I hear this argument a lot and it has to do with something called a “permissive zoning code”. Most cities have a permissive zoning code and that’s just a fancy way of saying that if something isn’t explicitly permitted in your city’s zoning laws that it’s illegal. While this argument may work for some land uses very often this argument doesn’t hold up to scrutiny when it comes to vacation rentals. Let’s take the CIty of San Diego for example where this specific issue has been hotly debated.
It’s true that the zoning laws in San Diego don’t specifically address vacation rentals or short term rentals. I should note that in San Diego the zoning laws do say that bard residential uses that “provide lodging… primarily to visitors and tourists.” which may seem pretty straightforward on its face, however nowhere does that law define what a visitor is (If I live in San Diego and stay at a vacation rental at the beach, am I a visitor? After all, I do live in this city. So how far does someone have to travel to be a visitor? What if I rent the AirBnb next door while my house is fumigated, am I a visitor then? Again, the law doesn’t say) Then there’s that word “primarily” which is also not defined in the law, so let’s just say we can agree that “primarily” means 51% of the time; over what time period? A week? A month? A year? As long as I’ve owned the property? As long as the property was built? If I’ve owned the property for 10 years and rented it long term for 10 years, does that mean I can use it as a vacation rental for the next 10 years? Again, the law is not specific.
What the law does say, and the crux of our argument is that there are residential zones, commercial zones, industrial zones, etc. What the law in San Diego doesn’t specify, and what most city codes don’t specify is the basis on which a unit can be occupied; meaning that it doesn’t specify who can live in a residential zone or how. So if we are to believe that because vacation or short term rentals aren’t legal because they aren’t specifically permitted then in San Diego, as with many cities, then renting long term is illegal too because that isn’t specifically permitted either. Also generally not specifically permitted in city codes is owner occupancy, which would be illegal under most city ordinances if they banned short term rentals for not being specifically permitted.
So the next time someone starts talking about “permissive zoning” and vacation rentals being against the law, do a little reading and you’ll often find that they’re just plain wrong.