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Civic forum debates Beach rental issue

May 1, 2013
By BOB PETCHER ( , Fort Myers Beach Bulletin, Fort Myers Beach Observer

A 10-year-old issue on Estero Island received varying viewpoints and some conclusions during an open public forum held by the Fort Myers Beach Civic Association at the Beach Library Thursday afternoon.

Debate on regulation of the Town's short-term rentals in residential neighborhoods produced a little more insight and clarification about rental restrictions and an equity issue among affected properties, owners and realty groups.

The issue, currently within an ordinance under zoning regulations adopted in 2003 in the Town Land Development Code, is primarily focused on dwelling units rented for six months or less in residential zoning districts, chiefly single family homes. The RS (resident single family) zoning district involves a minimum term of one-week rental with one rental period per month. RC (residential conservation) deals with one-week rental periods without limitations per month.

Article Photos

Beach resident Tom Babcock discusses issues relating to the short-term rentals.

"When the ordinance was adopted, it prescribed a period for those people who own homes in the RS zoning district to come in and register to effectively be 'grandfathered' against that one rental period per month restriction," said Community Development Director Walter Fluegel.

Fluegel stated there were roughly 60 properties that initially registered in the RS zoning district at that time. The ordinance also required those properties owners/agencies to come in for an annual review of the registry to maintain that 'grandfather' status.

"As of today, I believe we are down to 30 single-family homes that are on that registry," said Fluegel.

Former Town Councilman Tom Babcock debated for regulation and discussed issues relating to zoning; safe, illegal, problematic rentals; and nuisance problems (noise, parking, garbage removal, too many occupants within dwelling, late parties).

He supported bringing the Town proposed ordinance of 2011 back to Council's attention. That draft ordinance was withdrawn before it reached a public hearing.

"Prior to 2003, there were a lot of investors coming down here and buying single-family homes for the sole purpose of renting," said Babcock. "We probably wouldn't have noticed them except it turned out to be rented to weeks of spring breakers, Cincinnati firemen and people who were here to party. It was that recognition that more and more of these homes were being rented that drove the Town to say we need to find out what to do in those areas."

Realtor/broker Jessie Titus debated against regulations by citing it was a taking of rights. She stated people have lost their homes due to foreclosure because of lost income that could have been generated from short-term rentals.

"People who owned had to prove that they rented previously. If they could not prove it, they could not be 'grandfathered' in," she said. "So, people who owned that never rented did lose the right to rent. People have been financially harmed."

By the end of the session, there was obvious agreement between the two debaters on a needed registration process for all rental units on the island, yet there still appears to be a struggle for self-identity between tourism and family.

The monkey wrench in the whole deal could be a state statute that reads a local law or regulations adopted before June 1, 2011 may not restrict the use of vacation rentals, prohibit vacation rentals or regulate vacation rentals based solely on classification use or occupancy. In June 2011, Gov. Scott signed House Bill 883 into law to create that statute.

In essence, the implemented statute strictly limits what a local government can do looking forward. Thus, existing regulations from 2003 "cannot be substantially changed or amended."

"If changes are proposed to the current ordinance, it could subject the Town to a challenge that violates the statute," said Town Attorney Marilyn Miller. She currently is doing more research on the matter.

Provisional enforcement on short-term rental regulation has been deemed laborious.

"Prosecuting a short-term rental case is monumentally more difficult," said Fluegel.

"We try to focus our attention on those cases where we have some opportunity to be successful." added Town manager Terry Stewart. "The best thing to do is take a pro-active approach through community conversation, much like we are having right now, and Council workshops and decisions where they decide what policy direction to take."

Both Babcock and Titus believe all rental units -not just short-term rentals- should be held accountable, such as the many "illegal rentals" that are not registered with the Town and do not pay County and State fees. A separate ordinance can attain that.

"I believe every rental should be registered and subject to inspection," said Titus. "We need a good neighbor code of conduct and phone numbers where we can get a hold of somebody. We are forcing people to lie. Enforcement is almost impossible. Tight-fitting trashcan lids should not pertain to just 32 properties. There has been a lot of harm and that is what bothers me most about it."

Babcock thinks registration should be separated from zoning.

"You can put a registration in place for short term and long-term rentals, and it will require safety and fire inspections. An ordinance can also include a 24-hour call office, a requirement for rental agents to educate the people who stay in their units with regulations of the Town. Those regulations make this place a desirable place to live."

The forum was opened up to comments and questions that were addressed to the panel of Town officials and the two debaters.

"A lot of rights have been compromised. It hasn't been done appropriately," said one attendee. "If other people wish to rent their property, there should be a way to do it legally."

"Before anything can be rescinded, you have to have rules in place," said another.

Time, effort and public hearings would be required before any ordinance is rescinded. But, even if those processes occur and the ordinance is rescinded, the state statutes may come into effect.

A supply and demand factor was brought up. One rental agent stated all of her short-term rentals are full during season and that she is forced to turn would-be renters away.

One attendee urged Town officials to seek correct legal answers instead of opinion to move forward.

"I think we should put some questions together and have Council direct staff to send it to the Florida Attorney General's office and get some legal facts to let us know what will happen if we open up this ordinance to a change," said Tracey Gore. "Once you open up this ordinance to tweak it, you can lose everything that is in there."

That is why Babcock is for a separate ordinance. He stated registrations should require a license number to be issued by the Town that has to be included in any advertising. That idea was well received by attendees.

"That way, it is pretty easy to find out if they are paying their bed tax, sales tax and whether they are homesteaded or not," he said. "It also provides protection for everybody."

Town officials are still in the process of reviewing all materials involved with the current ordinance, draft ordinance and state statute from a workshop they held in early April. Expect the rental issue to come up again most likely in another Town workshop before it reaches a Council meeting.



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