Short-term rental ordinance is out of bounds

In October, the Santa Fe County Commission passed a short-term rental ordinance that imposes significant burdens on property owners — including disclosure of short-term rental owners’ personal information, arbitrary and unreasonable restrictions on occupancy limits, ambiguous noise restrictions, and a one-year “moratorium” on permits for nonowner-occupied short-term rentals.

The ordinance’s “moratorium” has attracted widespread criticism, including from the Santa Fe Association of Realtors, which predicts it will negatively impact the value of existing real estate by adding uncertainties to the rights associated with property ownership. Under the restriction, anyone purchasing a property after Nov. 25 will be precluded from obtaining a permit for a nonowner-occupied short-term rental for at least one year — resulting in a complete elimination of the right to lease one’s property on a short-term basis during that period.

Other restrictions are just as bad — including limits on occupancy that bear no relationship to a home’s square footage, the amount of land it sits on, whether it is rural or urban, or whether it operates on septic or county sewage systems. Instead, the sole factor is the number of “bedrooms.” In other words, a three-bedroom, 4,000-square-foot home sitting on 10 acres, with its own septic system, could have a lower occupancy limit than a four-bedroom, 1,200-square-foot cottage.

Succinctly, the ordinance is governmental interference of the worst kind and is almost certainly unconstitutional. A particularly troubling issue is the fact county commissioners passed it without conducting a single study to determine whether short-term rentals pose any countywide issues. That being the case, the commission can’t possibly argue that the ordinance is narrowly tailored to address compelling governmental interests — which is the test that courts use to determine whether laws that infringe on fundamental property rights are constitutional. Instead, the ordinance appears to be an unconstitutional solution looking for a problem.

The county attorney highlighted this very issue during a recent commission meeting — explaining that similar short-term rental ordinances have been stricken down by appellate courts in Austin, Texas, and New Orleans.

One of the cases mentioned by the county attorney — Zaatari v. City of Austin — is particularly instructive. In striking down the Austin short-term ordinance, the court of appeals found the city had failed to demonstrate any citywide problems specific to shortterm rentals, despite having conducted several studies. In fact, the city’s studies seemed to suggest the opposite: In the four years preceding the ordinance, the city had issued no citations to licensed short-term rental owners or their guests for violating noise, trash or parking ordinances; and short-term rentals exhibited significantly fewer 311 and 911 calls than other single-family properties.

The County Commission’s activism is even worse because the county has

conducted no studies at all and, as Commissioner Anna Hansen admitted during one of the commission meetings, has no data. Instead, the county website cites the same vague generalizations about public welfare that were found to be insufficient in Zaatari v. City of Austin — including “the safety and welfare of shortterm renters … the peace and enjoyment of surrounding communities … water resources and the environment, and … [the] general welfare of the County.”

Perhaps worst of all, the County Commission has adopted a “one-size-fits-all” approach to the ordinance — applying the same rules and restrictions to short-term rentals in rural areas as those in dense residential areas. In other words, the ordinance is not “tailored” at all.

The commissioners themselves seem to understand the ordinance is fundamentally flawed, and several commissioners raised concerns during the hearings — including strong objections from Commissioner Henry Roybal, who voted against passage. Unfortunately, the three commissioners who voted the ordinance into effect (Hansen, Anna Hamilton and Hank Hughes) simply didn’t care. Commissioner Hughes shrugged off the constitutional issues — observing that the commission “can’t always be afraid of being taken to court.” Maybe so, but the commission should certainly be concerned about half-baked laws that throttle the constitutional rights of its constituents and negatively impact their property values.

What the commission should have done is instituted a thorough study of existing short-term rentals before restricting fundamental property rights — thereby allowing it to identify and surgically address legitimate problems instead of attacking imaginary issues. To those who argue such an approach would leave shortterm rentals unregulated, that is a red herring. Existing health and safety laws, fire codes, nuisance laws and noise ordinances can all be used to crack down on anyone who causes problems. And how many would that be? As Hansen acknowledged, the County Commission doesn’t know. It has “no data.”

Buck McKinney is a lawyer and musician with homes in Austin, Texas, and Santa Fe.