Rogers Sheffield & Campbell, LLP Responds To City Of Santa Barbara's Free Speech Argument In Vacation Rental Ban Suit
- Written by RS&C Editor
- Published: 03 March 2017
The March 3, 2017 front page of the Santa Barbara Newspress featured extensive quotes from Rogers, Sheffield & Campbell attorney, Jason Wansor. Yesterday, the Ventura court heard argument on Motions for Demurrer, Anti-SLAPP, and Preliminary Injunction. The Firm is representing Theo Kracke in his lawsuit against the City over its ban of short-term vacation rentals.
A judge is considering whether a lawsuit challenging Santa Barbara's short-term vacation rental ban should be tossed out on the grounds that, according to the city attorney, it is a frivolous attempt to stifle free speech.
Attorneys for Theo Kracke, owner of the vacation rental service Paradise Retreats, argue in court papers before Ventura County Superior Court Judge Mark Borrell that the California Coastal Act of 1976 mandates that cities in the coastal zone take steps to ensure low- and moderate-priced visitor accommodations with access to beaches.
Under its decades-old hotel ordinance, the city allowed — indeed has encouraged by way of issuing business licenses and collecting millions in bed taxes — rentals of single-family homes where stays are under 30 days.
That all changed, Mr. Kracke claims, on June 23, 2015, when the City Council, under pressure from the hotel industry, directed staff to crack down on the booming short-term rental market.
To accomplish this, the council, which controls the purse, gave $180,000 to three departments, including the City Attorney's Office, with an order to go after short-term rentals, which had increased in popularity thanks to Airbnb and similar services.
In doing so, Mr. Kracke argues, the city was required to apply for a coastal development permit from the state Coastal Commission because the ban ran counter to the public interest in providing alternatives to high-priced hotel rooms near the beach.
In court Thursday, while defending a motion that states Mr. Kracke's lawsuit is merely an attempt to violate the First Amendment rights of council members at that meeting two years ago, City Attorney Ariel Calonne called the businessman's argument about the requirement for a coastal development "unprecedented" and "a remarkable proposition."
Instead of taking legislative action, Mr. Calonne told the judge, the council "approved a simple minute motion directing their staff to do something."
"There is no City Council action," Mr. Calonne said. There was "manifestly protected speech."
"There was no development. There was no change at all."
If the judge allows the city's anti-SLAPP (strategic lawsuit against public participation) motion to stand, Mr. Kracke would be liable for the city's costs.
Mr. Kracke's attorney, Jason Wansor, told the judge that Mr. Calonne pushed a lot of "fog" into the courtroom.
When the city's hotel ordinance was enacted in the 1950s, said Mr. Wansor, "short-term vacation rentals were not even in existence."
Mr. Wansor said the council did indeed take action to ban such rentals, a move that was to go into effect at the beginning of this year.
"In doing that, that causes a development" under the Coastal Act, he said, thus a requirement to apply for a coastal development permit.
"This absolutely was not protected speech," said Mr. Wansor. "The city took action to change something." That something was the intensity of use of properties in the coastal zone.
In addition to throwing out the city's anti-SLAPP suit, Mr. Wansor is asking the judge to sanction the city attorney for filing it.
"We don't bring these every day and this wouldn't have happened if there was action on June, 23, 2015," Mr. Calonne told the judge.
The city attorney went on to say he understands and accepts the consequences of SLAPP actions "are very real."
"But they have chilled speech."
Before taking the case under submission, Judge Borrell laid out this hypothetical: A property owner fed up with people drinking on the sand in front of his or her beachfront home complains to the council that the city isn't enforcing existing laws against such behavior. After a meeting, the council gives, say, $180,000 to the chief of police and says go keep the beach clean.
"Is that an action or is that speech?" asked Judge Borrell.
Without missing a beat, Mr. Wansor explained why the matter at hand is different from where the judge was going.
In giving business licenses to short-term rental owners, the city is encouraging growth by essentially "handing out Jell-O shots" and saying "come to Santa Barbara" to enjoy the beach.
Eliminate drinking at the beach doesn't prevent people from coming to the beach, he said.
By taking action against the short-term rentals at that June 2015 meeting, so the argument goes, the city didn't just eliminate drinking at the beach, it took away low- to moderate-priced places to stay near the beach.
As such, said Mr. Wansor, the city was obligated to go to the Coastal Commission for a development permit, which would have allowed ample opportunity for public debate on the matter.
A tentative ruling could come any day.