would do whether she intends for it or not.
In an analysis sent to City Council members on behalf of rental platforms, San Diego-based attorney Robin Madaffer said Lightner’s proposal doesn’t distinguish between whole-home rentals and home sharing.
As a result, Madaffer claimed Lightner’s changes would give the city the ability to effectively shut down home sharing in most parts of the city.
“We believe the expanded definition of visitor accommodations would apply to home-sharing activities and would preclude home-sharing activities in almost all zones,” Madaffer wrote. “A different interpretation would likely result in enforceability issues.”
At least one other attorney agrees.
Omar Passons, an outspoken critic of the city’s approach to short-term rentals, said Lightner’s proposal could effectively shut down home sharing because it lets the city apply the visitor accommodation definition to any operators in residential areas who host paid visitors.
But Lightner said she’s confident her measure doesn’t affect home sharing because the city’s already addressing it with its boarding and lodging rules. She’s not trying to change that language and isn’t asking code officers to crack down on home sharers.
The city’s taken the position that its boarding and lodging rules restrict home sharing in city neighborhoods but the city attorney’s office concluded in its December memo that those regulations needed significant clarification – and don’t conveniently cover short-term rentals.
Short-term rental advocates have said current city rules don’t work for home sharers.
The boarder and lodger rules allow those who own property in some multi-family zones to host visitors for at least seven days. Stays need to be at least 30 days in single-family residential zones.
Those timeframes don’t mesh with typical short-term rental stays. Airbnb reports its guests stayed in San Diego homes and apartments for an average of just 3.6 nights in the last year.
The city’s bed and breakfast regulations aren’t helpful to many short-term rental operators, either.
Smaller ones are allowed in most multi-family zones but permits are required for single-family neighborhoods. They cost a minimum of $3,000 to $5,000 and even larger deposits are required per city policies – a sum occasional home sharers are unlikely to fork over.
For now, hundreds of San Diegans are renting out rooms using Airbnb and other platforms despite these inconvenient rules. The city hasn’t gone after them en masse and so they’ve continued to operate.
Then came Lightner’s proposal.
Lightner’s said she isn’t trying to encourage code enforcement to go after home sharers.
But short-term rental advocates fear the worst.
We dub a claim unfounded when there’s insufficient evidence to back up a statement. For now, it’s unclear whether Lightner’s proposal would effectively ban home sharing.
She says that’s not her intent. The rest of the City Council and if the changes are approved, other city officials, will play a role in deciding how this would work in practice.