STR WARS!
McCity's new favorite moral panic is already in a galaxy near you...here's your hitchhiker's guide
This is really super weird.
Currently, there are two nearly identical bills in the Idaho legislature that will clarify the legal standing of short-term rentals (STRs). One originates in the House and the other in the Senate. For the third year in a row, state lawmakers have wrestled with this hot topic. Since a commitment to “make sense” appears nowhere in the legislator’s oath of office, it will take someone with a lot more expertise in statehouse maneuvering than we possess to explain the logic of two identical bills.
So far, as with everything that has anything to do with property rights/land use, the STR debate has been 95% irrelevant emotion and 5% useful fact. The state has a real opportunity here to clear the ambiguity surrounding this emergent property class. That would be to the benefit of all Idaho’s current and future property owners.
How Dare They? Easy answer: “local control” is not a city right, it is a delegation
Somebody please teach McCity this civics fundamental. The city’s recent howling on social media about the legislature “stripping” code and “forcing” cities to bow is, sadly, empty McHype-as-Usual. McCity can’t be stripped of authority it never owned. Caretakers can’t claim “control” of the properties they tend because the owners authorized them to plant the garden. The legislature isn’t usurping the gawd-given rights of cities. The way McCity is going on, this is akin to President Grant swindling Sitting Bull out of the Badlands.
In the U.S., states have authority over land use. But the state doesn’t want to get into the business of deciding where a coffee shop goes in McCall or Buhl. So, way back when, it delegated all that tedium to counties and cites. When a new land use is emerging or has statewide impact (both are in play with STRs), the legislature has claimed its ultimate authority to act on behalf of the state’s citizenry. The practice is consistent with its general philosophy and history. In legal lingo, the term is “state interest.” Though it’s fairly rare that the legislature pokes their noses into local autonomy, it’s by no means out of character. (see Nerdist Colony for specifics)
After mangling the description of legal pecking order, McCity’s statement goes on to unapologetically insinuate that STR owners are a plague of rats who must be “controlled” for “health and safety.” In other words: raise hell with your legislator or there goes the neighborhood. No, they didn’t directly call them vermin. But southern segregationists used a lot of noble language to obfuscate their base discrimination too (See Links section to evaluate our interpretation).
It would be so refreshing if, just for once, McCity would respect their citizens’ intelligence. All they needed to do was to calmly present an adult summary of the pending legislation and how it would change STR regulation in McCall. Here at Letters, we deeply admire the acuity of our readers. So we are going to walk through STR-Wars, as it is affectionately known around this household. Our review is only on process, so anybody who has their minds set on this topic won’t find emotional support from us. But nobody is going to feel lectured at or talked down to.
STR: a distinction without a difference
Under either legislative bill, common local code for things like noise, parking, trash, and like nuisance enforcement would be the same for STRs as it is for other properties classified as residential. In McCall, all STRs are subject to additional requirements such as annual fire/safety inspections, permit renewals, etc. Backers of the legislation argue that these extra burdens are discriminatory. There’s solid logic to that. The most vivid illustration is that no such requirements apply to vacation properties that are not rented. The two use types are much more similar than they are different. Both are at peak occupancy seasonally. Both uses are people at leisure and therefore are more prone to noisy frivolity and “party parking.” Vacation property owners often give the keys to guests (or progeny) or are multi-family owned and rotate occupancy almost as much as STRs. We don’t need statistics for that, it’s just common knowledge.
At last week’s hearing on the House bill, a few citizens in favor of heavy restrictions brought anecdotal horror stories about living next door to an STR “party house.” There is no reason to doubt them and every reason to sympathize. But those who suffer with a permanent neighbor they detest might be thinking: “geez, we should be so lucky. At least they get a different asshole every few days.” Disputes between neighbors are not exclusive to STRs so on what grounds are STRs singled out?
Notice something missing so far? How about some actual stats? In a lengthy letter in The Star-News, the new McMayor writes, “many STRs function like mini hotels within residential neighborhoods, affecting neighborhood livability and local services.” How many is many? STRs are registered with the city. Doesn’t McCity police or McCity Hall keep records of nuisance complaints that can be traced to these properties? In fact, the mayor’s entire letter justifies extra regulation of STRs solely on the existence of who-knows-how-many rogue properties causing who-knows-how-much disruption. That’s no equitable way to set policy. Conferring negative characteristics based only on membership in a class is bigotry, as we pointed out in a previous post (see Links)
Lobbying is a filthy practice only when the other guy does it?
We suspect that this arbitrary finger pointing is the very reason the legislature has been convinced it must step in. We’d like to see McMayor document another claim he made: that this is all driven by real estate interests. Sure, a little lobbying pressure never hurts in politics and there’s a clear real estate business interest. But there were also a lot of pissed off STR owners at those hearings too.
And speaking of special interest lobbying, what about McCall’s membership in Idaho Resort Cities Coalition? McMayor describes it in an offhand way that makes it sound like a loose, casual consortium. Hardy that. This group is documented as retaining the services of a well known Boise lobbyist on a $60,000 annual contract. McCall pays public funds into this organization. The lobbying contract lists protecting STR regulation as a principal objective. So once again, the city is spending public funds to lobby the interests of its preferred property classes, while compelling the disfavored class to pay into the fund. And all the while, McMayor is kicking dirt on the real estate industry for lobbying. Is lobbying called something else when a city does it? We missed that day in civics class.
The legislature got involved in this because they found compelling evidence that resort cities in particular were threatening to violate Idaho’s traditional stance against arbitrary property regulation. COVID sparked a rapid growth of STRs that spurred lawsuits and other cockfights over property rights. The Great Boise Bear finally couldn’t sleep through it anymore. It lumbered to life.
McCity’s policies walked right into this arbitrary characterization because they don’t have any studies or numbers that document their case for special regulation of STRs. That’s significant. Property regulation by preferences and class and not by rights is frowned upon by all states in this union, not just this one (with the possible exception of California). Even McCity’s win in an STR lawsuit last year doesn’t legitimize the city’s policies in the way McMayor claims (more in Afterthoughts).
The Battle of the Bills
Both of these bills say the same thing using different semantics. While the House bill says “no, no, a thousand times no,” the Senate bill is the smoother talker. It says to cities, you can require all these things of STRs as long as you require them for all residential property owners. Since there is no way the average homeowner is going to sit still for the annual fire inspection requirement currently required of STRs, the Senate bill is a de facto ban dressed in a tux. There’s a silly licensing threshold in it that supposedly exempts “mom and pop” operations, but the bar is set so low, almost any STR in McCall would need a license.
The legislature’s mission is a) reduce lawsuits by replacing vague language with clear intent and b) deliver a consistent property right expectation throughout all Idaho’s jurisdictions. Both clearly intend to bind STRs to the broad class of residential uses. Once that is done, then there’s no need to be any more specific.
It’s weird that the Specter of Evil in McMayor’s letter, aka the “party house,” is absent in both bills. He hung the whole justification of regulating STRs on defending the fair maiden “Neighborhood Character” from the Dark Knight, “Mini-Hotel.” STR Wars wreaks with assumptions propped up with anecdotes. That is a very poor basis for policy. Even the legislature would benefit from pulling back another year to commission some hard numbers so they are on more solid ground on what they are dealing with. But they’ve got a hot political potato here and they are not going to lose such a rhetorically rich asset in an election year.
Last week, the House passed its STR bill with only 16 votes against. Even four Democrats voted for it. Now the spotlight moves to the Senate bill. We have been trying all of our adult lives to figure out politics and bureaucracy. We’ve never seen two bills so identical that even their sponsors probably can’t tell them apart. One thing’s for sure. If the Resort Cities lobbyists beat back both, Marvel Comics should find some superheroes to name after them.
The legislature’s role is to prevent local governments from using police power to erase rights the state considers fundamental to all of its citizens. Among those are Idaho’s long-standing traditions against curbing fundamental ownership rights when harms are speculative. Owners shouldn’t be prevented from renting their properties merely because governments “presume” a trend is going to continue (or even to judge that the trend itself is harmful without definitive evidence). Nor should local government be allowed to use inequitable requirements to discriminate, while exempting other preferred property uses.
“I have full respect for the rights of private property owners, which means I have respect for the homes that are located next to these short-term rentals,” a legislator sniffed in opposition to the House bill last week. Think hard about the blanket assertion she is making. If you live next to a short term rental, your rights are violated because everybody knows that living next to any STR automatically constitutes a hardship.
The unconscious bias in this legislator’s words are a wrong that doesn’t get any more plain. The legislature is rightfully stepping up to resolve this festering matter. But remember that their job is to eliminate arbitrariness. Without any definitive statistics to help them fairly evaluate the problem, they are in danger of merely perpetuating it.
Just. Sayin’.
➡️ Scroll down for the Afterthoughts after this commercial break. Topics: selective math, STR victims, more McCity overstatement. For our Nerdist Colony: history of “state interest,” morality plays, last year’s STR bill.
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🟧 Afterthoughts, Observations and Authentications
• Ya gotta love selective math. McCity argues that STRs are a scourge because there are now 437 of them against 1400 year-round residences. This is destroying “neighborhood character.” They deliberately leave out the roughly 2,830 vacation homes that aren’t STRs in the city. That’s a rather glaring omission, no? What do they think a typical McCall neighborhood looks like? A lot of empty houses is what they look like. It’s an entirely reasonable projection that a lot of these STRs are next to other vacation homes. Here are the real numbers extrapolated from McCity’s own figures: only 15% of part-time residences are STRs. Only 9% of total residences are STRs. In years past, the great cry was that neighborhoods are becoming vacant ghost communities. STRs at least bring some life into residential areas. Make no mistake. The “local control” crowd are NIMBYs. They don’t like “outsiders” period. And that’s fine. Xenophobia is legal. Just be honest about it.
• If there are true “STR victims,” they probably live in condominium complexes. This is one residential class in which the combination of adjoining walls and the number of STRs have combined to make the peak summer seasons an inescapable misery. Here is where Homeowners’ Associations (HOAs) ride to the rescue without the need for special use classification of STRs themselves. If these compensation allowances are insufficient, then they should earn legislative review. But of all the testimony we studied on this debate, the subject of condos has never come up. The effectiveness of HOAs may be the reason.
• Nice try, no cigar. Even McCity’s win in an STR lawsuit last year doesn’t legitimize the city’s policies in the way McMayor implies. This explanation is deliberately oversimplified to give a general idea. When a plaintiff sues a city over its policies, the judge looks first to see if the regulations obviously violate any state or local law. If there is no smoking gun violation, the next test is if the regulations are “rational.” Proving a government entity acted irrationally in the legal sense is nearly impossible. Game over, as it was in this case. But there is a cavernous difference between “rational” and “equitable.” The judge wasn’t deciding equity, which is what the debate currently in the legislature is about. If the state law changes to classify STRs as residential, the same lawsuit tried again would almost certainly go against McCity.
🟧 Nerdist Colony
• History as prologue. This isn’t the first time the legislature has asserted its land use authority regarding STRs. In 2017 it limited local prohibitions and other certain regulatory inequities. The legislature has also set statewide standards to balance local incongruity and litigation risk in policies such as rent control, building codes, accessory dwelling units, etc. It has also declined to intervene in such matters as zoning uniformity, impact fees, design review policies, etc. So McCity’s position of “how dare they,” fails to be honest about the state’s record and legitimate exercise of “state interest.” Those who agree with the city’s STR policies should still feel a deep revulsion for the Big Brother propaganda tactics the city feels so comfortable employing. No one reading their website post could possibly characterize it as an effort to provide the citizenry with the means to make up its own mind on this matter.
• Just because they can doesn’t mean they should. On a related topic, the city’s relentless vitriol even found objection expressed on the House debate floor, as reported by Valley Lookout. Policy advocacy by publicly funded entities is a topic we have visited many times. It is indeed legal. It is one of those trade-offs that is counter intuitive in a system so focused on protecting the individual against government power. Government entities may not openly advocate for candidates or ballot measures. But in their capacity as elected officials, McCity legally determines the best interests of their constituents and are enabled to advocate on their behalf against other policies that threaten those interests. But McCity isn’t compelled to be so shrill. This is a deliberate choice they have made. It brings up a question regular readers have seen us ask often: just because they can do it, should they? In recent years, McCall voters have turned down the opportunity to elect alternative voices when given the chance. And very few alternative voices have run. Until there is enough public unrest with McCity’s policies to unseat those who set them, expect more and more brazen hyperbole in the future.
• Scatter shot. Last year, an STR bill with the same provisions as the two being considered this year went down in flames in the Senate. The $60,000 lobbyist the Resort Cities Coalition hired probably had a lot to do with that. The floor debate on last year’s bill was disjointed and rudderless. Attempts to amend it only created more factions of disagreement. This is the kind of environment lobbyists hired to disrupt momentum thrive in. But from the overwhelming support for this year’s House bill, including four Democrats, last year’s win for McCity is likely to be a win-the-battle, lose-the-war investment of their citizens’ public funds.
Links
• McCity’s idea of public information
• McCity’s relentless vitriol even found objection on the legislative debate floor, as reported by Valley Lookout.
• Policy advocacy by publicly funded entities is a topic we opined upon in a previous post (actually two, this one has a sequel)
• STRs aren’t the only thing trending locally. So is bigotry towards them.
Ms. Grote,
I guess you cannot truly understand another person's experience unless you have walked in their moccasins. As you must have seen on the electronic feed from the House Business Committee meeting last week, I was one of those McCall residents who testified against HB #583. Mine is not a case of xenophobia or disdain for STRs. I have lived in many places in my long life and have experienced the occasional ornery neighbor but I have never endured the misery of having a short-term rental as the house next door. Many short-term renters, as I have learned for the last 14 years, are a different beast. If I have an issue with a full-time neighbor/homeowner I can reach out to them and have a friendly discussion of the nature of the problem. 99.9% of the time, problem solved. Many short term renters could care less about my concerns. They're here to have a good time and "screw you" if I get in their way. I know that, if I see cases and cases of beer being carried into the STR next door when the renters arrive, there's going to be trouble. (many of those beer cans are going to end up in my yard for one thing). As I said in my testimony at the Capitol, every year since I moved into my cabin full-time I've endured loud, all-night parties, large gatherings (bachelor parties, reunions, etc. etc.), blocked streets, renters pitching tents in the yard, (including mine), trespass, trash and litter (I do my morning cruise in my yard to pick up beer cans, broken glass, dog feces, [and occasion human], used Styrofoam food containers, soiled Pampers, etc.), amplified music, (there's nothing like waking up to AC/DC blasting from the boom box at 3 AM), uncontained and frequently unattended bonfires spewing sparks into my fir trees, nudity (for some reason renters who come to McCall think that skinny-dipping in front of my grandkids is their right), drunken brawls, (particularly popular at bachelor parties), and gross disrespect towards me and my family, (I've become nearly immune to F-bombs). None of this kind of thing happens with my part-time neighbors on the other side or when the owner of the STR is staying in his house.
I believe in "property rights" but I have rights as well. The very reasonable rules in the McCall and Valley County short-term rental ordinances have been a small buffer against the insanity and chaos next door. That's all I am asking for as a full-time homeowner. Without those rules, Katy bar the door! What is it that I request from those ordinances? Enforceable quiet hours between 10 PM and 8 AM, no highly amplified outdoor music, outdoor fires contained in an approved fire structure, trash contained in bear-proof garbage cans, reasonable parking limits that can be handled by the on-site driveway, no tents or trailers on the property, occupancy limits (10 for the city, 12 for the county), a local individual or management company who can be contacted in the event of problems (I am loath to call the Sheriff at 3 AM for a noise complaint), use of the STR for residential purposes only, and reasonable licensing requirements (these are businesses after all). The threat of rescinding a STR license for repeated violations is the only enforcement mechanism that has any chance of being effective. I really don't think that this is too much to ask.
Now, in its infinite wisdom, our Idaho legislature wants to take away our community's ability to maintain common-sense and reasonable controls on short-term rentals with HB #583. It's rich that the Chair of the House Business Committee who co-sponsored this legislation is the owner of multiple STRs in North Idaho. I have little sympathy for the real estate representatives and the lawyer for Airbnb who testified at the hearing, money talks. I have nothing against the "Mom and Pop" STR owners who testified and nothing against well-managed and modestly regulated short-term rentals in Idaho. We just need some balance, though, in the form of fair-minded and reasonable local regulations ensuring health and safety for the renters and fairness towards the full-time neighbors who have the misfortune of finding themselves living next door to one of these frat houses.
Greg Irvine
McCall
I agree that statistics on STR complaints should be provided, and I am aware that the city of McCall, MPD, MFD, and a management company I worked for have complaint stats.
One bill is enough with all the variations and frustrations that got dragged into both bills. I understand there is language in the bill requiring smoke detectors and an occupancy cap. Good.
Sadly, there is no inspection mechanism in the bills. While no bill is perfect, this omission will put STR guests and full-time residents living next to STRs in danger. I quit my job because I couldn't ignore safety issues I witnessed, such as bedrooms without egress, and the excuses some STR owners made for not spending the money to fix safety issues.
It's not unreasonable, whatever the cost to a STR owner, to provide an egress window for bedrooms, and if they are unable, it should not be used as a bedroom. IRC section R310 requires egress windows for all STR's and homes.
If the bill passes, we will need to trust the STR owner and management company to comply with the regulation. And bedrooms have been created without permits and without egress.
Portions of this bill have nothing to do with property rights and more to do with the profits of STR owners and STR rental companies, which lobby against commonsense inspections and state building and fire safety regulations. I am thankful that the City of McCall and BFD move over the past few years have opened important conversations about fire safety for STRs and have improved safety for everyone. It's sad to think we would go backwards on safety, and I don't understand how mandatory inspections would harm anyone's property rights.