The one honest thing Councilmember Jennifer Campbell said was “I’m not a lawyer.”

Author: John Thickstun Comment: What follows are a few words about what the law actually is in California, as it relates to a municipality, like San Diego, failing to enforce.

This, in addition to the fact that cities throughout California, from Santa Barbara to Santa Monica and Hermosa Beach to Coronado - which collected taxes (TOT) from illegal STR for years, have only relatively recently started actively enforcing their municipal code ordinances which also prohibit STR.

The following is an excerpt from a California Court of Appeals ruling issued on May 20, 2015. In this matter, the City of Los Angeles had failed to enforce the residential zoning restriction for over 25 years on a parcel that had been used as a parking lot. The property owner’s estoppel argument failed and the Court of Appeals ruled that, despite the passage of decades without enforcement, the City – charged with protecting the interest of the public – was not estopped and had the right to enforce the residential zoning ordinance.

“These protectable interests further manifest themselves in the preservation of land values, in esthetic considerations and in the desire to increase safety by lowering traffic volume. TO HOLD THAT THE CITY CAN BE ESTOPPED WOULD NOT PUNISH THE CITY BUT IT WOULD ASSUREDLY INJURE THE AREA RESIDENTS, WHO IN NO WAY CAN BE HELD RESPONSIBLE FOR THE CITY’S MISTAKE. Thus, permitting the violation to continue gives no consideration to the interest of the public in the area nor to the strong public policy in favor of eliminating nonconforming uses and against expansion of such uses.” Schafer v City of Los Angeles, 237 Cal.App.4th 1250 (2015), p.665 (emphasis added)

Below is an excerpt from a case titled Feduniak v California Coastal Commission, 148 Cal App 4th 1346. This case is also cited by the Court in Schafer v City of Los Angeles (supra).

“As the court in Caminetti v. State Mut. Life Ins. Co., supra, 52 Cal.App.2d 321, explained, ‘To govern themselves, the people act through their instrumentality which we call the State of California. The State of California functions through persons who are for the time being its officers. The failure of any of these persons to enforce any law may never estop the people to enforce that law either then or at any future time. It would be as logical to argue that the people may not proceed to convict a defendant of burglary because the sheriff perhaps saw him and failed to stop him or arrest him for another burglary committed the night before. [Citations.]’” (Id. at p. 326.).

The length of time a City, either wittingly or unwittingly, fails to enforce a zoning ordinance will not give rise to a successful “estoppel” argument.

Over the course of the last four years, I and other SSDN board members have spoken to numerous land use lawyers and California City Attorneys who, without exception, have said the same thing. The “estoppel argument” or "grandfathering" assertion is legally wrong - in fact “absurd”.

That the City would be prevented from enforcing its ordinances prohibiting STVR in residential zones, because the City’s elected officials failed and refused to enforce the law - simply put, does not change the law.

It’s my belief that this effort to force a new STR ordinance now, is to provide cover for Mayor Faulconer, City Attorney Elliott and Todd Gloria, who have asserted/argued falsely, for literally years, that nothing could be done without the Council passing a new ordinance.

They all knew years ago this was a bald faced lie. Faulconer and Elliott knew, at least since Elliott’s election that STR were/are prohibited -and that the SDMC has a specific enforcement mechanism/process for prosecuting prohibited uses. Why? We’re not certain. But both money and reputation, I believe play a role. Here’s a clue. Jan Goldsmith lobbied the City on behalf of Airbnb after he left office. Permalink: Manage your subscriptions:

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