Rachel Smith with her granddaughter in front of her historic home
  • Rachel Smith with her granddaughter in front of her historic home
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NightmAirbnb in Burlingame

Rachel Smith takes us on a tour of her historic home in the Burlingame neighborhood of San Diego and discusses her neighbors' and the city's complaints about her legal use of the property as an Airbnb host.

Rachel Smith takes us on a tour of her historic home in the Burlingame neighborhood of San Diego and discusses her neighbors' and the city's complaints about her legal use of the property as an Airbnb host.

Rachel Smith purchased her Burlingame home in 2007 after receiving an inheritance. The 70-year-old retired high school teacher fell in love with the five-bedroom three-bath, 2996-square-foot historical Craftsman home built in 1912. It was more room than she and her daughter and her granddaughter needed.

In 2013, Smith extended the invitation to travelers wanting to stay in one of America’s hippest and one of San Diego’s oldest communities. She logged on to Airbnb.com and offered two of her five rooms to a family or out-of-towners looking for a place to stay. Her daughter Alexis helped navigate the website and learn the rules, regulations, and tax requirements.

“I bought this house for my family to enjoy and to entertain friends. But I still had these extra rooms. I thought how fun this house, this community, would be for families to come and enjoy. I guess I’m a dying breed, but I wanted to share this beautiful home with others, whether they be friends, my family, or people traveling.”

Smith decided on charging guests $80 a night, with the option of adding the additional room for kids or other members of their party for an additional $20. Guests had their own restroom, unfettered access to the downstairs kitchen, laundry room, backyard garden, and seats under the pergola. Kids had open invitations to play in the custom sandbox.

During the first year, in 2013, Smith had 16 AirBnB visitors. July was by far the busiest month with five groups of guests. In 2014, Smith had 28 guests. Guests typically stayed for two nights, however, on a few occasions, some rented the room for the entire month.

She hosted dinner parties for friends and family regardless of whether there were guests or not.

Smith’s open-door policy as well as her popularity on AirBnB soon drew ire from her Burlingame neighbors. They posted notes on cars parked in front of their houses, regardless of whether the car was owned by Smith’s family, friends, or guests.

Smith tried to accommodate the neighbors. She directed her friends and family to park elsewhere along Kalmia Street. She told the occasional guest to park on her driveway.

Tension with neighbors worsened. The notes turned to agenda items for the Burlingame Community Association to discuss. Complaints then flooded the city’s Code Enforcement department as well as to District Three representative Todd Gloria’s office. The complaints were complete with photos of parked cars and out-of-state license plates. Also included were pictures of people entering Smith’s house towing luggage behind them.

“As a private resident and member of a historical neighborhood, we continue to seek guidance and direction from the city about next steps we can take in regard to our options and rights to eliminate this potential threat to our neighborhood at large,” some of Smith’s neighbors wrote in a July 14, 2014, letter to the city’s Code Enforcement department. “It is not unusual to have several groups check in and out over the weekend, often two people per bedroom. Although there isn’t a noise problem we are concerned about security as there is a constant flow of strangers on the property.”

It didn’t take long for the city to get involved. On July 31, 2014, Smith received a “civil penalty notice” in the mail. “You are hereby notified that the property is in violation of the San Diego Municipal Code and you are subject to civil penalties…. Civil penalties for violations of the Municipal Code may be assessed at a daily rate not to exceed $2,500 per day per violation; not to exceed a total maximum of $250,000 per parcel or structure for any related series of violation(s).”

The city’s notice listed three violations. The first stated Smith was operating a “bed and breakfast establishment” without obtaining a neighborhood use permit. The second infraction accused her of blocking her driveway with a permanent barrier — previous owners had torn up the portion of the driveway along the side of the house to be used as a sitting area, leaving a 20-foot portion in front of the house. Lastly, the city dinged Smith for the graffiti that someone had sprayed on the concrete wall facing the alley.

Smith responded in an August 6 letter to land-development investigator Victor Nunez.

“I believe the allegations against me are unfounded and motivated by neighbors that erroneously feel entitled to intimidate me through frivolous complaints. I endeavor to be a good neighbor and good citizen; however, I am entitled to enjoy my property within the bounds of the law. I believe that I am doing just that.”

Meanwhile, Smith exchanged emails with Luis Carrillo, a business tax representative in the Office of the City Treasurer. On August 6, Carrillo, who said “I really love that website” — airbnb.com — “by the way,” explained that Smith need only pay rental tax, not transient occupancy tax because the house was considered “owner occupied.” He went on to offer, “Also for your friends and neighbors that are, will, or thinking about doing the same or similar thing, just have them email me with the number of rooms and address and we’ll get them set up.”

But down the hall at City Hall, Nunez and the Code Enforcement department weren’t backing down. By October 2014, Smith removed her profile on AirBnB and stopped renting out the extra rooms.

Bed, no breakfast

Keeping up with online home sharing websites such as AirBnB, VRBO, and Homeaway will continue to pose problems for the City of San Diego, especially if it continues to depend on old zoning laws to enforce current trends.

Take the claim that Smith was running a bed-and-breakfast, for example. According to the city’s own zoning laws, “bed and breakfast establishments are visitor accommodations within a residential structure where breakfast is typically provided for guests.”

Smith did not promise her guests breakfast, nor do any Airbnb hosts.

The language raises questions for Smith’s attorney and fellow AirBnB “host,” Omar Passons. “At a minimum, you’d think at least occasionally someone would need to serve food to be considered a bed-and-breakfast.”

There are other issues, says Passons.

“The state constitution requires that, at a minimum, a law must be clear enough for people to know what conduct is prohibited. The language describing a commercial bed-and-breakfast is more than a little vague.... It seems the Code Enforcement department realized it didn’t have a specific code section that fit, so rather than create one for AirBnB and other sharing economy sites, it is just trying to make this new round peg fit in a very old, square hole....

“Every person who rents out a room in their single-family home or lets someone rent their place while they are out of town should be very concerned about this precedent.”

However, instead of working with Smith to mitigate any impacts to her neighbors while the city looks into addressing home sharing, the Code Enforcement department has decided to stick to their guns and has scheduled an administrative hearing on March 5 to decide how much in fines Smith will be forced to pay. As part of the hearing, the city is using the dossier-like complaints from her neighbors as evidence.

“My client received over 200 pages of documents [which] let her know her neighbors had been taking pictures of her friends and family and that she could be subject to hundreds of thousands of dollars of fines for something that thousands of San Diegans are doing,” says Passons.

“Those neighbors mistakenly believed the photos were all Airbnb guests. It seems invasive. That neighbors can exert this much influence over another without even so much as a courtesy conversation is frightening.”

Some hosts believe the city is trying to crack down on home-sharing or at the very least, bowing down to pressure from needy neighbors.

“The guests are all vetted. The hosts are as well. If I were a real bed-and-breakfast, I’d have to accept anyone off the street. No, thanks,” says one host who wishes to stay anonymous for fear of retribution.

“Who are we hurting? If the neighbors really have issues with noise, parking, or trash, then there should be police reports filed. Then real infractions would be documented, not just a group of neighbors running to the city with complaints and Code Enforcement trying to find ordinances that apply to make them happy.” And yet, while the city applies archaic zoning laws to home-sharing websites, it has been proactive in ensuring that tourism taxes are paid.

In that regard, Smith followed the law. Since learning the tax requirements, she has paid a total of $421.80 taxes. There have been reports that city officials are demanding that hosts pay fines for not paying taxes. This despite, as in Smith’s case, running an Airbnb is in violation of the city’s municipal code.

Sitting at a large wooden table inside her Burlingame home, Smith remains surprised by her neighbors’ response as well as the city’s way of handling the matter.

“I live in a historic home and can’t imagine a more authentic experience for a traveller than to stay here and be part of the history. Why should people have to experience San Diego alone in a hotel room with a guidebook and Yelp, when they can have an actual person who loves their city?

“The sharing community is undeniably a mutually beneficial arrangement: I benefit from meeting new people, making new friends, and enjoying my home through their experiences. Most of all, I find pleasure in sharing my knowledge of the city, not to mention, my beach chairs, towels, and sunscreen.”

The city and council are currently grappling with the issue. Since a council committee heard several hours of testimony by AirBnB operators and users in support of the rental sharing website and the right to rent a room as a way to earn extra money. The city and its top attorney however, seem to be headed in a different direction. The city attorney has tried to steer away from a 2007 memo from former city attorney Michael Aguirre that concluded, “there are currently neither regulations nor prohibitions on short-term vacation rentals in single family residential zones in the City of San Diego.”

City attorney Jan Goldsmith says his predecessor was discussing renting out entire homes in residential areas, not rooms. That leaves in limbo over 1600 property owners who rent out rooms on a nightly basis. Until there is a policy, property owners such as Smith remain at risk of being fined tens, maybe hundreds of thousands of dollars.

“This case,” Passons says, “isn’t about noise or nuisance or the problems in other parts of the city with party houses, because none of that happened in my client’s home. The city’s position is that since no law actually exists for Airbnb, this commercial bed-and-breakfast law is ‘close enough.’ In this country, we don’t hit people with $250,000 in civil penalties for ‘close enough.’”

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Comments

jnojr May 6, 2015 @ 12:11 p.m.

Let's pretend for a moment that she was not on AirBNB, and that she just had a lot of friends who loved to drive up in their cars with out-of-state plates, park on the PUBLIC street, and walk in with their luggage behind them. Would the neighbors still be upset? Would they still complain? Would any city agency take any action?

This is what drives me berserk about the whole dumb AirBNB whining situation. These people studiously ignore what any rational person would say is the problem (loud parties, etc. which are already illegal and for which there are already remedies) to focus on what is NOT the problem (the fact that people are making money).

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Twister May 6, 2015 @ 5:39 p.m.

San Diego is becoming one big HOA.

When you really think about what freedom is, the inescapable conclusion is that we already have very little of it. If you can afford it, you can "own" a little patch you can call your own--if you can pay the taxes . . . Otherwise, you can "be" on the sidewalk IF no one calls the cops.

Don't park anything resembling a gypsy wagon on the street overnight . . . The list goes on and on . . .

https://www.youtube.com/watch?v=RZH2bmbUTl4

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Dryw Keltz May 7, 2015 @ 4:58 p.m.

"San Diego is becoming one big HOA."

Now that is a statement of truth. If you want to live in a neighborhood with minimal out-of-state plates, annoying parking regulations, tons of rules regarding visitation, and a gazillion other nit-picky by-laws designed for perfect conformity just move to one of the many gated-communities in the area. You will absolutely love it! Their HOA rules and regulations will fit your agenda perfectly. The HOA fees...perhaps not so much.

In short, this isn't Animal House in the middle of a retirement community. This is occasional visitors with out-of-state plates, who, for whatever reason, are just too much for the neighbors to handle.

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AlexClarke May 7, 2015 @ 6:10 a.m.

She seems to have a lot of 'guests' and that seems to annoy her neighbors. They complain of people with luggage and cars with out-of-state plates but I did not hear that they were complaining of noise, drunken parties, etc. I suspect that the people she rents to are upscale or just plain nice folks. Sure glad I don't live in that neighborhood.

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nostalgic May 7, 2015 @ 6:54 a.m.

This problem will solve itself. Pretty soon all of the neighborhood will be vacation rentals, and they will complain about residents who take up parking. See Mission Beach for details.

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rosijoni May 7, 2015 @ 9:56 p.m.

So true. Mission Beach is done. Next will be Pacific Beach. The writing's on the wall. Who will fall next? South Park? North Park? Bay Park?

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Bluejeans99 May 7, 2015 @ 7:55 a.m.

Next time you are looking for a house or apartment to rent or share and can't find anything at a reasonable price, you can thank people like this who choose to rent to tourists because they can make four or five times as much money that way. You can also thank people like this when your taxes go up to pay for city-financed affordable housing. People who rent short term to tourists are the McDonalds and Walmart of landlords - they make all the profit while the rest of us subsidize their businesses by paying for housing for those who have been priced out of the market.

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rosijoni May 7, 2015 @ 10 p.m.

Love your comment! The house next door to us was a rental for the first 9 years we lived here. Then the owner found out how much money he could make renting as a "vacation rental". Does he live there? No. He took a whole house rental off the rental market, and a studio apartment (probably not even permitted) off the market, and rents them out at $300 per night and $125 per night. There goes 2 possible solutions to the housing shortage in San Diego.

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mwkingsandiego May 7, 2015 @ 8:52 a.m.

This is terrible, one-sided, "muck raking' reporting - I expect better from The Reader. This general problem is a modern day tragedy of the commons as residents, real estate investors, and big-money corporations "share" our communities by monetizing the peace, quiet, and charm and export the value to outsiders.

Did you talk to any of the neighbors to get their side? Doesn't look like it. There are people just as charming all around Ms. Smith that have other views.

Did you talk to the "community association"? Nope, I'm pretty sure you didn't do that.

Did you talk to the City Attorney to get their view of the legal issues, instead of just quoting Mr Passons' clearly self-serving comments? Apparently not.

Outside of the B&B section, Codes say "visitor accommodations" are a commercial activity explicitly not permitted in an RS zone, such as Burlingame, so if Ms Smith isn't operating a B&B, then she is taking money (commercial) for "visitor accommodations." Did you look at that?

BTW, "breakfast is typically provided" does not mean "always" - did you check your Webster's, or just use Mr Passons' material?

However, I do agree that the City has a problem with language in several sections of the City codes. That they have whistled past this graveyard since the 2007 memo - 8 years - is deplorable.

Did you look into how this general activity reduces the affordable housing stock for San Diego residents? Doesn't seem so.

How about if The Reader ups their game on this and does some balanced reporting?

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rosijoni May 7, 2015 @ 4:13 p.m.

GREAT response! This was a totally one-sided article. Let's hear it for the neighbors. I'm not a Burlingame resident, but I do live next door to a "vacation rental" in a single-family residential neighborhood, and believe me, it is no fun.

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showell May 7, 2015 @ 6:55 p.m.

Full disclaimer: I sympathize with the airbnb host in the article--she seems nice-- and I am an airbnb guest/host myself.

I invite the other side to make their argument in full public. Have the nosy neighbors complain publicly about people parking publicly on public streets. Let's attach a name to their beefs.

Tourists are going to come to San Diego. Do we want to quarantine them to downtown tourist traps or embrace them as fellow temporary citizens in our community? You decide whether or not you want to be a nice person.

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rosijoni May 7, 2015 @ 9:40 p.m.

So, it sounds like you think anyone who does not like or agree with the concept of AirBnB is NOT a nice person? Because they want to live in a neighborhood, not a commercial zone? Tell me. Do YOU live next door to a hotel? Do YOU have different cars slamming their doors at all kinds of crazy hours 5 ft. from your windows, with nary a care in the world because they'll be here for 2 or 3 nights and then check out and go back to their cozy neighborhoods which really ARE neighborhoods? San Diego has got to take this tiger by its tale and set rules and regulations on this. You need look no further than Mission Beach to see the consequences of this unchecked. No schools. No neighborhoods, periods. Pacific Beach will be next. Is that all right with you?

By the way, I do not live in Burlingame. But I do have a "vacation rental" next door to me. We have had a bachelorette party, a wedding party of 17 people for one week in a house with 2 bedrooms and 2 bathrooms. Street parking is not such a huge issue as we ARE a single family residential area and there is usually plenty of street parking. So - I repeat - does this describe where YOU live? If not, don't prejudge those who don't want this next door to them.

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showell May 8, 2015 @ 3:59 a.m.

I don't understand your Mission Beach argument. It's a beach. That's where tourists want to go. Very few people can afford to live by the beach year round, so they save up money and rent a beach spot once a year. This has nothing to do with airbnb. Beach towns have had commercial pressures since the beginning of time.

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Hereismycommnet May 8, 2015 @ 6:09 p.m.

Yes, quarantine them to downtown or mission valley....let them spend a few dollars at Sea World, the Zoo and the Gaslamp, swim at the beach and then move on!

Neighborhoods do not belong to tourists. Period! Tourists should "be nice" and stay out out of residential areas unless they want to become a full-time member of the community and pay taxes, pay to for the high cost of living here and keep any eye out for intruders that are a danger.

To Ms. Smith you should not have bought a house that was too big for your needs or that you could not afford and shame on your for being disrespectful of your neighbors.

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szip May 11, 2015 @ 11:24 p.m.

My neighborhood's by the beach. Should I tell the tourists to stay away? I'm sure all the local cafes, restaurants and stores would be glad to finally be rid of these horrid visitors and their annoying habit of spending money and, you know, enjoying my beach.

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Founder May 7, 2015 @ 10 a.m.

☆ BURLINGAME DENSITY KARMA ☆

This is the ULTIMATE NIMBY story, since there are those that live in Burlingame that happily push DENSITY upon the rest of North Park while wanting to keep any and all DENSITY away from where they live. Can anyone reading this story imagine the impact of having people parking on your street that don't reside there! I wonder what everyone will think when the word gets out that Burlingame has plenty of free safe street parking that is also just a cheap taxi ride away from the Airport. Now that more drivers also carry bicycles, expect to see neighborhoods, like Burlingame, that have traditionally been sheltered from commuter traffic to become on street parking lots, so those that do commute can park for free and then use their bicycles for their "last mile" of commuting, which has already been happening in other parts of North Park. Up to now, Burlingame has been sheltered physically by its nearby canyons and politically by their wealthy residents influence both in Council District 3 and City Hall (as the above article illustrates) but now as Bob Dylan sang a long time ago, "The times they are a changing".

If DENSITY is being shoved down the throats of North Park residents by the North Park Planning Committee (whose Chair just happens to live in Burlingame), why should Burlingame residents be spared, since it too is so very close to Downtown and it is located along a major bus route which perfectly describes a "Transportation Corridor" (a Planning Dept. buzz word that is being used to push ever more DENSITY upon North Park) PLUS it has plenty of safe FREE on street parking that is most attractive to commuters looking to avoid having to park downtown and/or pay outrageous monthly fees.

Perhaps MTS will construct a new deluxe bus stop on 30th street so that all those that want to commute from Burlingame, without using a bicycle, can wait to be picked up in the style they are accustomed!

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showell May 7, 2015 @ 6:01 p.m.

I've been both an airbnb guest and an airbnb host. As a guest, it's been amazing.

As a host this is what we do. We take the booking. We vacuum, clean the kitchen, spray for ants, make the beds, etc. We welcome the guests, whether they're from as close as LA or as far away as Korea and Germany. As much as we entice the guests to stay at home and be comfortable in our house, the first thing on their mind is to go out and spend all their money on local businesses. We don't stop them. They come back to the house, and maybe they interact with us, which we love, or maybe they don't, which is their choice. They might be from Seattle or Shanghai or Frankfurt or Denver or the Midwest--we get it. Two days later they leave and they tell all their friends how amazingly cool San Diego is and you must visit and spend mucho dollars here.

A couple days later we check our bank account. With the newfound money we take a ski trip to the Alps enjoying caviar on the whole flight over. Kidding! If we're lucky we get a couple hundred bucks to defray the cost of living. Guess where we spend it? LOS ANGELES, BABY!!! Kidding again. We spend it in San Diego giving money to local businesses.

As airbnb hosts, we look forward to the day that we can give some of our revenue away to the city to help them finally build a football stadium that will attract the NFL and get it out of its unfairly impoverished state. Kidding again. Seriously if we can just tax and fee the hell out of all 1600 airbnb hosts in San Diego, maybe we can fix the roads and end homelessness forever. Kidding again! Sorry kids, I kid!

San Diego is famous for more than nice weather and amazing beaches and pretty deserts nearby. People are generally nice, and parking spaces be damned, the word has gotten out that this is a nice place to stay a couple days. Support airbnb hosts because they are ambassadors to a great city. Support the Chargers because you should, but don't do it financially, do it with good vibes, because that's all that matters in the end.

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Ponzi May 11, 2015 @ 11:15 a.m.

These "new economy" renting of residential properties change the character of neighborhoods. I feel that is what is irritating to the neighbors. Sure you may have a right to rent out rooms, but is it fair to the neighbors?

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Twister May 21, 2015 @ 6:07 p.m.

“Whenever you find yourself on the side of the majority, it is time to pause and reflect.” ― Mark Twain

“The government is merely a servant―merely a temporary servant; it cannot be its prerogative to determine what is right and what is wrong, and decide who is a patriot and who isn't. Its function is to obey orders, not originate them.” --Mark Twain

“Patriotism is supporting your country all the time and your government when it deserves it.” --Mark Twain

“No man's life, liberty, or property are safe while the legislature is in session.” --Mark Twain

“In religion and politics people’s beliefs and convictions are in almost every case gotten at second-hand, and without examination, from authorities who have not themselves examined the questions at issue but have taken them at second-hand from other non-examiners, whose opinions about them were not worth a brass farthing.” --Mark Twain

“Be respectful to your superiors, if you have any.” --Mark Twain

"The worst kind of ignorance ain't so much not knowin' as 'tis knowin' so much that ain't so." --Henry Wheeler Shaw (Josh Billings)

The 20th century gave us Will Rogers, and the 21st has given us Jon Stewart--a different kind of animal, of course, but in the honorable tradition of holding up a mirror to our self-portraits to reveal our acne-ridden souls . . . still we shall overcome. Unless we keep smashing mirrors.

I have no idea how much Samuel Clemens owes to Henry Wheeler Shaw, nor for that matter how much Shaw and Wilde owe to them both. Or how much Rogers and Stewart owe to them all. Frankly, I don't really give a damn how much plagiarism has been committed.

Can (hu)man live by aphorism alone?

It will be interesting to see how relevances are perceived, and how pivotal this seemingly "minor" case, at root, really is.

The mirror! The MIRROR!

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Twister May 21, 2015 @ 8:02 p.m.

Correction: Int the fourth from last paragraph, the reference to "Shaw and Wilde" refers to George Bernard Shaw and Oscar Wilde.

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