Hans Laetz / Special to the Daily Press

A legal gambit drafted by Malibu Councilmember Bruce Silverstein and signed on by the Malibu City Council went down in flames before the California Coastal Commission Friday, when the Coastal Commission said all rules governing short term vacation rentals (STR) in the city were null and void.

By a five to three vote, the commission told the city its plan to regulate overnight rentals was too strict. And by refusing to negotiate a compromise with Coastal Commission staff, the death of the STR ordinance means that all city rules on overnight rentals are not legally valid, the commission chairwoman told Malibu officials.

The city proposal to ban overnight rentals unless a host is present was aimed at preventing the rental of party houses. But Coastal staff said it would drive too many Malibu homeowners out of the overnight rental business. 

Silverstein, an attorney, had crafted a legal strategy of telling the Coastal Commission staff the city would not negotiate and would simply start enforcing city zoning codes that he said prohibit commercial activity in residential neighborhoods. 

The problem is the state Coastal Act preempts those zoning codes. And the City of Malibu has never enacted an ordinance that bans overnight rentals of houses; to the contrary, it allows STRs if a tax is paid.

Now, even that is in question. The chairwoman of the Coastal Commission said Friday that Malibu has no certified overnight rentals rules, which means a homeowner could violate the Malibu permit, fee and safety requirements with impunity.

At the Coastal Commission hearing Friday, Silverstein started by attacking the Coastal Commission staff for rejecting the city’s plan to require hosts to be at overnight rentals.

“Here what I see constantly — and certainly here today — is a report that simply rejects and denigrates every person who has put in something in support of this compromise proposal,” Silverstein said. “This is a result of a multi-year process in Malibu. People were heard in all directions. This allows short-term rentals. It also protects the residential character of the neighborhoods in Malibu, which, under proper zoning interpretation, should not allow short-term rental to transient visitors at all.

“Highest courts in multiple states have addressed this question and directly held that banning zoning ordinances for residential neighborhoods, when properly interpreted, actually preclude short-term rentals — full stop,” Silverstein continued. “I believe that’s the proper interpretation of Malibu’s zoning ordinance.”

Coastal Commission Chair Donne Brownsey replied that other states do not have a strongly worded Coastal Act or a Coastal Commission that has a mandate from the voters and the state Legislature to overrule places like Malibu.

Brownsey made it clear that the Coastal Commission is running the show, not the mayor pro tem of Malibu, and that the staff report is correct. 

“You are enforcing an uncertified ordinance … It is a violation of the Coastal Act,” Brownsey said. “So … if anybody doesn’t comply [with Malibu’s STR ordinance], legally, they do not have to comply.”

Brownsey said Malibu has no legal leg to stand on if it tries to enforce any supposed rule against renting out a house for any period of time. Malibu cannot apply an ordinance policing STRs until that ordinance is certified as complying with the Coastal Act by the Coastal Commission.

In fact, the chairman all but said that by failing to negotiate with Coastal, Malibu has shot itself in the foot.

Thus, Malibu’s STR ordinance is dead until Malibu can come up with a compromise acceptable to the Commission.

And there is an opening for that. It was a five-to-three vote and some of the Coastal Commissioners felt that overnight rentals are displacing low income people up and down the coast.

That includes Commissioner Paula Aguirre from Imperial Beach.

“The impacts are really felt mostly by working people and I would just ask us to think about whether the displacement that’s caused by short-term rentals, whether those rentals are in multifamily zones or single-family zones, does not impact our coastal visitors?” Aguirre said.

“Absolutely — it absolutely does,” Aguirre continued. “Because who do we think is being displaced with these short-term rentals? It’s the working people that serve our coastal visitors.”

But the Coastal Commission chair had strong words for Silverstein. 

Brownsey repeated that Malibu cannot enforce any action against people who rent out overnight rentals until it comes up with a plan that is approved by the Commission.  

“That’s the law. You just don’t get to pretend it’s not there,” Brownsey said. “You have to come to the Coastal Commission so that we can help you hit the right marks. We’re not trying to get in your way; we’re trying to ensure a balance and that you follow the law. That’s our jobs. We’re not trying to be mean, we’re just trying to do our job.” 

The ball now is back in Malibu’s court.

The city can instruct its staff to meet with Coastal staff to see if some sort of compromise can be worked out on the issue of hosts at overnight rentals and take the ordinance back to the Commission.

Incidentally, one of the major problems for the commissioners was the lack of hotel rooms along the Malibu coast and the need for overnight visitors to rent rooms in houses instead of being able to stay in a hotel. Next week, at its Aug. 23 meeting, the Malibu Planning Commission will consider renewing a permit to convert the last possible big vacant lot in Malibu from hotel uses into a cemetery.

A version of this story was first broadcast by KBUU News Malibu.