No Rules for STRs But Zoning Says They're Illegal. Now What?

Question

I've been interested in using my home as a short-term rental (STR) property so last week, after watching this video from James Carlson and Erin Spradlin, I called the Department of Planning and Zoning and spoke to the Director. I asked her if they had any specific ordinances regarding STRs, like those listed on Airbnb and VRBO, and she said no. She then immediately added, "but it is illegal." She said that she knows that there are lots of homes listed on those sites but she doesn't check them. However, she said that when they get complaints from neighbors, she sends code enforcement out to issue a cease and desist order. When I asked her to explain why/how it was illegal given the fact that there aren't any specific ordinances regarding STRs, she said, "They are illegal because there are not any rules that say you can have them." I was very surprised by this statement but maybe I should not have been because James and Erin did mention this possibility in the video so that's why I'm asking you experts for advice on what I can do next. I went on to ask if the city council has plans to discuss STRs in the future and if she knows if they will develop a more favorable attitude toward them. The answer was no to both questions.

Here are my questions:

1. Who is the best person to ask to get further clarification on what is legal/illegal regarding STRs in my city? A city councilperson? A local lawyer? A judge? Someone else?

2. Any other suggestions on the next step(s) I should take?

3. Is it reasonable to assume that a cease and desist order is related to noise or some sort of public disturbance rather than a violation of a code that does not exist?

4. Ultimately, I'm interested in renting out my home to people who need housing for longer than 30 days but less than a year. What resources should I be studying that can help me with this, if I do find that it would be legal to do so.

Thank you for any help you can give. I really appreciate it!

Here are my questions:

1.  Who is the best person to ask to get further clarification on what is legal/illegal regarding STRs in my city?  A city councilperson?  A local lawyer?  A judge?  Someone else?

2.  Any other suggestions on the next step(s) I should take?

3.  Is it reasonable to assume that a cease and desist order is related to noise or some sort of public disturbance rather than a violation of a code that does not exist?

4.  Ultimately, I'm interested in renting out my home to people who need housing for longer than 30 days but less than a year.  What resources should I be studying that can help me with this, if I do find that it would be legal to do so.

Thank you for any help you can give.  I really appreciate it!

Nathan Gesner · Answer

I think there's a misunderstanding between zoning and laws. zoning typically tells you what you are allowed to do within a particular zone. It does not list all the things you cannot do within the zone. and when zoning says you can or cannot do something within a particular zone, that is essentially the law.

Your property is not zoned for short-term rentals, therefore you can't convert it to one.

Kenneth Garrett · Answer

@Alex Brown

Zoning ordinances are quite quirky.  The zoning district will tell you what’s allowed. It probably doesn’t describe the use on a short term basis.  You would need to look at definitions to define stays less than thirty days.  Typically that falls under a hotel/motel.  Then go back to the uses your SFH district; R-1, R-2, etc it will state SFH not hotels/motels. It’s the backwards way of enforcing it. The city finds out by neighbors complaining about people coming and going with suitcases all hours of the day and night.

Jim Hudelson · Answer

It's a changing landscape.  By owner Short Term Rentals wasn't even a common term/expression until the last 10 years or so.  They have existed for much longer than that but weren't prevalent enough to warrant attention from the local government.  For example, I lived in the Aspen Colorado area in the 80's.  VRBO wasn't in play yet.  People would find renters via local advertising to rent Christmas Week and make enough money to pay for a vacation to Hawaii and a month or two of mortgage payments.  Sweet deal.

Property management companies have been in this business for a long time.  They were generally viewed by local governments as a positive.  They provide(d) a contact point for many rental homes, local jobs, brought in tourist dollars, etc.  They are part of the business community and have a voice.

In todays world, STR's By Owner have become a threat to local populations and as a result we are seeing all of the new and revised ordinances that restrict or ban the practice.  In resort areas it is expected and allowed (usually).  In urban areas it tends to be viewed as a negative.

Applied to your situation I would agree with what others have said.  It is likely that by owner STR's are a blip on the radar of the city council.  It is one of those things they know that they need to get to but haven't because it isn't the hot potato.  When it becomes the hot potato, expect fairly quick and decisive action.  How they respond will depend on who they are and what they believe (and who is pulling their strings).  You can be proactive by getting involved locally.  There are many positives to having STR's.  It's important that this message is part of what the city council is hearing.  There are also plenty of negatives and these will be voiced loud and clear.

I would expect that if you received a 'cease and desist order' from the town that you could successfully fight it off by lawyering up.  As you know, the cost for doing this would essentially bankrupt your business plan.  So, if you consult an attorney and they say that this could easily be fought, they of course will have dollar signs in their eyes.  They would love a battle like this.

If it's me, I'd go ahead and rent my place with the expectation that the local government could shut me down.  Find responsible renters.  We have been renting our house in a city in Colorado for years and it has gone very well.  We also lean towards one month minimums and have been pretty successful with this strategy.

We have learned a few things about vetting potential renters.  One - if in their initial inquiry they don't say something good about our place, it's a red flag.  In other words, have they been researching and looked through our information and made a conscious decision that our place looks like a good fit?  Two - if in the initial inquiry they are focused on the cost it never ends good.  Our house is mid-priced for the market.  It isn't cheap and we don't want cheap renters.  Third - last minute renters are usually trouble.  Not always, but we are Leary of them.  Find out their story and make a read on the authenticity of it.  I define last minute as within 2-3 weeks of arrival.  People who plan ahead are generally more responsible and reasonable to deal with.

Good luck!

James Carlson · Answer

@Alex Brown

Ahhh ... a little ego stroke on a Tuesday. Great way to start the week! Thanks for referencing our video. Obviously, we work in Denver and Colorado Springs, so your city's situation may be different, but here are some general thoughts:

• The city worker could very well be correct. City codes are set up in two ways: 1. Anything not specifically outlawed in the code is therefore allowed; or 2. Anything not specifically allowed in code is therefore NOT allowed. Clear as mud? Sounds like your city is the latter.
• In my experience, most lawyers aren't familiar with the minutiae of city short-term rental laws. I'd email your city council person and ask for clarification. Ask them if they can clarify with the city attorney's office. Or you might just try the city attorney's office and see if they'll issue you an opinion.
• A cease and desist order could come for any reason but is more likely going to be a noise or parking issue. If you keep the number of guests to a minimum and try to screen against potential party planners, you have a better shot at not getting caught. I say better because it all depends on your neighbors. Are they nosy? Are they the type to think Airbnb is the bane of our modern existence? Young or old? 
• What to do? GET OUT IN FRONT OF THE ISSUE! Start a local Short Term Rental Alliance. Get it on Facebook. Reach out to anyone and everyone else you can who is doing STRs/Airbnbs. Gather data. (For instance, does the city have complaint data broken out by STR guests? Probably not, but ask. And use AirDNA to see how many STRs are in the city. You want to have the data when the other side starts spouting scare tactics like "STRs are overrunning the city!" Well, you'll have the data to say, actually STRs account for less than 0.5% of the housing stock, or whatever it is. And start getting in front of city council members, expressing your opinion that STRs are not the devil.
• 
• Good luck!
• 
•

Ken Latchers · Answer

And keep in mind even if they are allowed, there can be additional requirements such as parking and setbacks and limitations.

And if you got clarification and think you're fine, anytime in the future they may make it illegal and you might be stopped anyway.

Alex Brown · Answer

Thank you all very much for your feedback!  It was very helpful.  I will take a look a the resources you provided and get clarity from a lawyer.

Neil Henderson · Answer

@Alex Brown Check to see if there is a Short Term Rental Owners Association in your area. The Short Term Rental Advocacy Center would also be a place to look.

Nik Moushon · Answer

A government body saying its illegal because we didnt spell out that you could (let alone that it isnt spelled out that you cant) is a great way for that government body to get sued. Go talk to a lawyer real quick and pose that question. I'm sure they will laugh at it. Thats not how laws in the country work.

I'm sure a law is in the works but they are just playing a dangerous game trying to enforce it before they have it written down and passed.

Michael Baum · Answer

Well @Alex Brown, that is interesting. I would call one of your city council people and discuss.

It isn't illegal unless it is spelled out in a regulation or law. I will say that your poking might force them into action and probably not in a positive way.

I am not sure what else you can do.

No Rules for STRs But Zoning Says They're Illegal. Now What?

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