- July 29, 2019
A Volusia County judge ruled on Dec. 12 that Volusia County's code of ordinances does indeed prohibit short-term rentals of less than 30 days in residential zones — but the property owners part of the Vacation Rental Home Alliance of Volusia are not ready to give up, and will be filing an appeal.
The alliance — along with Steven Murray, another short-term rental owner — filed a lawsuit against the county in June 2021, a month after the Volusia County Council voted 5-2 against amending its short-term rental ordinance following about three hours of public comments, including video statements from concerned residents. The council members cited not wanting to negatively impact residential neighborhoods as well as unease about losing the ability to regulate short-term rentals; the county argued that changing its 2004 ordinance would mean losing its grandfather clause, since a 2011 law preempts local governments from prohibiting short-term rentals or regulating the duration or frequency of stays.
The council's no vote also ended the creation of a short-term rental advisory committee that had been in discussion.
Richard Feller, president of the VRHA, said Judge Kathryn D. Weston's ruling did not come as a surprise. The alliance felt Weston was "basically a representative of the county."
"We anticipated this," Feller said. "We didn't feel like we were actually going to be able to get an unbiased ruling in the county itself, especially since the county is the defendant, but it was a necessary step for us to take so that we could proceed forward on to the appeal process."
In VRHA's petition, the group of short-term rental owners disputed the county's position that it may prohibit vacation rentals using its ordinance for hotels and motels, deeming vacation rentals the same kind of property, and that they therefore cannot be operated in residential zoning districts.
Because the county's ordinance doesn't specifically mention vacation rentals, which are defined in state statute as "any unit or group of units in a condominium or cooperative or any individually or collectively owned single-family, two-family, three-family or four-family house or dwelling unit that is rented to guests more than three times in a calendar year for periods of less than 30 days or one calendar month ... or which is advertised or held out to the public as a place regularly rented to guests," VRHA argued that any restriction of vacation rentals is preempted by state statute.
Volusia County issued a press release on Tuesday, Dec. 13, regarding Weston's ruling. The county quoted a portion of the ruling, which states, "While the county’s definition of 'hotel/motel' and the state’s definition of 'vacation rental' are not identical, their primary characteristics overlap. Both phrases apply to buildings being rented to the public to be used as transient lodging for periods of less than a month.”
"The ruling subsequently states, 'Plaintiffs rely on, but misinterpret, a nonbinding, informal opinion of the Attorney General to argue that a zoning ordinance must use the phrase "vacation rental" or "resort dwelling" to have grandfathered protection,'" according to the press release.
Many municipalities have dealt with the issue of vacation rentals in different ways, Feller said. But, he felt that the state understood the importance of vacation rentals when it passed the law in 2011.
"I feel like there's a number of loopholes that this municipality is trying to use to maintain preemption," he said. "And preemption rules are pretty cut and dry from the state level, so there's not a lot to argue there, but yet counties in municipalities try and do this."
He countered the judge's statement that VRA relied on the Attorney General's opinion that a zoning ordinance must specifically vacation rentals, saying they are relying instead on their belief the ruling the judge used in their case was "bad law," and one that was heard before the 2011 state statute.
Residents have voiced opposition to short-term rentals in Volusia County, particularly in Ormond-by-the-Sea and Bethune Beach. In Ormond Beach, short-term rentals are prohibited in residential areas; they're only allowed in properties east of State Road A1A that do not have a residential zoning.
During the Citizens for Ormond Beach candidate forum in October, District 4 County Councilman-elect Troy Kent said he and his wife "live the nightmare of three hotels operating around us," referencing issues with short-term rentals in his neighborhood.
Feller argues that local vacation home rental owners such as him and the members of VRHA, who have lived the properties and are selective about who can stay in their rentals, also want the best for their neighborhoods — while still protecting their property rights.
"I think we're prepared to take this as far as it needs to go," Feller said. "But I will say that we're very, very confident in the appeal process. I don't think we would be moving forward with the appeal if we didn't feel so confident in our case."