Appeals court affirms code enforcement board’s ruling in Carroll case

City’s next step may be to clarify the authority of the Code Enforcement Board

NEWS ANALYSIS

MARK SCHUMANN

“Affirmed.”

In testimony before the Code Enforcement Board John Carroll admitted renting his property at 530 Camelia Lane to tenants for stays of less than 30 days. The Board ruled the code prohibiting such short-term rental is to vague to be enforced. — In testimony before the Code Enforcement Board John Carroll admitted renting his property at 530 Camelia Lane to tenants for stays of less than 30 days. In fact, the property has been advertised for one-night stays. The Board ruled the code prohibiting such short-term rental is too vague to be enforced.

In a one-word decision rendered last week, a three-judge panel let stand the Vero Beach Code Enforcement Board’s August, 2013 ruling that former city councilwoman Tracy Carroll and her husband, John, did not violate the City’s code prohibiting short-term rentals.

Concluding the code is “vague,” the Board, in a 3-2 decision, ruled there could not have been a violation. In appealing the Board’s decision, the City’s attorney, Susan Trevarthen, argued the code is constitutional and that it is not within the scope of the Code Enforcement Board’s authority to set aside existing code or to override staff’s interpretation of that code.

The 19th Circuit Court of Appeal’s one-word ruling gives little, if any, direction on the three-judge panel’s thinking on the specific issues in the case. Trevarthen is scheduled to address the City Council next Tuesday to explain what options the City may have.

Beyond the question of the constitutionality of the City’s code prohibiting short-term rentals, at issue in the case is the City’s contention the Planning and Zoning Commission and the City Council, and not the Code Enforcement Board, are the proper venues to hear and rule on appeals to administrative interpretations of City code.

John Carroll with his attorney, Tom Tierney. Among his credentials, Carroll said he was successful working in Texas to help Wal-Mart overcome local zoning regulations. In a letter to City Attorney Wayne Coment, Tierney warned that he would, on behalf of his client, sue the City for the cost of appealing the Code Enforcement Board's decision. — John Carroll with his attorney, Tom Tierney. Among his credentials, Carroll said he was successful working in Texas to help Wal-Mart overcome local zoning regulations. In a letter to City Attorney Wayne Coment, Tierney warned that he would, on behalf of his client, sue the City for the cost of appealing the Code Enforcement Board’s decision.

The role of the Code Enforcement Board, Planning Director Tim McGarry contends, is to accept the City’s code as valid, to abide by the Planning Department’s interpretation of code, and from there to determine if the facts presented by staff are sufficient to substantiate specific citations for code violations. Essentially, the Board’s role, McGarry says, should be to rule on findings of fact and not to interpret code, and certainly not to set aside existing code as “vague.”

Because the circuit court ruling in the Carroll case does not establish a precedent, one option the City may have would be to clarify the code delineating the responsibilities of the Code Enforcement Board. From there, the City could then begin again to enforce its prohibition against short-term rentals. Though future citations may be appealed, they would have to be appealed through the Planning and Zoning Commission and then the City Council.

Another option, of course, would be to appeal the 19th Circuit Court’s ruling to the 4th District Court of Appeals. The Council may receive pressure to go this route, but an appeal would be expensive, and there is no telling what another appellate court might do that could further restrict the City’s effort to prevent Vero’s beachside neighborhoods from become a mecca for short-term rentals.

Because the circuit court’s decision does not set a precedent, its brevity and ambiguity could actually be a gift to those who want to prevent the proliferation of short-term rentals in Vero Beach. As diplomats are given to say, “For the sake of clarity, that ambiguity should remain.”