State Preemption Puts Neighborhoods At Risk

by Larry Schopp, Chair, COTI Land Use Planning Committee

January 14th marked the beginning of the sixty-day Florida legislative session. If history is a guide, that’s a period that should cause a bit of anxiety for all of us, but especially for people concerned about the preservation of local home rule. Of the thousands of bills pre-filed by legislators were a handful of preemption measures, one of which in particular should set off alarm bells for anyone who believes residential neighborhoods are important to our social fabric.

HB 1011 and SB 1038 introduced

HB 1011 and SB 1028, its senate companion bill, would completely eliminate local regulation of short-term rentals, including neighborhood specific limitations on their duration. Instead it would treat them like hotel rentals with a “one size fits all” set of state regulations justified, judging by the legislative findings, by an expansive view of property rights — but also calculated to maximize tourism and the bed tax.

The state preempted local regulation of the duration of short-term rentals in 2011 but grandfathered cities like Sanibel that had laws in place at the time. Though Sanibel appears for now to be largely off the hook because its regulations on duration of rentals would remain grandfathered under HB 1011, it would take the deletion of only one sentence during hearings to void those regulations. But we’re not entirely off the hook. The City’s recently enacted ordinance requiring licensing and registration of rental properties would be nullified, making it difficult to monitor and police rental practices. For that reason and because we believe preemption of short term rentals tramples home rule we are opposing HB 1011 and its companion bill.

Flawed legislative findings

Leading up to a scheduled January 21st hearing, COTI wrote members of the House Subcommittee on Workforce Development and Tourism to let them know why it opposes HB 1011 starting with the flawed legislative findings that are its underpinning. Here is what we told committee members:

“Among the findings recited in HB1011 is an expansive view of constitutionally protected property rights relating to “vacation rentals.” Property rights are not absolute. They are subject to reasonable restrictions that further public health, safety and welfare. Otherwise we would not have local zoning, the very basis of community planning recognized by state law. While few would suggest that home owners may be barred from renting their homes at all, restrictions on the duration and frequency of vacation rentals and their regulation in ways that accommodate tourism is not unreasonable. HB 1011 lacks balance in that it fails to take into account any reasonable local interest in regulating vacation rentals.

Troubling as well is the finding in HB 1011 that “Vacation rentals are residential in nature.” Residences are places people call home. When we spend a long weekend or week at a beachfront resort we don’t consider that resort our residence. Our residence is the place we return to when the vacation is over. It’s the place where we have neighbors with whom we interact socially and depend on in times of stress or emergency. That’s the essence of a community, and it’s not found in resorts.

Our fear, born out already, is that when homes in residential neighborhoods are converted to vacation usage — that is short term rentals of a week or less — the sense of neighborhood is lost and the conversion to vacation usage escalates. With the substitution of vacationers for true residential occupants a neighborhood loses its essential character and becomes an array of small resorts with anonymous interval occupants coming and going.

In communities like Sanibel, the social fabric is based largely on volunteerism — residents giving of their time and energy to further local societal values like helping neighbors in need or protecting sea turtles eggs on the beach from predators. Volunteers are residents—people who live in a community—not vacationers. If you as legislators treat vacationers as residents you risk destroying, over time, the very basis of volunteerism in our local communities. We see that happening already and fear that if HB 1011 is enacted it will simply speed up that process.”

Overwhelming opposition to HB 1011

There was overwhelming opposition to HB 1011 from speakers representing cities throughout Florida and just a few comments in favor of the bill during a hearing before the House Subcommittee on Workforce Development and Tourism, on January 21st. When the comment period ended the committee favorably reported HB 1011, with a few suggestions for improvement. Both HB 1011 and SB 1028 must still clear two more committee hearings before they’re sent to the house or senate for a vote but they appear to have momentum.

According to the Florida League of Cities, seven in ten voters believe local governments, not the state, should govern short term rentals. Judging as well by comments made at the January 21st hearing, home rule matters to Floridians, particularly when their neighborhoods are affected. Legislators need to listen to what their constituents are saying and significantly improve or short circuit these bills before they reach the full house and senate.

COTI invites the community’s input on this and other issues affecting Sanibel at coti@coti.org. To read past commentaries on island issues, visit wwwcoti.org or www.facebook.com/committeeoftheislands.