Short-term vacation rental protections afforded by county ordinance could go away if Town of Siesta Key becomes reality

Worries about state law surface during recent meeting of leaders of island organizations

If the Town of Siesta Key becomes a reality, residents in neighborhoods with single-family homes likely would lose all of the protections they enjoy from Sarasota County’s short-term vacation rental ordinance, The Sarasota News Leader has learned.

As the News Leader has reported over the years, members of the nonprofit Siesta Key Association (SKA) long have complained about violations of the county ordinance, which allows homes in single-family residential districts to be rented out no more often than once every 30 days. Loud parties at night, multitudes of vehicles parked in yards and on the streets, and garbage piled up for days before the weekly Waste Management collections — drawing vermin — have been among the top concerns.

During a Feb. 28 telephone interview with the News Leader, SKA President Catherine Luckner said she did not know of the potential problem for the Town of Siesta Key until a recent meeting of the Presidents Council on Siesta Key.

The Presidents Council sessions bring together leaders of the SKA, the Siesta Key Chamber of Commerce and the Siesta Key Condominium Council for discussions of topics that involve all of them on the barrier island. A representative of the chamber, she said, noted the state statute that governs vacation rentals.

Section 509.032(7)(b) of Florida law says, “A local law, ordinance, or regulation may not prohibit vacation rentals or regulate the duration or frequency of rental of vacation rentals. This paragraph does not apply to any local law, ordinance, or regulation adopted on or before June 1, 2011.”

A 2019 Florida League of Cities Legislative Issue Briefs that the News Leaderreviewed included this comment: “Cities without short-term rental regulations in place prior to June 1, 2011, have had their zoning authority stripped and are now seeing these rentals completely overtaking residential neighborhoods. Long-time residents are moving out as a result, and the residential character of traditional neighborhoods is slowly being destroyed.”

The News Leader did send an inquiry to the League this week, asking whether its attorney could provide any information relative to the Siesta Key incorporation situation.

In a March 1 email, Jenna Tala, chief of strategy and external affairs, responded, “As a general practice, the League does not provide comment on individual local issues. Sorry we couldn’t be more helpful.”

Luckner told the News Leader her initial response to the news at the Presidents Council meeting was “Really? That would be terrible!”

She added that she recalled long-ago discussions with former County Commissioner Nora Patterson — a Siesta resident — who had talked of the need to ensure that the county’s short-term vacation rental ordinance was never amended in a manner that could nullify it. Patterson had emphasized that when the state passed its pre-emption law, the county measure was among the local government measures that were “grandfathered in.”

Matt Osterhoudt, director of the county’s Planning and Development Services Department, under which the Code Enforcement Division operates, also has addressed SKA members in recent years, stressing that county staff has to be very careful in making any change to the ordinance, so as not to see state leaders declaring it null and void.

The county regulations also supersede those in deed-restricted communities, the News Leader learned this week.

in response to an inquiry, Planning and Development Services staff explained that Article 3, Section 124-18(b) of the county’s land-use and zoning regulations states, “This [Unified Development Code] is independent of private deed restrictions and other covenants and shall apply whether or not they are more restrictive than such restrictions.”

Media Relations Officer Brianne Lorenz added as a side note that, if a homeowners association “has restrictions that are stricter than the county restrictions,” the determination of which rules prevail would be “a civil matter between the two parties.”

‘That would be really bad’

The News Leader checked, too, with Brian Loughrey, the county’s chief deputy property appraiser, to learn how many Siesta homeowners could be affected by the incorporation of the Town of Siesta Key.

Loughrey reported on Feb. 28 that the 2022 tax roll showed 2,381 single-family homes in unincorporated Siesta Key. The number of condominiums on the 2022 tax roll was 6,793, he added.

“The island’s condominium complexes would still be able to enforce any restrictions they impose [on vacation rentals],” Sarasota attorney Dan Lobeck, of the firm Lobeck & Hanson, told the News Leader.

Lobeck has decades of experience in condominium law.

If the Town of Siesta Key can be established following a process already begun in the Florida Legislature, but no protection can continue for neighborhoods with single-family homes, “That would be really bad,” Luckner of the Siesta Key Association told the News Leader.

The issue has “never been a point of conversation at all,” she continued, when leaders of the nonprofit group advocating for incorporation over the past two years — Save Siesta Key — have provided presentations to island residents.

Moreover, Luckner said, “We definitely wouldn’t have wanted to do all this work” to incorporate the part of the Key within the county’s jurisdiction only to have to contend with the loss of the county’s short-term rentals protection. “That would not be what people are hoping for at all.”

In fact, Luckner pointed out, since county Code Enforcement Officer Rick Russ was assigned to the Key in the fall of 2021, “We’re just now getting more traction on the Code Enforcement [pursuit of violations].”

During the monthly SKA meetings, Russ routinely reports on his efforts to crack down on illegal rentals, citing the assistance of SKA members, who have helped him document violations. He has explained that he needs to be able to prove to a Code Enforcement Special Magistrate that an illegal rental has occurred, so the Special Magistrate will order the offending property owner to remedy the situation. Fines and penalties can mount if the violator does not take corrective action, county regulations point out.

During a separate telephone interview with the News Leader, new County Commissioner Mark Smith, who also lives on Siesta, said he was unaware of the short-term rentals issue related to incorporation until a recent, routine meeting with County Administrator Jonathan Lewis.

Smith said Lewis had told him that Lewis had conveyed the same information to representatives of Save Siesta Key during a meeting with them.

County Media Relations Officer Lorenz verified for the News Leader, thanks to the help of Lewis’ assistant, that Lewis met with Save Siesta Key leaders on three occasions: July 15, 2021, via the Microsoft Teams video conference software; and in person on July 27, 2021 and on Aug. 23, 2022.

Lewis was out of the office much of this week, Lorenz told the News Leader on March 2; therefore, she was unable to confirm when Lewis conveyed the information to the Save Siesta Key representatives.

Neither the Siesta Chamber nor the SKA has announced a position on incorporation, though Commissioner Smith told the News Leader that Chamber leaders have discussed the issue at length.

Luckner of the SKA noted, “We’ve helped facilitate any communication we can about [incorporation].” She added that, in regard to the SKA’s board taking a stance on it, “I think it’s going to come down to a lot more details.”

The state statute and interpretations of it

In researching the state law this week, the News Leader read one analysis published by the Fort Myers-based Henderson Franklin law firm on Oct. 27, 2022.

Attorney Taylor Bolt reiterated part of the comments in the League of Cities’ 2019 brief. Then he added, “Ultimately, the law passed by the state of Florida preempts or prevents a local government from enacting a rule that would ban short term rentals. Further, while local governments may regulate certain aspects of vacation rentals they cannot restrict the frequency or duration of rentals,” unless they had ordinances in effect prior to June 1, 2011.

Additionally, the News Leader reviewed a memo that Sarasota City Attorney Robert Fournier provided to the city commissioners on Sept. 8, 2020, as they were working on potential regulations of “hotel houses” on Lido and St. Armands keys. Visitors renting those accommodations had been prompting a growing number of complaints from residents on those two islands, similar to the concerns voiced by Siesta Key homeowners.

The city has a grandfathered-in vacation rental ordinance of its own.

First, Fournier also focused on Section 509.032 of the Florida Statutes, adding that Section 509.242(1)(c) of state law defines a “vacation rental” as a type of “public lodging establishment” that is “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 also a transient public lodging establishment but that is not a timeshare project.”

Another section of state law, he continued, defines “transient public lodging establishment” to mean “any unit group of units, dwelling, building, or group of buildings within a single complex of buildings which is rented to guests more than three times in a calendar year for periods of less than 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests.”

Fournier pointed out, “The City may not totally prohibit any use that falls within the scope of the statutory definition of a ‘vacation rental.’ ”

“Second,” he continued, “a local government is pre-empted from regulating the ‘duration’ of vacation rentals. This means that a local government may not regulate the length of time that someone can stay in a vacation rental, such as by imposing a ‘minimum stay’ requirement.”

“Third,” he wrote, “a local government is pre-empted from regulating the ‘frequency of rentals’ within structures that qualify as vacation rentals.”

Potential ‘work-arounds’

When the News Leader contacted Tim Hensey, chair of Save Siesta Key, on Feb. 28, he said that neither he nor the other leader of the nonprofit who met with county staff recalled County Administrator Lewis’ telling them about the short-term vacation rentals issue. However, Hensey acknowledged that the last meeting was months ago.

After SKA President Luckner contacted him about the Presidents Council discussion, Hensey indicated, he spoke with the attorney that Save Siesta Key hired to assist it with the incorporation initiative. The attorney told him, Hensey said, that “if and when Siesta Key becomes its own town, it’ll be a fair amount of time before the five town commissioners are elected and then they get their feet under them.”

As the News Leader reported last week, state Rep. Fiona McFarland, R-Sarasota, filed the incorporation bill in the Florida House on Feb. 17. If the bill wins final approval of both the House and Senate, and Gov. Ron DeSantis signs it into law, the referendum on incorporation would not occur until the November 2024 General Election. Then, if Siesta voters approve incorporation, the bill continues, a special election would be conducted on March 11, 2025 for the election of the town commissioners. The first town board meeting would not be held until late March or early April 2025, the bill adds.

Further, the bill explains that the Sarasota County Comprehensive Plan, which guides growth in the county, would be in effect for the Town of Siesta Key as its “transitional comprehensive plan. However,” the bill says, “all planning functions, duties, and authority shall thereafter be vested in the [town] commission, which shall be deemed the local planning agency until the commission establishes a separate local planning agency or arrangement.”

Hensey referenced that section of the bill in his Feb. 28 comments to the News Leader. “I would hope that those five commissioners would take that very seriously,” he said, referring to deliberations on, and final approval of, a Town of Siesta Key Comprehensive Plan. The process, therefore, could take a while, he added.

Thus, Hensey pointed out, it could be 2026 before the new municipality’s Comprehensive Plan is in place.

Even so, if the town’s plan did not address short-term vacation rentals, Hensey indicated that Save Siesta Key’s attorney had told him that the county’s regulations would remain in place.

Further, the nonprofit’s attorney — who is quite familiar with state law, Hensey said — had talked about the fact that a bill seeking to modify the state’s short-term rental regulations is filed practically every legislative session. Therefore, Hensey pointed out, it is impossible to know what state regulations will be in effect “when Siesta Key becomes its own town.”

Yet another potential option, Hensey continued, would be for the town commission to go ahead and adopt its own short-term vacation rental ordinance. “It could end up in a lawsuit,” he acknowledged. However, Hensey added, “There’s no guarantees in a courtroom.” Judges provide their own interpretations of state law and case law in their findings, Hensey said.

When the News Leader contacted Sarasota City Attorney Fournier for his views of the issue, the publication conveyed to him Hensey’s comments about Save Siesta Key’s attorney’s views.

Fournier responded in a Feb. 28 email, “I really couldn’t say whether a new municipality would have the benefit of being able to claim the benefit of a county grandfathered in regulation or not as I haven’t looked into it. But the argument in favor would seem to be that the new municipality would have been under this regulation when it was unincorporated area; and the argument against it would seem to be that the regulation was not adopted by the new municipality; but by the county. I am not aware of a case that has previously decided this issue, although there might be one, I just haven’t had occasion to look for it.”

Fournier added, “Note that local governments can regulate vacation rentals in other ways, but cannot prohibit them altogether and must refrain from regulating the duration or frequency of vacation rental stays.”