Flagler Gives Initial Approval to Vacation Rental Regulations and Pledges Revisions

For the past three years, the Hammock in Flagler County has been the scene of a civil war without the guns.

On one side of the conflict you have property owners who bought homes to live in the Hammock. They assumed they were buying homes next to similarly minded neighbors, who like the Hammock for its peace and lushness. They’ve been disappointed.

On the other side of the conflict are property owners who’ve been renting their houses to short-term vacationers, or building houses with short-term vacationers in mind. The Florida Legislature changed the law in 2011 to make it easier for property owners to do just that. The new law essentially forbade local governments from regulating short-term rentals. It was intended to help owners defray big mortgages made heavier by the housing crash. Many homeowners jumped on the occasion.

But short-term renters can be noisy and numerous. So noisy and so numerous that the more settled homeowners in the Hammock mobilized to get the 2011 law changed back to something that would let local governments reassert some regulatory control. Flagler led the charge at the Legislature, and in the last session it worked. The Legislature returned some powers back to county and city governments to regulate short-term rentals, while making provisions to protect property rights—including the right to use a house as a short-term rental property.

What victory that may have signified for the Flagler County Commission was short-lived. The county administration had to draft those new regulations. It just did. By doing so, the administration re-ignited the conflict between the Hammock’s two camps of property owners: those who want their peace back, and those who want their property rights, including the right to do with their property what they please, protected.

The proposed ordinance went before the county commission Monday morning. It was afternoon, three hours later, by the time the commission unanimously approved the ordinance on first reading (with Commissioner Barbara Revels abstaining, because her building business has had relationships with some of the property owners in play). But every commissioner stressed that the ordinance had to be reworked to accommodate concerns raised by property owners who largely oppose the ordinance.

Property owners from both sides appeared before commissioners today, making long, at times tearful, at times adamant requests—some of them verging on demands—that the ordinance be either approved or rejected. It was a replay of similar battles in the same chamber last year and the year before, when the same property owners sought either to convince local lawmakers to take up their cause to change the law (back to home rule) or to leave the law and their property rights alone. The only difference today was the tangible, 25-page ordinance that would define what regulations Flagler County would put in place.

The ordinance makes explicit requirements. Among those: Occupancy would be limited to one person per 150 square feet of living space or in accordance with septic tank regulations. No more than two people would be permitted to sleep in any bedroom (forget those ménages à trois, vacationers). In certain districts, maximum occupancy would be limited to eight people, including day guests, while other districts could have occupancy of up to 16, including day guests. A minimum of one parking space per three occupants would have to be provided, while on-street parking would be prohibited.  “Quiet hours” would reign between 10 p.m. and 8 a.m., but the ordinance leaves undefined what “quiet” means, and leaves it to police discretion to determine if renters are disturbing the peace—a form of discretion Flagler Beach found troublesome, absent actual decibel parameters, when developing its noise ordinance over the past two years. Property owners looking to rent would also have to have a short-term vacation rental agent who would have to not only be “customarily present at a business location within Flagler County,” but would have to live in the county and be available by phone 24 hours a day, seven days a week, and “be willing and able to come to the short-term vacation rental unit within two hours” of being notified of issues by the owner, an occupant or county government.

In addition, property owners would have to pay for an annual certificate from the county to use a property as a rental. The cost has yet to be set, though the application would require detailed drawings of the property, and the county would have to inspect the property before issuing the certificate. Once occupied, the rental agreement for each short-term lease would have to include the names of all occupants and license tags of all vehicles—requirements even hotels generally don’t impose on guests. The ordinance would also require the posting of information, such as rental agent name and contact, on each dwelling’s main door or back entrance, among other requirements. And every such short-term rental property would be required to have a land line. This in an age when landlines are going the way of newspaper subscriptions.

Violations would lead to warnings and fines in amounts not yet set by the commission, and, on a fourth violation, suspension of the certificate for seven days. A fifth violation would lead to a 30-day suspension, with each subsequent violation adding another 30 days.

Opponents were not happy.

But before they spoke, County Attorney Al Hadeed stressed: “It absolutely is not a done deal,” he told the county commissioners this morning. “You’re going to see an edited version come back to you, guaranteed, and it’s going to be based on the input and further analysis. And I’m sure—I haven’t heard your comments yet—but I’m sure you may provide us direction that we’ll need to work with. Plus there’ll be meetings that are conducted, I know that the administrator has one already set up, and from that kind of input we will make changes. So it’s not a done deal, absolutely.”

Nevertheless, the commission and the administration were criticized by property owners and rental agents for being more exclusive than inclusive as the ordinance’s first public version was crafted—although at any time in the process anyone was entitled to request, and receive, copies of drafts at any stage of their drafting, and the administration did entertain meetings with interested property owners.

But he also noted that when Flagler was going through the legislative process, the county attempted to meet with the rental industry, “and they would not meet with us,” Hadeed said. “I just want people to know that. We haven’t really advertised that, but I need everybody to understand that, and instead, our efforts were denigrated, that is, we were relegated to oh, it’s just a local problem, only in Flagler, and there’s some real simple ways to fix this. And they gave me models, they said here, look at these, because I said, well, what is it do you think we should do? So they sent me a couple of models I looked at, totally unsuitable for our government.” For example, some models applied to college towns, an entirely different situation than in the Hammock, where turnover is more frequent.

Only then the verbal conflict between the two sides unfolded before commissioners as property owners and representatives from each group spoke its mind. Administrative staff listened along, noting what was said.

Barbara Eder, a five-bedroom rental home owner spoke of her Thanksgiving that draw up to 30 people. Wayne Flowers, a Jacksonville attorney representing agencies and vacation-rental property owners individually, disputed Hadeed’s claim of inclusion. “As a consequence, my clients were surprised when the ordinance came about,” Flowers said.

Linda Hager spoke of building her “dream home and investment home” in the Hammock, describing hers and her husband’s property rights as the right to quiet, and describing a “mega-mansion” with 10 bedrooms. “We do not object to owners renting their homes,” she said, “but packing 24 loud vacationers in a home, 10 to 15 feet away from you, is violating our rights as homeowners. The proposed rules allow rentals but with an occupancy appropriate for various areas in the county. No need to cry about foreclosures because rentals are still permitted.”

She was immediately followed by a property owner who spoke for himself and his family when he described the proposed ordinance as an attempt not to regulate but to “completely suffocate mom and pop businesses or short-term vacation rentals in Flagler County. The requirements laid out in the proposed ordinance would lead to tremendous expense, expense which is untenable for a home that is typically rented by two to four people for just a few weeks per year. Our revenue from vacation rentals is currently lower than our property taxes.” He said the proposal “hurts the innocent far more than the guilty.”

And on it went, with speakers from both sides urging adoption or repeal of the proposal, and some speaking to what room may exist for compromise.

Even though commissioners approved the ordinance on first reading, they spoke of their unease about it. “We are talking about an ordinance that is being proposed to cover one size fits all,” Revels said, “and we do certainly have areas of the community that are different from other areas. When I say that I speak to properties that are not in gated communities, not in planned unit developments, where they may have a large amount of space around their property. I had one particular owner say to me, I’m completely—you can’t see my house, you can’t see cars. I worry about the fact that there might be appropriate rentals that could handle something larger in a different location, not in these communities where there are small lots and they’re very closely built together.” She added, wanting the ordinance to move ahead but also to be worked over: “There’s just been people here that have not handled their duties and responsibilities well.”

Commissioner Nate McLaughlin described the effort as “all about balancing adjoining property rights.” But he took issue with the requirements that property owners “shall” have a property manager. He wants owners to be their own agent—a provision County Administrator Craig Coffey said is in the ordinance already, but perhaps not as explicitly as McLaughlin says he wants it. Commissioner Frank Meeker had no amendments: he moved to adopt the ordinance (it was largely through his and Commissioner Charlie Ericksen’s efforts, and through numerous trips to Tallahassee, that the law was changed on Flagler’s behest).

The ordinance was scheduled to return to the commission on Nov. 17 for second and final reading—that is, approval. Coffey said he was not prepared to do that, with the work due between  now and then.  So the second reading will be postponed, with a second reading likely in late November or early December.

Flagler County’s Proposed Vacation Rental Ordinance (2014)