For over a dozen years now, the issue of short–term rentals and the disruption caused in single family neighborhoods has been a hotly debated subject on Marco Island, but with no resolution to the issue. The areas in question are referred to in the City’s Zoning and Comprehensive Plan as the RSF (Residential Single Family) zones.
In 2009, City Attorney Alan Gabriel of the law firm of Weiss/Serota from Ft. Lauderdale, advised City Council that they had a problem because use of single-family homes for short term rentals in the RSF zone was “neither a permitted use in the RSF zone or in compliance with our Comprehensive Plan.” During that meeting of Council, Gabriel cautioned Council that they needed to address the issue.
Gabriel’s advice to the Council regarding the violation of the City’s Zoning Ordinance and Land Development Code still has gone nowhere. Former Fire Chief Michael Murphy also warned Councilors of potential City liability for ignoring violation of the codes as pointed out by Gabriel.
Fast forward to 2020, when then Council Chairman Erik Brechnitz commented, “Councilors’ email boxes have exploded regarding the issue.” The concerns have continued to grow since that statement was made, and the complaints have continued to grow.
Recently, resident David Romano, an outspoken critic of the lack of progress on the issues concerning abuses within single family neighborhoods, has filed an official Code Violation complaint with the City regarding this issue and the City’s lack of enforcement of its own Comprehensive Plan. He has been informed that his complaint has been forwarded to City Attorney Gabriel for review.
Gabriel’s firm, Weiss/Serota, was the city’s legal representative when Gabriel gave his ruling to Council in 2009. His firm was replaced in June of 2011 with Burt Saunders of the Naples firm Gray-Robinson. In March 2015, Gabriel’s firm reassumed the role of the City’s legal representation.
According to the Marco Island Comprehensive Plan, the permitted uses in RSF districts are single family residences, family care facilities (subject to restrictions of the Land Development Code), parks and open spaces. Additional “accessory” and “conditional” uses allow child-care centers, churches, schools and recreational facilities, among others, but these “accessory” and “conditional” uses require a review and an approval process. The primary use allowed in the RSF Zone is single family home residences.
Vacation rentals are described by the State of Florida as any rental done for less than 6 months. This requires an owner to charge sales tax. Because of the requirement to collect sales tax, the owners are, in effect, running a business in a Residential Single-Family Neighborhood, which is not listed as an “Allowable or Conditional Use” under the city’s zoning.
In 2011, the Florida State Legislature passed State Statute 509.032(7)(b), which prohibited any jurisdiction from passing subsequent legislation after that date which would place any additional “burdens or restrictions” regarding these activities. Some on Council have referred to this as the reason they cannot act on this issue, while others have complained the State was overstepping and infringing on “home-rule.”
It is important to note that short-term rentals such as hotels, timeshares and condominiums are allowed in the RT Zone (Residential Tourist Zone) within the City and are provided for.
2019 Volusia Case Upholds City’s Zoning
In 2018-19, similar issues were litigated in the Seventh Judicial Circuit Court in and for Volusia County, Florida. Residents complaining of similar problems within their single-family home neighborhoods believed short term rentals were disrupting their “quality of life.” When Daytona subsequently began enforcing provisions of their Comprehensive Plan and Zoning Codes regarding short-term rentals, a group of investment property owners challenged the City of Daytona Beach’s zoning, which did not allow for the similar practice of short-term vacation rentals in single family residential neighborhoods. Those specific provisions existed prior to Daytona Beach updating its Comprehensive Plan in 2015 and were noted in that update.
In regard to the issue of the 2011 State Statute 509.032(7)(b), the Seventh Judicial Circuit Court found the following. “However, the Statute also makes it clear that any local law, ordinance or regulation adopted on or before June 1, 2011, was not pre-empted by the state, and remained in full force and effect.”
Some, including Marco City Councilors, have sought to find refuge behind the 2011 legislation adopted by the State of Florida. However, the judge’s ruling in this Seventh District case may have demonstrated the lack of substance to that argument. During the last Marco Island election, several of those elected to City Council referred to that 2011 Florida State Statute as the reason they believed they were limited in being able to assist those impacted by problematic short-term rentals.
You may go to the Coastal Breeze website and click on the link to read the Summary Court Judgment regarding the City of Daytona Beach decision by the Seventh Judicial Circuit Court and its findings in their entirety.
The City of Marco Island presently is in the process of updating its Comprehensive Plan which, when completed, will be forwarded to the State of Florida for its approval. Council also is in the process of appointing members to the City’s advisory boards, including the important Marco Island Planning Board, which deals with issues concerning zoning.