Agenda - Planning Commission - 04/04/2019

Home

February 25, 2019 I Volume 13 I Issue 4 Zoning Bulletin Ultimately, the trial court granted Airbnb's motion for temporary injunction. It concluded that "Miami 21 does not prohibit vacation rentals and the City was therefore preempted under section 509.032(7)(b), Florida Statutes (2016) from enforcing its Zoning Interpretation and pro- nouncing any ban on short-term vacation rentals." Among other things, the temporary injunction issued by the court enjoined the City from "enforcing any ban on or from instituting or enforcing its vacation rental ban in the City pending a final hearing . . " The City appealed. DECISION: Judgment of Circuit Court reversed, and matter remanded. The District Court of Appeal of Florida, Third District, held that the trial court's injunction against the City's "vacation rental ban" was overbroad. In so holding, the court explained that in order to obtain Contributors Corey 'E. Burnham -Howard For authorization to photocopy, please contact the West's Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax (978) 646- 8600 or West's Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the specific; material involved, the number of copies you wish to distribute and the purpose or format of the use. This publicationwas created to provide you with accurate and authoritative information concerning the subject matter covered; however, thispublication was not necessarily pre- pared by persons licensed to practice law, in a particular jurisdiction. The publisher, is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney.,If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. Zoning Bulletin is published and; copyrighted by Thomson Reuters, 610 Opperman Drive, P.O. Box 64526, St. Paul, MN 55164-0526. For subscription information: call (800) 229-2084, or write to West, Credit Order Processing, 620 Opperman Drive, PO Box 64833, St. Paul, MN 55164-9753. POSTMASTER: Send address changes to Zoning Bulletin, 610 Opperman Drive, P.O. Box 64526, St. Paul, MN 55164-0526. THOMSON REUTERS® 610 Opperman Drive P.O. Box 64526 St. Paul, MN 55164-0526 1-800-229-2084 email: west.customerservice@thomsonreuters.com ISSN 0514-7905 ©2019 Thomson Reuters All Rights Reserved QuinlanTM is a Thomson Reuters brand a temporary injunction, Airbnb had to demonstrate: "(1) the likelihood of irreparable harm if the temporary injunc- tion [was] not entered; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) entry of the temporary injunction [would] serve the public interest." Moreover, the court emphasized that "[i]njunctions must be specifically tailored to each case . . . . In other words, injunctions `should never be broader than is necessary to secure to the injured party relief warranted by the circumstances involved in the particular case.' " Here, the court concluded that Airbnb had failed to show that they had a substantial likelihood of success to sustain such a broad injunction as that issued by the trial court. The court found that the injunction here failed to recognize that under certain circumstances Miami 21 could prohibit short-term or vacation rentals in the T3, and was not preempted by Florida Statute § 509.032(7)(b). Again, Miami 21 (adopted in 2016 and identical to the code in effect in 2009) limited the T3 zoning district to "residential" use, defined as "land use functions predomi- nantly of permanent housing. And, Florida Statute § 509.032(7)(b), provides that "[a] local law, ordinance, or regulation [enacted after June 1, 2011 ] may not prohibit vacation rentals or regulate the duration or frequency of rental of vacation rentals." The court concluded that "Miami 21 is not preempted by State law because it places land -use restrictions on all properties located in the T3 zone, which include properties used as short-term or vacation rentals." The court found that Miami 21 prohibited short-term and vacation rentals in T3 zones that convert a property's use to something other than "predominantly or permanent housing." Thus, a prop- erty used solely for short-term or vacation rentals was prohibited in the T3 zone. However, a property used predominantly for permanent housing, and used only incidentally for a short-term or vacation rental may not violate Miami 21, found the court. Accordingly, the court concluded that to the extent the City interpreted Miami 21 to ban "all short-teiiu rentals," such an interpretation was "overbroad because a short-term rental may not always alter a property's use as `predominantly of permanent housing.' " In any event, the court concluded that the trial court here had "failed to recognize that Miami 21 [was] not preempted and prohibit[ed] certain short-term rentals that compromise the residential characteristic of T3 properties." In other words, the court concluded that because the trial court's injunction banned the City from prohibiting any vacation or short-term rentals in the T3 zone, it was overbroad. Case Note: There was also an issue of whether Airbnb's rentals constituted "lodging" under Miaini 21. The appellate court determined that resolution of that issue was not necessary to its holding here with . regard to the injunction. The court did note, however, that "[d]ue to the varied nature of the Airbnb rentals . . . some may qualify as lodging [as defined under Miami 21] and some may not." 2 ©2019 Thomson Reuters