A couple residing in North Fork’s Cascadel Heights have retained an attorney in an attempt to get Madera County to enforce zoning ordinances with regards to two absentee homeowners in their neighborhood who are providing short-term vacation rentals via the popular online booking site Airbnb.
Fresno attorney Christopher A. Brown, of Dowling Aaron Inc, has sent a letter to the Madera County Planning Department’s Norman Allinder and County Counsel Regina A. Garza on behalf of Rick and Kris Hamilton, in an attempt to avoid legal action because two homeowners in the neighborhood are not adhering to single family zoning restrictions.
In a letter dated July 19, Brown has requested to meet with Allinder and Garza to discuss the granting of businesses licenses to the property owners and what he says are a number of zoning violations.
The Hamiltons, who have filed a complaint with the Madera County Grand Jury over the situation, have also gathered signatures from 18 neighbors supporting their efforts, and feel there has been a lack of response by county officials to their concerns as their neighborhood has been suffering with the zoning violation consequences for well over a year.
Brown said the nonconforming uses could negatively impact the Hamiltons and other neighbors the fundamental right to the quiet enjoyment of their property and could have a detrimental effect on property values in the area.
The Hamiltons feel that granting business licenses for short-term rentals in a residential area clearly violates residential zoning common sense and community norms and the very reason for zoning regulations.
“The Hamiltons have made good faith efforts to resolve these zoning issues without success for three months, and they now are expending considerable time and expenses seeking enforcement of existing zoning ordinances,” Brown said in his letter. “They continue to seek an expeditious and amicable resolution in the hope of of avoiding further action.”
The supervisors have met in closed session with county counsel to discuss the situation.
Kris Hamilton feels the zoning that overlays Cascadel Heights does not permit people to rent out their homes like a hotel. She, along with neighbors, has concerns over people they do not know in the neighborhood. Residents have no way to check on these unsupervised renters through the Megan's Law database, and they are noisy, have little regard for the potential of wildfires, are constantly smoking outside (USDA Fire Restriction 7/22/16), and using unknown amounts of water during drought conditions.
“Water trucks have made deliveries to one of those houses near us because the house does not have sufficient well capacity,” Kris said.
She said she finds it perplexing that one of the homeowners is in real estate and yet violates residential zoning, as brokers are typically very well versed in zoning and residential vs. commercial applications.
Former Madera County Supervisor Gary Gilbert lives in a residential subdivision between Oakhurst and North Fork, on Road 223, and sympathizes with the Hamiltons because there is a similar property owner in his subdivision who recently started doing the same thing.
Like the Hamiltons, Gilbert has filed a complaint with the board of supervisors and has asked the grand jury to investigate the situation.
“My property in Sierra Highlands is zoned residential, which allows me to have a single family dwelling,” Gilbert said. “It is not zoned for any commercial endeavor such as an auto body repair shop, or a hotel or motel. If I wanted to create a bed and breakfast at my home, I could request a special use permit from the county, the county would hold a public hearing so all my neighbors could have input. Then the county would look at my home and could require a number of things such as a fire sprinkler system, additional parking, and other improvements.”
Gilbert went on the explain that some people have converted their homes into short-term rentals in violation of residential zoning ordinances.
“What we are seeing are people who are absentee landlords renting out their residence for short-term rentals without being in the home like a bed and breakfast,” Gilbert said. “The owners are living out of the area and have a representative who will let the renters in and go inspect and clean the home for the next renters. Unlike B&Bs, the homeowners are not on premises to provide oversight while the renters are there.”
Gilbert said some homeowners are now going to the county for a business license and the procedures for paying TOT (Transient Occupancy Tax).
“The problem is the county should not have the authority to issue a business license to people to operate a business in an area that is zoned for single family residence,” Gilbert said. “The county is collecting a bed tax on what is an illegal activity.”
Having said that, Gilbert went on to say he agrees there are certain areas that the zoning should allow such activity, including Bass Lake if that is what the homeowners desire.
“Bass Lake is ideal for this because it is a heavy recreational area,” Gilbert said. “But it’s wrong to allow these operations in what are predominantly residential areas like Cascadel Heights and other residential subdivisions. The county needs to look at areas where this may be appropriate and areas where it is not appropriate.”
There are about 175 short-term (vacation) rental homes in the Bass Lake area zoned for single family residences.
Gilbert said he’s aware many communities throughout the state including Ventura, San Luis Obispo, San Diego and Napa are starting to crack down on short-term home rentals. In one case, zoning enforcement and the court found that “when you buy a home in a residential zoned neighborhood, you have a reasonable expectation that your neighbor’s house will also remain a single family residence. You also have to assume that the zoning administrator (or Board of Supervisors) will step in and prevent zoning violations.
Earlier this year, Realtor Magazine, the trade magazine of the National Association of Realtors, published a story by broker Barbara Nichols that said short-term rental websites raise risks for homeowners, their neighbors, and communities.
The article pointed out that there’s a good reason for zoning laws - they separate various types of buildings and building uses for the mutual benefit of everyone, so people don’t have to live next to a factory or a motel. Most cities also have laws related to the minimum rental period for a single family house or a multifamily dwelling. In Los Angeles, for example, a residential rental of less than 30 days - called a “short-term rental” - is currently prohibited.
The article went on to say internet companies such as Airbnb and VRBO pay no mind to such ordinances. They’ve swamped the market in California and elsewhere with thousands of listings, making the rules difficult or impossible to enforce. These websites claim that homeowners should have the right to do whatever they want with their property - but that’s a fallacy, Nichols wrote.
“When someone has purchased in a single family or multifamily zone, they have accepted the rules of that zoning. They do not have the right to turn their home into a motel, a restaurant, or a factory to the detriment of everyone else in that zone,” Nichols concluded.