On August 2, 2013, San Diego County Code Compliance Officer Tom Causey issued a citation to Terrence Burke, the owner of “Hacienda Burke,” a $500 per night vacation rental in Fallbrook, in San Diego County’s unincorporated area. Mr. Burke rents his home, which is his primary and permanent residence, for a few days to several months at a time.  


Page 3 of the August 2, 2013 citation referenced a violation of Section 1545d.  Mr. Burke was fined $100 and contacted Teresa Platt who also rents her home, for short and long-term rentals, on the other side of Fallbrook.


There were almost 4,000 vacation rentals in San Diego County in 2013, 500 of which were in LaJolla.  When one removes the incorporated Cities from this list, there are almost 1500 vacation rentals in the County. 


In September of 2007, San Diego City Attorney Michael Aguirre delivered an extensively researched letter to the San Diego City Council.  The letter is worth reading. He concluded that rental contracts with San Diego County visitors are legal.  He also reviewed regulations related to short-term rentals enacted by various incorporated Cities in the County and in California.  He focused on short term rentals, defined as rentals of 30 days or less.  San Diego County collects an 8% “transient” occupancy tax (TOT) on such rentals and this income is used to promote San Diego as a vacation destination.  Mr. Burke and Ms. Platt, along with thousands of others in the County, collect and submit 8% on such rentals every quarter.  Those located in the incorporated City areas often pay more. 


On August 7, 2013, Mr. Causey entered Mr. Burke’s property and questioned his guests, four Catholic priests vacationing from San Francisco. That same day, one of the priests (Michael A. Zampelli, Rector of the Santa Clara Jesuit Community) meticulously detailed the visit in an email to Mr. Burke:


“I am writing you ... because we had a visitor earlier this afternoon and I feel that I should tell you about him.  His name was Tom Causey, Code Enforcement Officer for the County of San Diego.  He came to the house, identified himself, and asked us to explain what we were doing here.  We told him that we had rented the house through VRBO for our annual vacation.


When we asked if there was a problem, he responded that there was not a problem with US (no neighbors complaining of noise or rude behavior or anything like that) but that there was a problem with zoning restrictions in the area.  Neighbors seemed to know that we were not full-time permanent residents of the home and alerted his office; he came to ask some questions.


So, I gave him basic information (my name, my address, the length of our stay, the rental fee).  I also told him that we were four Catholic priests on our annual vacation and that we weren't the type to be making any trouble for the neighbors!


He assured us that this would not affect our stay, but that he would have to be in touch with you again about zoning restrictions.”


Mr. Burke hired a lawyer with a $5,000 retainer, stopped booking his home and appealed the August 2, 2013 citation. He was told he would have a formal hearing on his appeal but first, on August 22, 2013, Mr. Burke met with Mr. Causey.  Also attending the meeting was Bill Lewis, the broker/owner of Haywood & Stone Realty in Rancho Santa Fe, an unincorporated area of San Diego. 


Mr. Causey stated that the issue was not noise, parking or the length of the rental contract.  The issue was that the guests did not make the home their permanent residence and, based on this interpretation of Section 1545d, Mr. Burke’s upcoming rental for two months in early 2014 would also be illegal.  Mr. Causey noted that any use not specifically allowed in the County Code was illegal.


Mr. Burke reported the results of the meeting to Ms. Platt  who has contracted for short and long-term rentals of her home, her primary and permanent residence, renting for as long as six months.  None of these renters changed their mailing address while in her home.  In reviewing Mr. Burke’s citation, which referenced limited agricultural use zones, it was unclear if the citation was limited to Mr. Burke’s Ag-70 zone or Platt’s R zoning.  After Mr. Burke’s August 22 meeting with Mr. Causey, it was clear that 1545d would render illegal tens of thousands of rental contracts, long and short terms, all over the County, without improving neighborhoods in the slightest. In fact, by forcing owners to rent only to “permanent” residents, the result could actually be a decline in neighborhoods and quality of life. Clearly a 365-day rental to a family of 10 creates greater noise and parking issues in a neighborhood than renting 150 nights a year to parties of 4 to 10 who arrive in one to four rental cars and are gone most days enjoying all San Diego offers our valued visitors. It should be noted here that Mr. Burke has nine children and he, and they, split their time between Fallbrook and Los Angeles.


Ms. Platt researched Section 1545d. 


Section 8/1545d was a paragraph included in a temporary special use permit authorizing Farmers’ Markets in San Diego County, Ordinance 9958 passed by the County Board of Supervisors in a meeting on December 10, 2008. 

 

Section 8/1545 of the San Diego County Zoning Ordinance was amended to read as follows:


1545            TRANSIENT HABITATION.

Transient Habitation refers to establishments primarily engaged in the provision of lodging services on a less than weekly basis with incidental food, drink and other sales and services intended for the convenience of guests.  The following are Transient Habitation use types:

[a. through c. no change.]

d.         Transient Habitation:  Rental Units.  Residences, condominiums, apartments and townhomes that are rented on a daily, weekly or monthly basis.  When used in this way, a rental unit is not occupied by the owner nor is the occupant using the rental unit as his or her primary or permanent residence.


Page 137 of this document  includes columns about Section 1545 in the County Code.  It appears to indicate that 1545 use is not allowed in R or A-70 zoned properties. 


Based on this research, Ms. Platt contacted Candyce Yee in County Supervisor Bill Horn’s office on August 22, 2013.  


On August 29, 2013, the following voice mail was left on Ms. Platt’s cellphone:


"Hi, Teresa.  It's Eddie Sprecco, with Supervisor Bill Horn's office. I wanted to get back to you on your issue with short term rentals. 


We have been working with the chief of code enforcement, as you know, Pam Elias, and she's going to be getting us clear direction on, an actual clear policy, of how they have been enforcing the County rules on that by early next week, hopefully on Monday. And if those don't show that we're able to do that, we'll start looking at kind of legislative solutions, if need be.


So, give me a call back if you want further clarification on that. Otherwise we'll touch base with you on Monday and get what Pam's answer is on the regulations for that sort of short term rentals.   


My number were I can be reached is 619-531-5420.  And, once again, my name is Eddie Sprecco, and I'm the Land Use Advisor for Supervisor Horn. 


Thank you."


On Sep 6, 2013, Candyce Yee of Bill Horn’s office reported:


Hi Teresa,

 

We heard back from Pam Elias today who still maintains that the Zoning Ordinance No. 9958, Section 8/1545 as listed on the County’s website does not allow for transient rentals of private residences. Eddie has a meeting today with Advance Planning to discuss the ordinance in more detail. After that meeting, he will speak with our Chief of Staff on Monday to determine what our next steps are.

 

Thanks,

 

Candyce


On Sep 12, 2013, at 10:57 AM, Sprecco, Edward wrote:


Teresa,

 

Now that it appears to be more than code interpretation the process for changing our ordinance could be lengthy. While I expect and answer back early next week, it will only be an answer on a work plan which would take some time with an uncertain outcome. 

 

I will stay on top of the issue, but want to make sure you know if a change in policy is required that it will not be a quick fix.


Thank you for your patience on this matter,

 

-Eddie

 

Edward Sprecco

Land Use Advisor

Supervisor Bill Horn

619-531-5420

Edward.Sprecco@sdcounty.ca.gov


This interpretation would render tens of thousands of rental contracts, short or long term, illegal.  Supervisor Horn’s office began the tedious process of policy change.


On September 12, 2013, Platt requested Ms. Yee and Mr. Sprecco provide copies of all correspondence related to the issue and asked that enforcement be curtailed:


From: Teresa Platt <teresaplatt.com@gmail.com>

Subject: Re: code situation

Date: September 12, 2013 11:37:56 AM PDT

To: "Sprecco, Edward" <Edward.Sprecco@sdcounty.ca.gov>

Cc: "Yee, Candyce" <Candyce.Yee@sdcounty.ca.gov>


Dreadful! Defending Constitutionally-protected property rights should not require a lengthy policy process! Any idea how long? Two weeks? Two years?


Am standing by to hear back early next week on the action plan.  Here's hoping it's just a few words to be added to the regs, to be passed quickly at the next Supervisors meeting. When is their next meeting, BTW? 


Amazingly, tens of thousands of homeowners in the County have no idea what's going on but one article in the Union Tribune could change that.  I am sure people would be shocked to learn that tens of millions of dollars in rental income, for short and long term rentals, all over the County, is at risk because someone wrote a couple of poorly worded lines and the Supervisors passed it. Add in the 8% County tax for the shorter term rentals and there is much to lose. 


While we go through this process to fix this disaster, will citations be put on hold or will Zoning be targeting people all over the County? 


Also, I would like copies of all correspondence on this issue to date, especially the Pam Elias' interpretation and the information relating to the review of the original intent of the regulation.  Can I find the pertinent documents online or can you please email them over? Or do I need to FOIA? 


Thanks much, Eddie.  I appreciate you and Candyce staying on top of this important issue. 


Teresa


On September 16, 2013, Clay Westling, Deputy Director, Planning and Development Services, called Ms. Platt, stating he was working on complying with the request for correspondence.  Discussion ensued.  Mr. Westling was positive that the citation issued to Mr. Burke must have been based on a noise complaint.  Ms. Platt detailed the circumstanced related to the letter the four Catholic priests vacationing from San Francisco.  In that letter the priests reported that the Code Officer admitted that no complaint had triggered his visit to Mr. Burke’s house.  Platt also noted that 1545d rendered her six month rental in the winter of 2012/2013 illegal since the tenant, who was in the process of finding and buying another home, did not intend to make the rental her permanent residence and did not change her mailing address; she simply forwarded mail to her office. She purchased a new home down the street and moved out 2 months early but, before she left, she held a wedding in the house, without a special use permit, without permission from her landlady, and without letting the neighbors know in advance.  Clearly a long-term rental of six months does not assure 100% peaceful neighborhoods. 


Ms. Platt also noted that her goal was to protect her greatest investment, her home, while producing the greatest return on that investment with the least amount of wear and tear.  Vacation rentals, over and under 30 days, are a perfect match for San Diego and her home. When in town, Ms. Platt resides next door, so she is a neighbor too.  Overall, Ms. Platt has been overwhelmingly pleased with the quality of her guests who have treated her home with respect.  They come from all over the United States and Canada;  from Scotland, Finland, England and France and are thrilled with their time here. Fully 30% are attending family weddings and Fallbrook has many excellent wedding venues that do not offer accommodations.  Often guests to the wedding stay in local hotels while the family of the bride and/or groom rent a house.


Clearly hotels work out well for many of San Diego’s visitors but many are more comfortable renting a home for their stay.  This is especially true for those staying in the area for more than a few days and those seeking special family time together.  Those with young children and/or disabled family members, and those traveling with specially trained work dogs or the family pet are also more comfortable in a house than in a hotel room.


On September 16, 2013, Ms. Platt emailed Mr. Westling the email from the Catholic priest along with other correspondence between Platt and Horn’s office, bringing him up to speed on the issue. 


On September 23, 2013, Carl Stiehl, County of San Diego’s Advance Planning Office, emailed Ms. Platt:


1) Copies of the requested correspondence  which referenced a December 2008 Board of Supervisors meeting.*


2) A September 20, 2013 letter from Clay Westling addressed to Ms. Platt committing the County to enforcing noise and parking ordinances, and lack of special use permits for large parties and weddings.  Section 1545d was not referenced in the letter but it was essentially a commitment to exclude that section as an enforcement vehicle. The letter states, in part:


“Thank you for bringing the issue of short-term residential rentals to the County’s attention. We are continuing to evaluate and research options for how short-term residential rentals will be addressed by the County and will get back to you as soon as possible. Until a permanent solution is found, the County will suspend code enforcement of short-term rentals. Investigation of nuisance-related matters (noise, excessive traffic, special events, etc…) will continue when reported.


In response to your Public Records Act request of September 12, 2013, we have enclosed the documents responsive to your request. Should you have any additional questions, please contact Carl Stiehl, at (858) 694-2216 or at carl.stiehl@sdcounty.ca.gov.”


On October 4, 2013, Mr. Westling called Mr. Burke and expressed regret over the situation. 


Section 8/1545d remains buried - somewhere - in the San Diego County Code.


Or is it? Mr. Burke’s attorney could not find the section in the Code and neither could Ms. Platt.  The FOIA’d correspondence between Supervisor Horn’s office and the County Code department made no direct reference to the pertinent section of the Code.


So Ms. Platt contacted those responsible for maintaining San Diego County’s online Code.  They searched the Code with no success. The October 11, 2013 response from TechSupport@amleal.com follows:


=================

Teresa,

 

If San Diego County gave us those changes to put into the code then they would have been added at that time. I have searched for the number 9958 and gotten no hits, so it is not in the code at all, sometimes references to ordinances are left in histories and you can find out information that way but not in this case. I have searched for Transient Habitation and only found once instance of that term in Sec. 810.102 as part of a definition.. The San Diego County code is updated online frequently, I will put the currency information below:


Code of Administrative Ordinances
Current through Ord. No. 10276 (N.S.), effective 9-5-13, and Ord. No. 10278 (N.S.), effective 8-6-13

Code of Regulatory Ordinances
Current through Ord. No. 10275 (N.S.), effective 8-30-13

The Zoning information is in the Code of Regulatory Ordinances, Title 8, Zoning and Land Use Regulations.

 

It might be better to contact the county, because we only have the current version of a code, so I can’t really answer questions about data from 2008 unless it still remained in the code. I am sorry, but we do not keep a record of each time the code is changed.

 

I hope this has helped you.

 

Sincerely,

 

Linda Aubel

 

=================


On October 29, 2013, Ms. Platt wrote to Candyce Yee and Edward Sprecco at Supervisor Horn’s office, stating:


As promised, attached is a copy of the letter from Clay Westling.   I believe it to be good news for Mr. Burke's situation.  Mr. Westling also called Terry Burke and it seems all charges are being dropped. You might want to call Mr. Burke direct and talk to him about the situation just to make sure. 


The letter, I think, also helps reduce the threat to other property owners engaged in short or long-term rentals where the tenant does not make the house their permanent address (per section 1545d of the Code, the basis for Mr. Burke's citations).  


I have also attached the letter from the priest who was in Mr. Burke's house when the Code officer walked on to the property.  No noise.  No parking issues.  He was acting solely on authority generated by this 1545d section of the code related to the nonpermanent status of the guests in Mr. Burke's house.


But after reviewing all the correspondence sent over by Clay Westling's office related to the incident (as I had requested), I found it odd that the actual statute/Code was not referenced in any of the background research.  That includes Pam Elias' interpretation of the Code (a short email, no analysis or statute attached). 


So I returned to the San Diego County Code website and still could not find the 1545d section nor any pertinent wording.  I also contacted the people who maintain the online Code for help and they could find nothing either. 


Tell me, did you two ever actually find the section of the Code that was used to cite Terry Burke?  If memory serves, I believe the Fallbrook Code officer Tom Causey told Mr. Burke that there were half a dozen other cases in play.  Based on the letter from Clay Westling, perhaps you can make sure that proceedings against these people are also dropped?  Never mind the stress, I hate to think of the thousands of dollars they may have lost due to  application of 1545d!  


Perhaps you can double check and make sure that the Code is properly maintained (if the pertinent passages were never added) and/or that Code officers do not issue citations on nonexistent section of the Code!  


Since the only reference I could find relating to 1545d was a dcoument tied to a TEMPORARY Use Permit relating to Farmers' Markets, perhaps it was a TEMPORARY regulation and therefore was never supposed to be added to the Code at all and that is why it is not in there and we can't find it. 


All very mysterious. 


Thanks much for your help on this. 


Teresa Platt

760-468-2025


==============


As of January 4, 2014, no response.


Mr. Burke is currently acting on the understanding that his hearing is cancelled, as are his citations.  He has released his lawyer and is now renting Hacienda Burke, short and long term, to visitors to San Diego.


Teresa Platt

vrbo.com/385695

760-468-2025

==============


(*) A review of the video of the full December 10, 2008 meeting reveals no discussion whatsoever about rentals in San Diego County, short or long-term.  The bulk of the meeting discussed the Board of Supervisor’s attempts to encourage business in a bad economy. There is a brief reference to efforts made to a clean up in the County Code, basic housekeeping. The pertinent meeting documents include:

AN ORDINANCE AMENDING THE ZONING ORDINANCE TO ADD CERTIFIED FARMERS MARKET AS TEMPORARY USE AND MAKE OTHER MINOR REVISIONS TO VARIOUS SECTIONS; POD 08-011; (District: ALL)

Board Letter:
SIG POD 08-011_BOS Board Letter.doc

http://bosagenda.sdcounty.ca.gov/agendadocs/doc?id=09010e968006683b

Attachments:
Support_cob_bl_document_ag03.pdf  [NOTE: 110 pages, page 25 mentions 1545d] http://bosagenda.sdcounty.ca.gov/agendadocs/doc?id=09010e968006a512

Minute Order:
12-10-2008_Regular_mo_3.doc http://bosagenda.sdcounty.ca.gov/agendadocs/doc?id=09010e96800676c7

Also see http://www.co.san-diego.ca.us/pds/docs/081107/POD08011-LA.pdf, dated October 9, 2008, which includes the change to 1545, noting “POD 08-011, LOG NO. 08-00-005; Zoning Ordinance Amendments. The project proposes amendments to the County of San Diego Zoning Ordinance. The project is located throughout the entire unincorporated area of San Diego County. The proposed amendments to the Zoning Ordinance contain minor revisions, criteria to allow Certified Farmer’s Markets within appropriate locations ensuring compatibility with surrounding uses and properties, and a new Family Burial Plot accessory use to allow for family burials on parcels of more than 10 acres. These Zoning Ordinance Amendments will include a total of 25 revisions to the ordinance.” Page 2 states “Section 1545: would add the new Transient Habitation, Rental Units section that includes rental homes, townhomes and condos that are not the primary residence of the person renting it on a daily, weekly or monthly basis.”

END

San Diego County Obstructs Right to Contract