Citing uncertainty about statewide legal ramifications and skepticism about their local effects, Hermosa Beach’s Planning Commission declined Monday to support a draft ordinance that would permit and regulate short-term vacation rentals in a segment of commercial properties in the city.
The decision leaves in place a kind of legal limbo for short-term rentals in nonconforming residential units in commercially zoned areas. After months of work on the topic, commissioners and staff had crafted a possible ordinance, but rejected it by a 3-2 vote. The ordinance, and the commission’s recommendation to reject it, now head to the City Council for final action.
The City Council passed a law in May clarifying what staff have termed an existing ban on short-term rentals in residential areas. That ordinance, which the city began enforcing at the end of August, left open the possibility of allowing the rentals in the nonconforming residential units, and the council had asked the planning commission to study the issue.
According to a tally from city staff, there are 55 properties containing 168 residential units that meeting the nonconforming definition. Part of the motivation for treating these properties differently from those in residentially zoned areas is that by virtue of their location the noise and side-effects they produce potentially would be less likely to affect residents in their homes.
Over the last six months, commissioners cobbled together a detailed set of regulations, including mechanisms for dealing with problem properties. But while they were able to come to agreement about what an ordinance ought to look like if the rentals were allowed in nonconforming units, commissioners were less confident about whether the practice itself should be permitted in the first place.
Commissioner Dave Pedersen said that threat of raucous behavior, which drove the council’s action in May, was equally present in the nonconforming units, and that the new legislation was ill-equipped to address it. And Commissioner Peter Hoffman questioned the wisdom of incentivizing nonconforming units to remain nonconforming, rather than attempting to bring them into compliance with updated code.
Chairman Michael Flaherty countered that this was an unrealistic hope. Flaherty and fellow commissioner Marie Rice did a walking survey of all of the identified properties, and his observations convinced him that the extent of the changes that would be required for nonconforming uses, particularly in terms of providing parking, meant that they were unlikely to occur regardless of the laws in place. According to a staff report, many of the structures are old, dating to a pre-1980 zoning code.
“The odds of having a nonconforming property coming back into compliance is about zilch,” Flaherty said.
The broader concern animating discussion, however, was the impact of regulating short-term rentals on the pending approval by state officials of critical planning documents, including the city’s Local Coastal Program (LCP).
Hermosa is in the process of updating its General Plan and is seeking approval of its LCP from the California Coastal Commission. Like some three dozen other coastal cities in California, Hermosa does not have a certified LCP. Under the California Coastal Act, all “development” in the coastal zone in cities without an LCP requires a Coastal Development Permit (CDP) from the state commission.
In the run up to the council’s May vote, Coastal Commission staff sent letters two letters to the city, expressing concern that banning short-term rentals could undermine the Coastal Act’s mandate of encouraging beach access. At the time, some uncertainty existed over whether the letters from staff reflected the viewpoint of the voting commission members. The city received a letter Monday from Commission Chairman Steve Kinsey, indicating that an “outright” ban could run afoul of the Coastal Act.
“We do not believe that regulation outside of the LCP/CDP context (e.g. outright vacation rental bans through other local processes) is legally enforceable in the coastal zone, and we strongly encourage your community to pursue vacation rental regulation through your LCP,” the letter stated.
Allowing short-term rentals in the nonconforming units has previously been discussed as a kind of compromise that could enhance the likelihood that the Coastal Commission would approve Hermosa’s LCP, giving the city greater local land-use control. Approximately half of the identified nonconforming properties lie in the coastal zone, typically defined the area within 1,000 yards of the mean high-tide line.
But the commissioners were loathe to act. They cited ongoing uncertainty about the commission’s position, as well as a lawsuit against the city involving short-term rentals and the Coastal Act. And they appeared unwilling to bend too far to accommodate state officials.
“If we are doing this to appease the Coastal Commission, I think we should dig in our heels and say no,” said Commissioner Rob Saemann.
