This ordinance, as written, is a ticking time bomb. The P&D Board punted on this one, apparently believing that political self-interest is somehow nobler than economic self-interest.
Palm Coast, FL – October 31, 2014 – The Flagler County Planning & Development Board Wednesday night voted unanimously to forward a proposed short-term vacation rental ordinance to the Board of County Commissioners (BOCC) with a recommendation that the BOCC pass the ordinance as written. Several blue-shirted Hammock residents were in attendance to support approval. They left happy, but the meeting was a sham and the ordinance, as written, is a ticking time bomb.
Ocean Hammock’s rental problem has its genesis in the original development order and association documents. Developer Bobby Ginn struck a deal with the BOCC when he obtained plat approval for Ocean Hammock. Describing his development as a “resort community,” Bobby insisted that short term rentals be allowed in both condominiums and houses within his development. As clearly stated in the transcript of the January 16, 2001 regular BOCC meeting, the BOCC acceded. Ginn reaffirmed his intention earlier this year in sworn testimony.
Before 2011, there were no attempts to add constraints or to increase control over short-term vacation rentals in Flagler County. In other parts of Florida, some local governments did place restrictions on short-term vacation rentals. In some cases, these regulations were burdensome.
The vacation rental lobby successfully argued in Tallahassee that they were being legislated or zoned out of existence. Tallahassee responded. In 2011, Florida House bill 883 preempted control of short-term vacation rentals from local governments.
One of the unintended consequences in many parts of Florida was rental cramming, where the most number of people possible were crammed in to one rental property. Local governments could do nothing about it.
Rather than cramming, investors in Ocean Hammock simply built bigger houses with more bedrooms. They began building what some describe as mini hotels, homes designed to be rented short-term to large vacationing groups. The regulatory occupancy standard was two people per bedroom plus two more. Hence, a nine-bedroom house could accommodate 20 (2 X 9 = 18 + 2 = 20). Both the county and the Ocean Hammock Property Owners Association Architectural Review Board approved the building plans.
Facing mini-hotels on their street or even next door, Ocean Hammock residents rose up in protest over abuses by vacation renters. Complaints centered on parking, noise, traffic, fireworks and garbage. In part, because of residents’ efforts, Florida legislators representing Flagler County, Representative Travis Hutson and Senator John Thrasher, brought companion bills to the their respective chambers of the Florida legislature.
Flagler County Commissioners Frank Meeker and Charlie Erickson travelled to Tallahassee to lobby strongly for a change. Meeker represents County District two, which encompasses Ocean Hammock. Their goal was to return control over short-term vacation rentals to Flagler County, enabling the county to address the Ocean Hammock issue.
Earlier this year, Florida partially unwound the 883 with Senate bill 354, which returned much control to local governments. But local governments still could not control the frequency or term of rental agreements.
Upon passage of 354, Flagler County staff, with the urging and participation of Ocean Hammock residents, began crafting a local ordinance to regulate short-term vacation rentals in the county. Jacksonville attorney Wayne Flowers, representing some of the vacation rental owners, reached out to Flagler County Attorney, Al Hadeed, to offer help in drafting the ordinance. His offer to participate was ignored. The attitude behind that rebuff practically guaranteed that the outcome would be one-sided and overreaching. It set in motion events leading, I think inevitably, to a battle between the county and owners of vacation rentals; a battle that threatens to be costly to all parties unless the BOCC does a reset.
The proposed ordinance
The draft of the proposed ordinance to regulate short-term vacation rentals is dated October 23, 2014. That same day, most Ocean Hammock residents were alerted for the first time via email of the ordinance and of an October 29, 2014 special meeting of the Flagler County Planning & Development Board. The P&D Board’s role is to recommend that the BOCC either pass or deny the ordinance.
Attorney Flowers first learned of the draft and of the special meeting from a property owner that day and did not see the draft ordinance until the following day, October 24, 2014, the same day I was alerted. Flowers responded with an October 27th letter to Hadeed outlining several objections and including economic impact data.
At the special meeting, the P&D Board recommended the BOCC pass the ordinance as written. The vote was unanimous. During the meeting, staff presented the ordinance and underlying assumptions. Flowers spoke, referencing his letter, saying that, due to the short notice of the meeting, he had little to add. He voiced his concerns over timing saying, “The train is on the tracks and it’s going pretty darn fast.”
Flowers pointed out that the present track would likely paint his clients into a corner where the only option was litigation, likely under the Bert Harris Act. The Bert Harris Act, also known as the Private Property Rights Protection Act, provides relief for property owners who can demonstrate that a governmental action “inordinately burdens” their property’s use.
The Bert Harris argument was used successfully by Seagate Homes in a dispute with the City of Palm Coast seven years ago. In a negotiated settlement, the city reversed a land use decision regarding a 27.8-acre parcel near Rymfire Drive that made the project economically unfeasible to develop. City of Palm Coast Settles Ryans Landing Dispute with SeaGate Homes
The proposed new ordinance has several good points. It addresses health and safety issues such as swimming pool safety, fire suppression, evacuation, and smoke and carbon monoxide detectors. It will also insure greater compliance of bed tax and sales tax collection.
It requires at least one telephone land-line, based on the assertion that out of town cell phone numbers are problematic in 911 call situations. Reasonable logic in the past, but doesn’t hold water in the face of the fact that many homeowners have gone wireless. Many of my local full-time resident friends do not have land lines but use cell phones exclusively. Many of their cell numbers have legacy area codes from a former address.
The proposed ordinance also sets up a system of certification, license and inspection requiring:
- Obtaining a short-term vacation rental certificate from Flagler County
- Obtaining a business tax receipt from Flagler County
- Obtaining a Florida Department of Revenue certificate of registration for purposes of collecting and remitting tourist development taxes, sales surtaxes, and transient rental taxes
- Obtaining a Florida Department of Business and Professional Regulation license as a transient public lodging establishment
For Ocean Hammock short-term vacation rentals, the maximum occupancy shall be limited to eight occupants per unit, including day guests. There is no provision to grandfather the occupancy cap.
Properties designated for short-term vacation rentals cannot be located within 500 feet as measured from property line to property line of another short-term vacation rental certificate holder. Present units located within the 500 foot limit are grandfathered.
As I have said before, I have no dog in this hunt. I do not own property in Ocean Hammock nor do I expect to ever rent a vacation home there. I have friends on both sides of the argument. I live in a condominium complex that allows short-term vacation rentals. I wish that it were not so, but I read my condominium declaration and rules before I moved in and understood the implications.
I am a member and past-president of my condominium association board. I have learned that there are often competing interests among property owners. Those competing interests are sometimes difficult to reconcile. Reconciliation options are limited by legal constraints.
The proposed ordinance is poorly drafted, one-sided and overreaching. It has 68 ‘Whereas’ clauses for God’s sake. What does that tell you? I must check the Guinness Book of Records.
I take particular exception to the arbitrary occupancy cap and to the lack of a grandfather provision for the occupancy limit. The limit is arbitrary and capricious. Staff arguments to support it are lame, at best. If these provisions remain, the Bert Harris implications are obvious.
I also take exception to the approval process. One side of the debate was allowed to participate in the ordinance’s development. The other side, although willingly available, was willfully excluded. Why was a special meeting of the P&D Board called for the sole purpose of acting on the proposed ordinance when a regularly scheduled meeting was only two weeks away?
The P&D Board failed to play its role as a deliberative body. Only two of the eight members posed questions. Most of the resident complaints were about nuisance issues. None of the Board members raised the question that came first to my mind. “Do the community documents address these issues?” The answer is yes. Existing Ocean Hammock documents regulate, restrict or prohibit activities associated with noise, parking, traffic, fireworks, garbage handling etc. The portions of the county ordinance dealing with these issues are redundant.
Al Hadeed should have fully informed the P&D Board of the possible Bert Harris Act implications of the ordinance, if enacted. Rather, he tossing it off as trivial, something to be expected. He disingenuously dismissed Flowers’ statements, saying Flowers really had nothing to say other than “we will sue you.” Hadeed neither mentioned Flower’s letter nor discussed its content. Hadeed failed in his duty as County Attorney. The risk is real. Losing could be terribly expensive.
Litigation costs and losses could be significant. Also significant is the economic impact of tourism, of which short-term vacation rentals are a major component. The industry reportedly has a total economic impact of $31,103,335,624 annually in Florida. Vacation Rental Pros, the largest vacation rental agency operating in Flagler County collects over $500,000 each year in bed tax.
Four and one half days after the hastily called P&D Board’s special meeting, the BOCC Monday morning at 9:00 A.M. will hear the first reading of the proposed ordinance. They should listen. They should ask a lot of questions. How many citations have been issued by the county related to Ocean Hammock short-term vacation rentals? They should grill Hadeed.
A controlling ordinance is needed, but this edition isn't the one. BOCC should instruct staff to reconvene and, with input from stakeholders on both sides, come up with an ordinance that will accomplish meaningful and reasonable controls on the short-term vacation rental industry. The effort should be transparent and collaborative.
If the rewrite still has 68 ‘Whereas’ clauses, they should send it back for another rewrite without even reading the rest of the revised draft.