Councilmember is Tiburon’s top Airbnb renter
A year and a half after ban of short-term rentals, dozens of residents still violating law — and two officials’ properties illustrate problems with enforcement, ban’s intent
Editor’s note: This article first appeared in the April 26, 2017, edition of The Ark. It earned first place for Investigative Reporting and first place for Coverage of Local Government in the California Newspaper Publishers Association’s 2017 California Journalism Awards contest.
By DEIRDRE McCROHAN
dmccrohan@thearknewspaper.com
In November 2015, while still Tiburon’s mayor, Councilmember Frank Doyle joined Airbnb and began using the short-term-rental service to list his family’s 1963 Airstream Safari for about $100 per night. Over the next 16 months, the shiny, silver-finish trailer — outfitted with a bathroom and a kitchen with a Gaggenau range and which he and wife Leslie parked in a clearing of oak woodland next to their Round Hill Road home — would become the Tiburon Peninsula’s No. 1 Airbnb destination. Based on the 147 reviews it had received by late March, on average it drew new guests about every three nights, one review for every stay.
The problem is, short-term rentals are illegal under Tiburon’s vacation-rental ban.
The same month Doyle opened his account on Airbnb, the Tiburon Town Council had voted — with Doyle and then-Vice Mayor Erin Tollini dissenting — to ban vacation rentals by rescinding a 2010 ordinance that had allowed rentals of 30 days or fewer if homeowners received a permit, procured a business license and paid the town a hotel tax.
With Councilmember Alice Fredericks, Doyle sat on the 17-member citizen subcommittee dedicated to studying the alternatives to an outright ban. Later, in January 2016, he was part of a unanimous vote that approved $1,000-per-day fines for violators, plus, in egregious cases, fines for investigative costs, payment of back-owed hotel taxes and forfeiture of all rental income to reimburse visitors.
But Doyle had found a loophole in the ban.
“It’s a camper,” he said in a brief interview earlier this month. “It’s not in my house.”
It’s true. Under the language of the zoning ordinance, the vacation-rental ban applies only to legal dwelling units, and campers don’t qualify, according to Tiburon Community Development Director Scott Anderson.
However, that doesn’t mean the Doyles weren’t breaking the law. By hosting hundreds of Airbnb guests in the Airstream over the past 1½ years, the Doyles appear to have been in violation of another rule, Anderson said, as the zoning ordinance also states that it is “unlawful for any person to place, keep or maintain, for dwelling purposes on any property, any travel trailer, automobile, truck, recreation vehicle (or) camper.”
Doyle has never been cited under either rule. Town officials across the board say that’s because they didn’t know about the rental’s existence. Along with Anderson, Tiburon Police Chief Michael Cronin, Town Manager Greg Chanis and Planning Manager Dan Watrous all say they were unaware Doyle was using his camper as a vacation rental.
Aside from the brief phone interview, which he ended, citing time constraints, Doyle otherwise repeatedly refused further opportunities to comment when contacted by phone and in person over a 1½-week span.
In an email reply at The Ark’s press deadline, Doyle simply stated “Didn’t see a problem” in response to whether he asked town staff whether it would it would be OK to rent his camper under the rules of Tiburon’s zoning ordinance.
The Doyles’ short-term rental issue is now moot, as Doyle recently announced he was resigning from the Town Council and delisted the trailer because his family is moving to Bozeman, Mont. Doyle has said his last council meeting will be May 3.
However, the situation continues to raise questions about the town’s short-term rental ban, its effectiveness — and the intent of councilmembers when they approved it.
The spirit of the law
While the ordinance stipulates that it applies to legal dwelling units, the resolution accompanying it specifically addresses the preservation of the “quality and character of (the town’s) existing single- and multifamily residential neighborhoods.” It notes short-term renters “do not have any connections to the Tiburon community and the residential neighborhoods in which they are visiting” and that visitors have “on well-documented occasions disrupted the quietude and residential character of the neighborhoods and adversely impact the community.”
Allowing trailer rentals doesn’t appear to fit the spirit of the law. But during the three hearings in which councilmembers considered the ban, and also mentioned in the resolution accompanying the ordinance, the primary focus of debate and concern was on absentee speculators and homeowners who intended to create income properties by renting their entire homes out on a regular basis. Such homes could — and did — become “party homes,” at which large groups and their guests could congregate and draw noise, parking and garbage complaints from neighbors.
By September 2014, when The Ark reviewed the handful of complaints to the town as part of its investigation into the open secret of illegal short-term rentals in Tiburon, just three homeowners had permits — a number that grew to 10 over the next year before they were all rescinded under the 2015 ban. But there were 30 listings on Airbnb and 44 on VRBO.com at the time of the investigation, mostly for big homes with expansive views and with no owner on site.
Residents at the council hearings, on community websites such as Nextdoor.com and in the pages of The Ark argued that the small number of complaints compared with the number of available rentals was evidence that most weren’t a problem. Some said Airbnb was a great way to make extra money when they were away from home on vacations of their own, while others said that owner-occupied rentals — those in which the homeowner remains on-site while renting out a room or second unit — don’t pose “party house” problems. Such properties draw fewer, quieter guests who are seeking an alternative to downtown hotels and therefore don’t disrupt neighborhoods or create more trash or parking problems than if the room or unit had a long-term resident, they said.
Doyle was on the subcommittee that studied alternatives to an outright ban, including possibilities of allowing short-term rentals while finding a way to discourage high-frequency turnover. While the ability to devote staff to review, oversight and enforcement of permits was an overarching problem, the council passed on the opportunity to make the law more focused — suggesting officials intended the law to broadly apply to all short-term rentals, including the Doyles’.
But in approving a law that applies universally to all, and to only dwelling units, the council backed an ordinance that didn’t pertain to what would become the most popular Airbnb in Tiburon but made a second public official’s rental expressly illegal.
Going underground
Design Review Board member Linda Emberson began listing two of the rooms in her Hawthorne Drive home on Airbnb in February 2014, without a vacation-rental permit from the town, running it illegally for the next 20 months. At the height of debate, with an outright ban on vacation-rentals appearing likely, she applied for a permit on Oct. 5, 2015, a request that was granted three days later. The next month, the council approved the ban, meaning her permit would sunset on Dec. 31 of that year.
However, Emberson continued to rent out rooms in her home on a short-term basis, with her Airbnb listing still active through late March 2017, some 15 months later, before it was withdrawn. In an interview, she acknowledged she was still using the site but said her listing was on “snooze,” as she now has two long-term renters, including a local tennis-club pro.
She also acknowledged she did not permanently delete the listing because she would lose the descriptions and photos and would have to start over again when she wants to use Airbnb to look for renters in the future.
Emberson said she rarely rents out the rooms for less than 30 days, and that when she does, it’s only so a potential long-term renter can see if the living situation is to their liking.
That claim seems to conflict with the intended draw of the site for property owners and renters — as a marketplace dedicated to short-term lodging — while a check of Emberson’s listing in March showed she had received 65 reviews in about 36 months, an indication she had rented out rooms every few weeks on average. The minimum stay listed on her ad was for a single night. Emberson said the average length of stay during the high season may appear shorter because the rooms are in less demand in winter. However, she could not produce copies of long-term rental agreements to back up her claims.
Emberson frequently vented her unhappiness with the short-term rental ban in posts on Nextdoor.com, and in mid-2015, before the council decision, she also didn’t describe her renters as long-term tenants whom she found through Airbnb. Instead, they were people attending weddings, Europeans on vacation, businesspeople on short trips or those relocating to Tiburon who wanted to check out the area before buying or renting elsewhere. Those leaving reviews also appeared to confirm they were renting short-term.
Emberson said in the interview that Air-bnb is “a great place to get long-term tenants” but using the website has created problems.
“It’s the wrong way to go, because it opens you up to complaints from neighbors who are convinced that you are renting illegally,” she said.
She added that before the ban she was renting day by day to get her finances on track after a family emergency pulled her out of town.
Then, as talk of a ban began, she joined the residents who said the town should focus on an ordinance that allows owner-occupied properties. Online, she urged supporters “to voice opposition to this virtual taking of our property rights” and to run against Councilmembers Fredericks, Jim Fraser and Emmett O’Donnell — the three who voted in favor of the ban — when their terms were up.
Just after the ban was passed, she posted in part: “We need to challenge this decision but I have no idea how. I could get myself cited and then sue the town? Let the courts decide? Any lawyers who would take my case pro bono?”
When interviewed earlier this month, however, Emberson said: “Do I intend the break the law? No. Do I think this law needs to be rewritten? Yes.
“I don’t think enough time was spent on figuring out how to craft an ordinance,” she said. “If you’re living in the house, you aren’t going to let people party and be loud and obnoxious with the neighbors. I think I’ve been a good neighbor to everyone around. The town could have written an ordinance that makes more sense. It’s not well thought out.”
Emberson acknowledged, however, that Watrous, the town’s planning manager, recently insisted she remove her listing after a neighbor complained of a suspicion that she was violating the law.
Complaint-driven enforcement
Watrous says enforcement of the law to any degree is difficult unless the town receives such a complaint. Companies like Airbnb display maps showing the approximate locations but not the addresses or exteriors of the homes for rent.
That made it hard to enforce the previous ordinance requiring registration, permits and payment of hotel taxes. It also makes it difficult to enforce the outright ban.
Cronin, the police chief, said his officers aren’t the front line on enforcement.
“I’ve had a couple of noise complaints about short-term rentals, and we go out and check that out,” he said. “We try to let the Planning Department know. We knock on doors, look for lights, check license plates. I don’t remember anyone complaining directly to the Police Department about an illegal Airbnb ever.”
According to the Planning Department, only two complaints have been received.
Chanis said the ban is hard to enforce because of limited staff, but, when a complaint is received, the staff first responds by sending out a letter to the suspected violator informing them of the law.
“Ultimately we’re trying to get people to comply with our ordinances, not to punish people, so we tend to take a progressive approach,” Chanis said. “This is a difficult area to police, and it varies situation by situation. …
“The reality is that, in some neighborhoods, people don’t care. There’s no easy answer. If we were going to elevate our level of enforcement, which ordinance do we start with? It’s a difficult situation.”
During council deliberations in 2015, Fredericks acknowledged the enforcement problem in drafting the ordinance.
“If you’re a gamer, you can find a way,” she said at the first hearing. “We’re considering this because we want to protect the character of our residential, family-zoned neighborhoods. The underlying truth is that responding to complaints is easier than dealing with noncompliance with permits.”
The latter comment seems to speak most accurately to the effective state of the ban under current town staffing levels: That it exists with a wink and a nod to responsible property renters, but it still can be used as an on-the-books enforcement mechanism for those who cause problems in their neighborhoods and draw active complaints. For camper renters like Doyle, other laws are applicable instead — but again, only if a complaint is filed.
In an interview last week, Fredericks said she would not speak specifically to Doyle’s or Emberson’s situations, as she had no firsthand information about them. She continues to support the ban.
“The bottom line is that Airbnb would not give us the information we needed to regulate (vacation rentals),” Fredericks said in the interview. “Until the listing agents give us the information we need about who is putting units out on a short-term basis, we won’t be able to regulate it responsibly.”
However, Fredericks said nothing she’s aware of would prompt her to ask for changes to the ordinance.
“So far, the short-term rental activity seems to be less impactful on the neighborhoods than construction activity,” she said.
Fraser, now the mayor, regularly declines comment to The Ark and did not return telephone calls. In attempts to interview him by email and in person, he declined comment on his personal understanding of the spirit and intent of the ban as he voted for it, referring The Ark to town staff for any questions about the ordinance.
Fraser was the swing vote in 2015, initially backing the ban before voting during a second hearing to continue gathering community opinion. That’s when the subcommittee was formed to explore alternatives. He finally reaffirmed his initial vote and backed the ban again in the third and final hearing.
In a reply to The Ark’s second email seeking his perspective, Fraser offered comment on whether it’s appropriate for members of public boards — like Doyle and Emberson — to be skirting or flouting the law.
“Regarding all town employees and officials, they, as I do … should hold themselves to a high standard of ethics professionally and personally,” he wrote.
O’Donnell also declined to comment and said he didn’t want to discuss the ordinance and whether it has weaknesses without looking into it first.
He also said he did not want to comment on Doyle’s camper rentals.
At the final hearing in 2015, however, he said, “My job is to protect the integrity of the community spirit. … Although it might be great for those who want to monetize their property, this is not in our community’s interest.”
Earlier, at the first hearing, he said: “If you live next to the person who doesn’t care about the rules, it’s disconcerting and doesn’t fit the character of what we’re all about.”
The only councilmember willing to speak directly to an understanding of the spirit of the law was Tollini, who, with Doyle, voted against the ban.
“I think the council direction at the end of the day was: No short-term rentals under 30 days,” she said last week. The idea that people would rent out campers, yurts, tiny houses on trailers and other nonpermanent dwelling structures on Airbnb “was never on my radar.”
“It sounds like we need clarification on that point,” she said.
Tollini, however, has announced she’ll step down from the council in June, as she and her family are moving to Washington, D.C.
While she declined to comment specifically on the Doyles’ or on Emberson’s situations, Tollini said she knows people who rented rooms and homes before the ban and have since stopped.
“There are a lot of people who are law-abiding, and it’s not fair to them to allow other people to not abide by the ordinance,” she said.
Tollini — like Doyle himself — had predicted during council deliberations that a ban on short-term rentals would guarantee they stay underground and unregulated.
At the first hearing in August 2015, Doyle said short-term rentals offer people the opportunity to make a little bit of extra income so they can travel on vacation.
“I don’t want to force people to break the law,” he said at the time.
As of The Ark’s publication deadline, there were 34 Tiburon properties listed on Airbnb and 22 on VRBO, with some overlap. All are illegal.
Deirdre McCrohan has reported on Tiburon local government and community issues for more than 25 years. Reach her at 415–944–4634.
