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Ending Long Fight, County Approves Short-Term Rental Regulations–With Grandfather Clause

| February 19, 2015

Bed-making not required, but a limit of two sleepers per room is, in Flagler County's new short-term rental ordinance. (John Mignault)

Bed-making not required, but a limit of two sleepers per room is, in Flagler County’s new short-term rental ordinance. (John Mignault)

In the culmination of a three-year effort to return regulation of short-term rentals to local governments, the Flagler County Commission Monday evening voted 4-0 to approve new rules controlling family homes used as vacation rentals, an industry that exploded after 2011, especially in the Hammock.

As in previous meetings or hearings on the matter, the issue split generally into two camps: proponents of short-term rentals who spoke of property rights and the economic benefit of operating homes as vacation rentals on one side, and opponents of short-term rentals who are usually full-time residents and neighbors of short-term rental properties, and who see their property rights, values and expectations infringed by the disruptions of the renters. But unlike previous occasions, Thursday evening’s drew a limited number of public input: some 45 minutes’ worth, suggesting that what opposition to regulations the county had faced previously had largely conceded the issue. Most of those who spoke Monday evening favored stricter regulations and tough enforcement.

A property owner had her testimony read, describing children from a rental running through her plants, pets relieving themselves in her yard, and her property value suffering. “My rights as a homeowner in this neighborhood have been violated, it’s hurt me tremendously,” she said. “We’re not fooled,” another property owner said, encouraging the commission to rigorously enforce the ordinance, “these are not homes, they’re businesses.”

Politically, the commission’s intentions were no mystery. Vacation renters, off-site property managers and absentee landlords don’t vote. Full-time residents do. The commission has made it clear that it wants stricter regulations of the industry, but not so strict as to overly dampen an industry that also contributes to the county’s tourism industry. It brings visitors, tax revenue and activity for local businesses.

That’s what led commissioners to successfully push lawmakers last year to amend a law that had prohibited local governments from regulating the industry more than the state does. But the commission had to craft an ordinance that did not invite lawsuits. After some 15 meetings with people on all sides of the matter, the county combined the legally permissible set of new regulations with a relatively permissive grandfather clause.

The ordinance approved Monday changed notably from its first hearing before the commission in November. Its most contentious part Monday evening was its “vesting” provision—essentially, a grandfather clause that allows current renters to still rent under some of the the pre-ordinance terms, and to do so for up to six years. Proponents of stricter rules were initially displeased, as the allowance was set at 10 years. The clause is designed as a legal flack jacket for the county, which hopes to ward off lawsuits.

“That is the legal landscape we have to work with, and we have to address vested rights,” County Attorney Al Hadeed said. He described the county’s thinking in developing a legally defensible system and cautioned commissioners against making the sort of tweaks that would invite lawsuits, because, he said, “you all know that the real costs associated with venturing closer to the Bert-Harris gray line.” Hadeed was referring to the state’s private-property rights protection law.

“We’ve spent thousands and thousands of dollars just to get to this point,” Commissioner George Hanns said. “Nothing is going to be perfect.”

Narrowing the grandfather window to a maximum of six years was one of four key changes they made to the proposed ordinance, by consensus, just before the vote.

Frank Meeker. (© FlaglerLive)

Frank Meeker. (© FlaglerLive)

“I’m so impressed with this board,” Commission Chairman Frank Meeker said in a brief interview after the meeting, which ended just before the three-hour mark. It had begun at 5:30 p.m. “They took an extremely complicated issue and not only they demonstrated great understanding of the ordinance as proposed, but demonstrated extreme leadership and sensitivity to the concerns that were raise din the public commenting period and made appropriate changes to the ordinance to address those concerns. I’ve never been more proud to be associated with the board.” Meeker and Commissioner Charlie Ericksen had shuttled to Tallahassee several times last year to shepherd the bill amending the short-term rental ordinance at Flagler’s original request.

Other changes reflected the county’s compromises since the ordinance’s first airing in November.

The requirement that all shot-term rental properties have at least one landline is eliminated. So is the requirement that “railways” be installed on all stairways, porches and steps. A requirement that short-term rentals with more than eight occupants be at least 500 feet apart was eliminated. A “quiet hours” requirement, previously set between 10 p.m. and 8 a.m., was eliminated. The requirement that each short-term rental property have a designated “agent” was eased to mean only a “responsible party capable of meeting the duties” outlined in the ordinance. But that responsible party must still be available 24 hours a day, should county authorities need to contact her or him, and to be at the property, if necessary, within two hours of a request.

Property owners who want to use their single or two-family homes as short-term vacation rental properties much obtain an annual rental certificate for each unit (with an annual fee to be set by the county commission) and a business tax receipt from the county and tax documentation from the state to ensure that they pay their 4 percent sales tax supplement, also known as the bed tax, which feeds revenue into Flagler’s tourist development coffers.

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Fire regulations must comply with the county code. Certificates would be issued only after a county inspection, and re-inspection would take place with the issuance of every application (a change from a previous provision that would have imposed inspections only every two years. The commission did not address its own manpower issues, which played into the county’s caution in setting up too many inspections: the system will require more employees, which the county will have to pay for). Those would not be surprise inspections, but scheduled inspections arranged with the property owner or the responsible party at the property.

The code requires that no more than two people sleep per bedroom, and no more than two in a common area, with maximum overnight guests limited to 10 in a single-family house, and to 16 in a two-family dwelling. (The exception is for those who qualify for the grandfather clause over the next six years. They may have up to 14 occupants. If the property is sold, the grandfather clause is lost.) In both cases, a previous restriction on day guests was eliminated. A house must have a parking space for each three overnight occupants, but a concurrent requirement for day guests was eliminated.

The ordinance goes into such minutiae as garbage containers: the previous proposal required short-term rentals to have at least one lidded, 35-gallon trash container for every three guests. The requirement was eased to one container for every four guests. But supplementary trash fees were eliminated. But property owners must still provide a sketch of the building, to scale, showing all bedrooms and sleeping areas, exits, smoke and carbon monoxide detectors and fire extinguishers’ locations.

The penalties for infractions are not particularly harsh: while property owners are getting fined for violations, it takes a series of at least four or five successive violations before a certificate is suspended. County Commission Chairman Frank Meeker found the system too permissive for habitual violators, even though fines may be increased over time for repeat offenders.

A suspension of a certificate “is a very had penalty,” County Administrator Craig Coffey said. “We did not want to jump into that, it’s more of a last-resort.” The violation history accrues over 36 months, so that the record isn’t wiped clean with every new rental. Still, Coffey said, “our intent is not punitive, our intent is compliance, our intent is to work with people,” Coffey said, with rules mitigated to reflect that on occasion, a property owner may have a “bad tenant,” and should not be overly penalized for that one bad tenant. “We hope we never have to go down this route,” Coffey said.

“I would change the 36 months to 24 months in a heartbeat,” Commissioner Barbara Revels said, to address landlords or property owners who show contempt for recurring violations.

A short-term vacation rental is defined as “Any unit or group of units in a condominium, cooperative or timeshare plan or any individually or collectively owned single-family, two-family, three-family or four-family house or dwelling unit which is also a ‘transient public lodging establishment.’”

Commissioner Barbara Revels had abstained from voting on the ordinance on first reading in November because, she said at the time, she does business with some of those involved in the short-term rental industry. She voted tonight. Commissioner Charlie Ericksen, who followed the meeting online but did not participate, was still recovering from two surgeries.

Flagler County’s Short-Term Rental Regulations (2014)

8 Responses for “Ending Long Fight, County Approves Short-Term Rental Regulations–With Grandfather Clause”

  1. roberto Di Nicolo says:

    Your article addresses the issue in great detail. However I cannot find any reference to the fact that there been some special exclusions from this ordinance. For instance, all condominiums are excluded from this ordinance. All homes west of US-1 are excluded. Why are condominiums excluded? The answer we get from County staff is that condominiums renters self regulate. People who rent houses are unruly. How can this be true? How can an ordinance regulate less than 10% of the vacation rental market and leave everybody else unregulated?

  2. confidential says:

    This should be resolved in a very simple way by utilizing the enforcement the county is obligated to provide for the rental fee of short term rentals that they collect. They are to supply the inspectors that looks like they are not providing now, while collecting the rental fees. When a resident files a complaint should be able to file it on a very easy way by phone or even better on line like in the city of Palm Coast and the county response should be immediate. No children screaming or pets running without adult supervision or off leash on the streets or trespassing in neighbors properties, no cars parked allover other homes right of ways or in the street. Want to rent your house to 10 or 14 people for profit then your house needs to have parking for more than 2 cars. No leaving items strewn allover in the exterior of the house, just conform to the ARC and By Laws of the Association or general rules of the neighborhood. The problem here is that the county collects the rental fee and benefits from the rental income but do not provide the inspectors to keep rules in place for these short term rental homes. I totally agree that rental homes could be detrimental to neighborhoods even long term rentals can as in our own HOA we have to address careless renters issues rather often because as soon as they move in, 50% of them start violating our covenants and have to be addressed and enforce compliance against their will.

  3. DoubleGator says:

    The Rolling Stones said it best: You don’t always get what you want, but in the end, you just may find, you get what you need. I appreciate the County’s effort and will wait and see how it plays out.

  4. David B. says:

    So glad to see the County allowing this to happen. I have always thought that the County was divided into 2 sections. Anything East of the Intracoastal was for Resort, Vacation use, and Resort related businesses. Those West of the Intracoastal was for long term residence, and all other businesses. So for those that chose to live by the beach, you are going to have to share with all those vacationers. That’s just the way it is.

  5. confidential says:

    Very simple Mr. Di Nicolo…and here I agree with the county that condominiums have an association and their own Covenants and Bylaws that addresses in general all these type of issues and complaints accordingly with the Florida Statute 718 Take your time to read because covers all and is very looong.
    Also for houses in Home Owners Associations, guidance is thru Florida Statute 720. Now houses that are not inside a Development with a Home Owners Association they fall under the rules of cities and counties ordinances that are pretty similar at the ones in the 720 Statute. All these statutes and rules have only one purpose to promote, sustain and preserve the value of our biggest investments of our lives for most of us, that are our homes and also the peaceful coexistence among neighbors. Totally justified!

  6. confidential says:

    Forgot to mention that those properties in the country mostly west of Rt. 1 fall under a different set of county ordinances mostly under agricultural definition.
    Here for HOA the Florida Statute 720:

  7. John says:

    This ordinance also circumvents the Keating Memorandum! Why did they do away with many of the safety requirements, such as fire sprinklers and railings!

  8. Ron says:

    Our State representatives need to place these vacation rental homes in their proper occupancy classification which is an R1 occupancy group. The Florida Building Code revision needs to be updated to reflect these dwellings. They also need to reverse their decision on sprinkler requirements. Our representatives where lied to by the vacation rental industries in 2011 when the pass bill HB883. The vacation rental industry took away home rule from all counties and cites in Florida. All these manicplities should be able to decide where these businesses belong in their communities. One size does not fit all.

    There is one particular Senator Diaz from Miami that believes that the vacation rental industries rights are above the voting public is his community. Ask that senator if he would live next to a transient public lodging establishment? I ask all our representative to return home rule. It should have never been taken away.

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