City of South Lake Tahoe to exercise ‘discretion’ in enforcing new VHR occupancy limits
December 21, 2018
For months opponents of Measure T said that its passage would lead to legal action.
Measure T passed, and earlier this week a lawsuit was filed.
The complaint, filed Tuesday by a group of property and business owners calling themselves the South Lake Tahoe Property Owners Group, claims Measure T discriminates against property owners who are not "permanent residents" while allowing permanent residents to continue renting their properties as short-term rentals.
Measure T, a citizen-led initiative that narrowly passed in the recent general election, prohibits VHRs outside of the city's tourist core and commercially zoned areas. The lone caveat is that full-time residents have the ability to rent out their home up to 30 days per year.
Those limitations do not take effect until Dec. 31, 2021, however, the measure mandates new occupancy limits be implemented immediately for VHRs in residential areas.
The new requirement limits occupancy to two people per bedroom with a maximum of 12 people total.
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The lawsuit argues the occupancy limits do not take into account the size of the property and that they will be "disastrous for businesses, owners and property managers as many people made their holiday plans or winter skiing plans months in advance …"
"Literally thousands of people's holiday plans will be disrupted as will lives of the owners and managers trying to scramble to comply with the new law," the lawsuit contends.
City to exercise 'discretion' on occupancy limits
In an update Wednesday, Dec. 19, the city announced it is in the process of implementing Measure T, including the occupancy limits.
"City staff is in the process of reissuing all 1,344 existing VHR permits in residential areas to reflect the new maximum occupancy limits, and new permits will be mailed to VHR owners soon," read a press release from the city.
The city will continue to monitor for nuisances, such as noise and trash, but will take a gradual approach toward enforcing the new occupancy limits.
"In an effort to accommodate previous VHR reservations, city staff will initially use discretion in enforcing the new maximum occupancy limits if VHR guests are responsible visitors and do not violate other VHR regulations by causing neighborhood disturbances," states the press release. "City staff will continue this enforcement approach on a trial basis in the coming weeks and will adjust the enforcement strategy as needed in the future."
Aside from the occupancy limits, the lawsuit claims Measure T "conflicts with state and county law regarding land use regulation in the Lake Tahoe Region," while also interfering with vested rights.
Measure T "contains numerous vague and ambiguous terms" and "impermissibly intrudes into administrative matters rather than legislative issues," the lawsuit argues.
"Plaintiff contends that Measure T is unconstitutional and unenforceable based on violation of the due process, privacy, privileges and immunities, obligation of contracts, right to travel, vested rights, and equal protection provisions of the state and federal constitutions; that it is vague and ambiguous and violates state and county ordinances regulating land use in the Lake Tahoe basin and is beyond the voters' initiative power to adopt."
Legal direction uncertain
The lawsuit requests a preliminary and permanent injunction barring the enforcement of Measure T.
An initial hearing was slated to occur Wednesday before recently-seated Superior Court Judge Michael McLaughlin. However, McLaughlin decided to recuse himself from the case — an announcement made by the bailiff before a crowded courtroom of Measure T supporters and opponents.
The announcement did not specify why McLaughlin, who previously served as a local attorney practicing real estate and other aspects of law, recused himself. McLaughlin could not be reached for comment.
The case will be assigned to a different judge and rescheduled.
In the meantime, the city says it will "diligently enforce VHR regulations to promote peaceful neighborhoods in South Lake Tahoe." Wednesday's press release also stated the city respects Measure T.
That assurance appears to have relieved some concerns from T supporters.
"The city has stated it respects the ballot measure, and will diligently enforce the existing and new VHR regulations. The city's actions are a step in the right direction toward restoring the public's trust in government," Peggy Bourland, a member of the group that put T on the ballot, said in an email.
Whether that support will extend to the courtroom remains to be seen. City Council has yet to give direction to the city attorney on how to handle the lawsuit. Council met for closed session Tuesday, the day the suit was filed, but that was to discuss ongoing labor negotiation issues.
City Attorney Heather Stroud told the Tribune she anticipates council will call a special meeting in early January so it can provide direction.
The city found itself in an oddly similar situation two years ago, when a lawsuit was filed after the passage of another ballot measure, also called Measure T. That question sought to put any city support of the U.S. 50/ South Shore Community Revitalization Project, commonly referred to as the Loop Road project, before the voters.
The measure passed and a lawsuit claiming Measure T was unconstitutional was filed against the city. Supporters of the measure said the city did little to nothing in defending Measure T prior to a judge ruling it was unconstitutional.
Controversy in context
VHRs, and how best to regulate them, have been a topic of conversation for the last two decades in South Lake Tahoe. But in recent years the topic has become one of the most hotly contested issues.
Measure T was borne out of the failure to pass a revised ordinance that T supporters said represented a compromise on the VHR issue.
It was crafted by former city councilors Austin Sass and Wendy David, but it died when David announced she ultimately would not support the revised ordinance.
As residents started collecting signatures for Measure T, a group called the Sustainable Community Alliance — led by two local Realtors — tried to get a competing initiative on the ballot. It would have locked in a cap on VHRs while tightening some regulatory aspects, such as noise restrictions. The effort failed to collect enough valid signatures to qualify for the ballot.
The debate continued to intensify once Measure T made it on the ballot, with supporters saying the measure was needed to save South Lake Tahoe's neighborhoods, which have become hosts for de facto hotels. Opponents argued the measure would be catastrophic for the local economy.
During election season hundreds of thousands of dollars poured into the region urging a "no" vote on the question. The National Association of Realtors and the travel company Expedia were among the large outside donors backing the "no" effort.
When all was said and done Measure T passed by 58 votes — 3,517 (50.42 percent) to 3,459 (49.58 percent). Nobody requested a recount.
Backers argued passage of the measure, despite the large amount of outside money working against it, was a clear indication that voters want VHRs out of residential neighborhoods.
Opponents disputed any claim of a "mandate" and vowed to continue the discussion on short-term rentals.
In a statement, Mark Salmon with the Sustainable Community Alliance said the group is not responsible for the lawsuit, it supports it.
"The SCA acknowledges and supports the fact that a group has filed a lawsuit against the city and Measure T," said Salmon, a local Realtor. "The suit is not surprising considering how close the vote was and the fact that locals that reside in the county could not vote on this matter nor could the vast majority of the 1,400 VHR owners. Our community is much broader than the 3,500 supporters of Measure T and those voices now have a chance to be heard as well."
As for the group that filed the lawsuit, Sharon Kerrigan, executive vice president of the South Tahoe Association of Realtors, said the association's board did not vote to participate in the legal challenge. However, a few individual Realtor members are involved.
In her email, Bourland characterized the lawsuit as an attempt to thwart the will of voters.
"The people that support vacation rentals in neighborhoods had plenty of opportunities to make their case to the residents and voters," she said. "They tried to qualify their own initiative, they joined forces with a nationally funded campaign against Measure T and now are trying to get a judge to stop the new rules from going into effect all without success."