Tuesday: Planning Board to Vote on Short-term Rentals in Multi-family Districts

The City of Miami Beach Planning Board will hold a public hearing on Tuesday May 26th at 3:00 PM at City Hall Commission Chamber (3rd Floor, 1700 Convention Center Drive, Miami Beach) regarding the Short-term Rental of Apartments or Townhomes in Multi-family Zoning Districts. See the Agenda posted here.

This will be the second public hearing on this item. At the conclusion of the first public hearing the Planning Board requested the City staff provide more detail regarding the zones and neighborhoods affected.

The staff has prepared a report outlining some information such as homesteads by neighborhood, zones by neighborhood, and recognizing the use of bed and breakfast inns, suites hotels, and apartment hotels already allowed in multi-family historic districts.

Staff indicates that short-term rental of apartments is occurring in multi-family historic districts, and the ordinance is designed to offer some protection to mitigate any issues that might arise in the future.

The ordinance will help to guarantee the right of property owners to rent their apartments, or condominiums with association approval, with the flexibility provided under State housing laws.

Please let the board know how you feel. Attend the meeting. If you cannot attend, please send an email to the Planning Board letting them know you support the ordinance for your neighborhood.

gappel@taxadjusters.net; jon@frydproperties.com; dveitia@urbanresource.com; henrystolar@bellsouth.net; rweisburd@apmanagement.net; fksobe@bellsouth.net; information@jskarchitecturalgroup.com;

Founding Father's Statement For Government Protected Property Rights

"The moment the idea is admitted into society that property is not as sacred as the laws of God and that there is not a force of law and public justice to protect it anarchy and tyranny commence. If ‘Thou shalt not covet,’ and ‘Thou shalt not steal,’ were not commandments of heaven, they must be made inviolable precepts in every society before it can be civilized or made free." John Adams

Director's Interpretation - Seperating Fact From Fiction

On Tuesday August 26th, the Planning Board is scheduled to vote for or against the Codification of Director's Interpretation 00-2. This Interpretation has been used to empower the City's code enforcement actions against single-family homeowners.

As many have pointed out, the Director's Interpretation mis-represents the actual code and/or improperly inserts wording into the City Code that does not exist in order to reach a desired conclusion. This makes the Interpretation legally unenforceable.

One of our supporters has submitted a detailed critique of the Director's Interpretation. It contains factual quotations of City Code in order to clarify the legal issues with the Director's Interpretation.

We have verified the Codes quoted in this analysis, and we recommend that the Planning Board reject the Codification of Director's Interpretation 00-2 and that the City cease all code-enforcement actions based on this Interpretation.

Rent Control - Here We Go Again

Some may remember the days of rent control on Miami Beach; when property owners could not afford to maintain their buildings because rent control restrictions prevented them from setting rates to cover costs (taxes, insurance, maintenance, etc.).

Many property owners walked away from the losing proposition of having a real estate investment that would not make money, could not be sold, and was declining in value because all around them other property owners were in the same situation.

During the late 70's and early 80's Miami Beach was a den of urban blight. Many buildings were boarded up, businesses closed, investment moved elsewhere and the City was nearly bankrupt. Many "flop houses" opened, head shops lined Washington and Collins Avenues, and every Friday night Miami Vice was broadcasting our troubles around the world.

The City's current proposals to prohibit short term rentals is setting controls on rents which is strictly regulated by Florida State Statute 166.043. Click here to read an analysis by one of our members which draws the connection between rent control and the City's proposed ordinances.

Miami Herald reporter, Monica Hatcher, has recently written several articles focusing on the impact of foreclosures and efforts to combat the blight they cause.

Cities struggle to fight foreclosure blight
Condo bust draws scams and squatters
Mayors seek solutions to vacant-homes crisis

Proposed Code Changes - Miami Beach

The Miami Beach Commission has asked that two different tracks be drafted for changes to the Code regarding residential rentals .

One is meant to put into code the City Planning Director's interpretation of the current code - meaning, to prohibit rentals of less than 6 months.

The other is to change the code to allow "Seasonal Rentals" (less than 6 months but greater than 90 days) with great restrictions and regulation.

These ordinances pertain to the rental of properties in RS-1 thru RS-4 (single family homes), the drafts of Ordinances for condominiums and other multi-family, multi-unit properties have not yet been finalized by the City Attorney's office. They will be posted once they are made available by the City.

One of our members has written an item by item breakdown of flaws with the proposed Code. Click here to view the document.

Click on the links below to view the drafts.

Prohibition of Rentals Less Than 6 Months
Prohibition of Rentals Less Than 90 Days

Click the links to read the Staff Reports for the Codification to Prohibit Rentals Less Than Six Months and the Ordinance Regulating Rentals Less Than 90 Days.

Please read the staff recommendations carefully. Do you think the staff evaluations are myopic, incomplete, and one sided?

Does the City not see that these ordinances are bad public policy and bad economic policy?

Planning Director's Interpretation of the Code in 2000

Click here to see a copy of the Planning Director's "Administrative Interpretation" of the City Code, regarding minimum rental duration for a single famly home. Following the photo is a list of reasons why this interpretation is incorrect.

Despite the illegal and invalid interpretation of the code, the Code Enforcement Department has been and continues to issue violations to property owners for renting property for less than 6 months.

___________________________________

Question: Is the Planning Department Director’s interpretation correct?

Answer: No. The Director’s interpretation is incorrect.

The city code DOES NOT require the payment of resort tax for rentals of less than six months, unless the rental is a “room” in a hotel, motel, rooming house, or apartment house in the City of Miami Beach.

The City Code states:

Sec. 102-306. Definitions.

Room means
any room of any kind, in any part or portion of a hotel, motel, rooming house or
apartment house available for or let out for use or possession for any purpose
other than a place of public assembly.

Sec. 102-307.
Imposition of tax; rate.

(a) There is hereby
levied and there shall be paid a tax of three percent on the rent of every
occupancy of a room or rooms in any hotel, motel, rooming-house, or apartment
house in the city, and two percent upon the total sales price of all items of
food, beverages, alcoholic beverages or wine sold at retail of any
restaurant.

The City Code relating to Resort Tax DOES NOT apply to single family homes. City Code Section 102 does not define or make any reference to single family homes, and the requirement to pay resort tax.*

Therefore, single family homes rented for less than 6 months are NOT REQUIRED to pay resort tax to the City, and do not meet Section 102 definitions for hotels, apartment houses, rooming-houses, etc…

There are no City Codes limiting the duration of rentals of single family homes within the City of Miami Beach.

The rental of a single family home for less than six months is NOT a commercial activity.

Tenancy-at-will rentals (weekly, monthly, quarterly, etc.) of single family homes are thus legally allowed within the City of Miami Beach in RS 1-4 districts.

*Note: Since there are no clear codes regulating the duration of rentals in RS 1-4, the property rights of single family homeowners are protected by State Law. For example, The Fourth District Court of Appeal in City of Hallandale v Prospect Hall College, Inc., 414 So.2d 239, 240 (Fla. 4th DCA 1982) found that: “Since zoning regulations are in derogation of private ownership rights, general zoning law provides that zoning ordinances are to be construed broadly in favor of the property owner absent clear intent to the contrary. 7 Fla.Jur.2d Building, Zoning and Land Controls §59 (1978).” The premise espoused by the Fourth District Court of Appeal in City of Hallandale was followed by the court in Ocean’s Edge Development Corp. v. Town of Juno Beach, 430 So.2d 472: “Government cannot function in such after-the-fact fashion; property owners are entitled to rely upon the clear and unequivocal language of municipal ordinances. This principle is not innovative, nor does it originate with this court.”

Short Term Rentals - History

In 2000, the Director of Planning and Zoning was asked to interpret the City's zoning code pertaining to rentals of non-commercial property. He interpreted the code to state that rentals for periods of less than 6 months are prohibited (click here to see a copy of the interpretation).

The Zoning Code can be found in Chapter 142 of the City Code at http://www.municode.com/resources/gateway.asp?pid=13097&sid=9.

In the City's attempt to banish so-called "party houses", the City passed an ordinance in February prohibiting the "commercial use" of residential zones (R-1 through R-4).

The City's next step is to codify the prohibited rental of residential property for less than six months. This will further prevent party promoters from renting houses and having gatherings.

However, it will also prohibit anyone (seasonal workers, new residents shopping for a permanent home, tourists, convention goers, visiting families, etc.) from renting short-term.

Please click here to read the "Party Ordinance" to understand the background surrounding the short-term rental ban.

Recently, some property owners have received code violations for renting non-commercial units (single family homes, apartments, condos, etc.) for less than 6 months. These include furnished and unfurnished rentals. Additionally, some property owners have been issued violations even though they have resort licenses and pay the City's resort tax. This prompts the question "Why does the City issue licenses and collect tax for rentals they say are prohibited by the code?"

The City's resort tax is listed in Chapter 102 Article IV of the City Code which can be found at http://www.municode.com/resources/gateway.asp?pid=13097

Now, the Mayor and City Commission have asked Planning and Zoning to draft new ordinances to give the Commission two options:

1. Prohibit rentals of less than 6 months in duration, or
   
2. Allow short term rentals but not less than 90 days and no more than 3 rentals total in a 12 month period. There are many other restrictions that are worth reading (number of renters, local representatives, licensing, etc.).
   

The Planning and Zoning Committee will be meeting on 6/24/2008 to discuss these code changes. Contact the Mayor and City Commissioners before this meeting to let them know how you feel.