A city attorney memo declaring that short-term rentals are not allowed in San Diego has intensified a long-simmering debate that’s sure to boil over during a public hearing next week to consider new rules for home-sharing.

In a break with the legal opinions of her predecessors, City Attorney Mara Elliott concluded that San Diego’s municipal code doesn’t permit vacation rentals in any zone.

As recently as last November, then City Attorney Jan Goldsmith advised the City Council that the current code is too vague and would need to be amended if the city wanted to clarify that rentals listed on platforms such as Airbnb and VRBO are in fact prohibited.

Elliott’s opinion arrives just as the city’s planning department plans to release next week long-awaited draft proposals for regulating short-term rentals. A hearing has been scheduled for Friday before the council’s Smart Growth and Land Use Committee.


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“The city has a permissive zoning ordinance,” Elliott wrote. “This means that any use that is not listed in the city’s zoning ordinance is prohibited. Short-term vacation rentals are not specifically defined, expressly permitted or listed in any of the zone-use categories, including residential or commercial.”


Elliott noted in her memo that the city’s planning department is expected to present council members with multiple options for regulating the short-term rental of entire homes, as well as renting out rooms in a home where the owner isn’t present.

Left unanswered is the question of how strictly, if at all, the city will enforce the apparent prohibition of such rentals. There are thousands of these rentals in San Diego.

Long-time critics of vacation rentals quickly seized on Elliott’s memo as an important tool in going after problematic rentals.

San Diego’s elected leaders have been trying, without success, for two years to come up with regulations that would satisfy home-sharing hosts as well as homeowners who have complained that their neighborhoods have been overrun by vacationers and late-night partiers.


“We have tried for 10 years to get the city to follow its own laws as they’re clearly stated in the municipal code, but no one listened to us,” said Tom Coats, a Pacific Beach resident who helps lead the group Save San Diego Neighborhoods

“This gives individual homeowners and neighborhoods incredible leverage that they did not have before,” he added. “It gives us more legal standing to go into courts if we need to on an individual basis to sue people who will not cooperate. It gives us legal tools to go to real estate brokers and say you can’t represent a house as a vacation rental if they’re not legal.”

Airbnb, which has done battle with a number of cities that have tried to crack down on short-term rentals, offered a measured response Wednesday. It pointed out that San Diego’s zoning code hasn’t kept pace with the rapidly evolving home-sharing economy.

“The portion of the code referenced was not written with the sharing economy in mind and underscores why we need thoughtful, sensible short-term-rental regulations,” Airbnb spokeswoman Jasmine Mora said. “Thousands of San Diegans rely on home-sharing to make ends meet and supplement their incomes. We want to continue working with city leaders to enact clear and common-sense regulations that ensure accountability and maintain neighborhood quality.”


Elliott was asked to address the legality of vacation rentals in single-family residential zones by Councilwoman Barbara Bry, who was elected last November and represents affected communities like La Jolla. Vacation rentals were a part of her campaign platform.

Bry left open the door for reaching a compromise that would still permit some form of home-sharing.

“My position has been very clear,” Bry said Thursday. “I support renting out a room in your house if you’re onsite. I support renting out a granny flat if it’s attached to your primary residence, and I support renting out your primary residence when you go on vacation.

“What I am against is turning entire single-family homes into a into a mini Marriott.”


Last November, the City Council rejected a proposal by Bry’s predecessor, Councilwoman Sherri Lightner, that would have outlawed short-term vacation rentals in most of San Diego’s single-family neighborhoods.

The council at the time instructed city staff to draft a comprehensive ordinance that would regulate vacation rentals.

Councilman Chris Cate, who has consistently advocated for permitting short-term rentals citywide but with clearer rules for operation and escalating fines for violators, said he was puzzled as to how Elliott arrived at a conclusion so at odds with previous city attorneys.

“Is her office now going to be going out and enforcing her opinion on those taking part in this activity?” Cate asked. “Also, we’ve been collecting (transient occupancy tax) from all these short-term rentals — $8 million since July 1. So do we have to give it back now because they’re apparently illegal operators? We’re now back to where we were were two years ago, where we’re all confused.”


Elliott did not respond to requests to answer emailed questions about her legal opinion. In her memo, she said she recognizes the dilemma confronting the city.

“This office appreciates that the municipal code, as currently written, does not allow the reasonable compromise our communities seek; a compromise respectful of those who wish to enjoy the quiet enjoyment of their homes and those who wish to take advantage of the innovation economy.”

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lori.weisberg@sduniontribune.com

(619) 293-2251

Twitter: @loriweisberg