Ed Martin: short-term rentals are all Patten's fault so vote for Sherman

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NOTE: In politically supporting Dave Sherman, former mayor Ed Martin is blaming me for my stance on short-term rentals, implying that I am in favor of not regulating them.

That would be not true. I live next to some nuisance long-term rentals that are nightmarish at best, so I'm more than sympathetic to people who find themselves living next to an ongoing and never-ending Spring Break party.

So I sent the following to Martin and to Marshall Happer, who seems to partially agree with Martin on this point.

Hold on here, buddy. This short-term rental fiasco is your mess, Ed. You created it, you perpetuated it, and you needlessly cost us a couple of million dollars in legal fees and judgments only to end up right back where we started.

If elected, I get a shot at helping to clean it up. Trust me when I say that it is not something I look forward to, and the cruelest thing you might do to me is actually put me in office.

First off, I am NOT ARGUING FOR short term rentals. I am arguing against the continual legal stupidity as perpetuated by our city's legal department to take us down the wrong roads in nearly every legal adventure we find ourselves in. I'm sorry if this seems nasty again, but I am out to win an election and you appear to be trying to make me look bad by saying that you were right all along.
You weren't and you still aren't.

Also, both you and Happer should be paying attention to the Clearwater and Brevard County cases. If you think Venice alone has legal problems in short-term rentals, think again.

As to Venice, go back and listen to the winning arguments in the Venice case made by attorneys Richard Rumrell and Valerie Fernandez. They are up on YouTube, linked to below. These are the arguments I base my legal logic on, as the court agreed, not Bob Anderson and Andrea Zelman's arguments which you still adhere to and which the court rejected.

Politically, your argument here seems to be that Ed Martin is right about the short-term rental law, John Patten is wrong, so therefore vote for Martin's pick, Dave Sherman. You are trying to make as much hay out of this as possible with all of the legal gobbledegook that you can invent in the hopes that nobody understands.

Your logical shenanigans here may actually cost me the election if you can confuse enough people with your deliberate obfuscation, so good work there, Ed.

However, I should like to remind you that you had your butt handed to you in court on this one in a ruling linked to below (with full text) like I predicted and stated you would back in December of 2007 when the hearing that you chaired and presided over took place.

Listen to the arguments again, the ones that won the case against you.

First, attorney Valerie Fernandez, who accuses the city of a regulatory taking [of rights and land values] with the ban, and she argues that you cannot do this without recompense to ALL homeowners affected, not just the ones currently or previously engaged in short-term rentals. That actually appears to be affirmed in the court ruling below, and I'll show you where just a bit later on.

Valerie Fernandez' argument filmed at the Venice short-term rental hearing over which Ed Martin presided.-- see http://www.youtube.com/watch?v=Y2PW9Moakjk

(note: I'm the one who posted all of these to YouTube back in late 2007)

Then comes Richard Rumrell, who exhaustively makes the same argument over the course of 40 minutes or so, which had to be broken down as YouTube only accepted clips of 10 minutes or less at the time:
Part 1: http://www.youtube.com/watch?v=IqGUfzlb-T0
Part 2: http://www.youtube.com/watch?v=_G7_woDEka8 -- main argument
Part 3: http://www.youtube.com/watch?v=jeGQNCVz0Sw
Part 4: http://www.youtube.com/watch?v=JXAU8XU8Cso

For Ed Martin, this should be deja vu as he chaired this hearing and ruled against Rumrell.

On appeal, Judge Robert Bennett ruled that the City (Ed Martin, et. al.) was in error. See http://miamibeachpropertyrights.com/Venice_order_CA552SC_3_2008.pdf
More importantly, see the Judge Roberts' ruling in the Martha Gwynn case: thttp://www.heraldtribune.com/assets/pdf/SH214941111.PDF (the city is currently appealing this case, however I predict that the appellate court will rule against the city again, and I've been right every time so far).

Ed is right partially when he states that the court ruled in favor of the Appellee (Gwynn) in part because she was short-term renting prior to the ordinance. Furthermore, the court acknowledged that under the ordinance (which was not exactly struck down in this ruling, but it was mortally wounded), it was possible for existing owners of resort dwellings to comply.

HOWEVER, and this is the part Ed never addresses, -- The court never addressed whether or not that stipulation exempting existing renters and forbidding future new renters was legal as the question WAS NEVER RAISED in this case, and it is a fiction for Martin to say otherwise. In Martin's favor, the court noted that a city has the right to enact ordinances that protect the character of a community.

But that's where the good news ends.

The rest is bad for folks who live near problematic short-term rentals, and here's why.

The court ruled against the City NOT ONLY BECAUSE Gwynn had been renting prior to the ordinance, but THAT ALSO SHE HAD THE EXPECTATION OF BEING ABLE TO RENT SHORT-TERM, INDEPENDENT OF ANY RENTAL OR NON-RENTAL IN THE PAST (page 7) -- this, then, opens the floodgates to ALL homeowners who owned homes before the ban, not just to ones that have rented in the past.

So on its face, based on this ruling, everyone who owned a home prior to the ordinance passing could still rent short term if they brought their homes up to structural and legal conformity before OR after the ordinance passed. This ruling affirms that by clear inclusion of the affirmation of Appellee's argument here that she merely had the expectation of being able to rent short-term (which tosses your "use it or lose it" clause out into the street, which is what I have been saying all along).

In other words, if you bought a house with the knowledge that you could possibly rent it out short-term, the court is stating that the city cannot take that right away even if you never exercised the right to date.

Now go back to Rumrell and Fernandez and their arguments about value and a taking. Listen to the whole thing. Remember, they won, the court bought their arguments, not Bob Anderson's.

Now as to rights that may be transferrable. The court didn't make this leap yet, but it is easy to see that it likely would and that these questions may prove to be the final undoing of the City's stance: Is there an additional tangible seller's price dollar value attached to homes that can be rented short-term? If so, is that value transferrable or does it expire with transfer of deed under the city ordinance?

The same argument that Rumrell made for existing owner/renters can be made here that such a denial by the city would constitute a taking and the seller and/or buyer might be able to successfully sue the city for a taking under Bert Harris as they ALL ALONG had the same expectation of being able to rent right up until the City said "no, you can't do that."

That same argument that Rumrell made wasaffirmed by the court. There is no reason to believe that the court wouldn't affirm it again.

The court ruled that you, Ed Martin, and the rest of city council were wrong in your application of the law.

I argue that you apparently haven't learned anything since.

I'm sorry, Ed, but you blew it. Except for the doomed appeal, it's over. Stop blaming me for pointing that out and for disagreeing with your political failures.

As to the problem of nuisances created by short-term rentals -- a different tack needs to be made, one that hopefully also protects folks like me who live next to long-term nuisance rentals.
Which, again, I stated back in 2007, but you didn't believe me.