The long and the short (term) of it

I hate AirBnBs. And by that, I mean I love staying in AirBNBs (or any of the less market-sharing entities like VRBO and Expedia), offering all the comforts of a home for visitors for a short term stay of less than 30 days (short-term rentals (STRs) in planning jargon). But I hate them for what they do to the communities they enter, and what those communities have to give up to absorb them.

There was a time when I pretended that whenever I would use a STR from Austin, TX to Amsterdam that all the messy stuff was totally worked out.  On my side, I think I’m an ideal short-term tenant. I don’t drink or do drugs to excess: I’m not interested in partying in my place; I don’t stay out late, play loud music, litter, or drive a car around the area. (Great tenant, boring tourist).  On the fantasy side, I presumed that the local government (or maybe the benevolent Air BnBeeber owner) made damn sure that everyone was cool with what was going on. That all the neighbors had been contacted and signed off on the short-term use; that only housing found undesirable to locals was being used; in areas locals didn’t really care that much preserving; that any diminishment of affordable housing was taken care of by excessive donations by the platforms or at least massive taxation to augment, support and even build more.  Yeah, suspension of disbelief (and convenience) is a powerful drug to the boring tourist!

In reality, misplaced and unlimited STRs are a blight. The dangling of get-rich-quick for investors and home-owners looking to make a necessary or extra buck by turning a house into a motel; a parasitic “platform” feeding off of, but not repaying, the wonderful neighborhoods that provide attractive locales; a snatcher of properties off the market to the exclusion of entry for homeownership (and rentals) to everyday working class folks in our towns. And that’s how it works. 

The STR “platforms” are the enablers. They typically don’t get dirty with dirt (property purchases, mortgages, or leases) in the game, and try to inoculate themselves from real accountability or social responsibility. The platforms claim to merely provide the technology to pair up willing shelterists with wanting travelers– a sort of real property Tinder for quick hook-ups without dealing with the gross reality of the fallout from super bad pairings. Tinder – if the date happened on a stranger’s front lawn and a super high percentage of people involved instantly transmitted a communicable disease (of sorts) to everyone around them.  

For whatever else your view on STRs, the unavoidable truth is that the “platform” companies are the instigator and the exploiter ready to extract hundreds of millions of dollars for usage fees whether STRs are legal and taxed or not. They are typically free from the burdens of appropriate taxes, license fees or significant culpability when things go wrong. As such, STR “platforms” mostly direct their political clout to removing bans. Either way, “platforms” make a mint from Nevada without directly paying any commensurate costs for the chaos they’ve created.  

The injection of residential STRs into our real property options (versus regular old hotel/motel models for the transient resident in commercial areas), has pitted investors and realtors and desperate homeowners against neighborhoods, neighbors and government officials (mostly, but not only, police and code enforcement entities) tasked with keeping order.  Meanwhile, as these battles rage and rage, the “platforms” sit back as STRs proliferate (legally and illegally) and count their crypto currency (does anyone picture these tech vultures counting actual paper currency)?

When STRs first reared themselves en masse in the Las Vegas Valley (though they proliferate throughout the state), every municipality took a slightly different stance. Some, seeing an inevitability of this model, did very little. Unincorporated Clark County (the largest population center in the State) effected an outright ban. Cities like Las Vegas embarked on a wonky, in-between, hit-and-miss approach through traditional land-use mechanisms and began granting limited SUPs (special use permits) for qualifying properties. Soon, the neighborhoods most impacted by the proliferation of STRs started rallying around the obvious problems of people coming and going without any ties or knowledge of a neighborhood and its unique nature: increased noise and sporadic violence tied to Vegas-tourist levels of partying; more traffic especially troubling in the early morning hours around elementary schools that visitors are likely unaware of; noticeable surges in garbage overflowing bins if it even makes it that far; and in the worst cases, belligerent visitors (the non-boring sort) taking issue with the residents for slights and offenses real and imagined. 

When it became clear to the City of Las Vegas leaders that an outright ban, no matter how compelling for community interests, would be untenable unless the platforms refused to advertise illegal offerings - and the greedy platforms wouldn’t do that without a fight the City had no stomach for - the decision was made to work with the neighbors to come up with a workable compromise. That’s where I first came into the world and reality of STRs.  

THERE’S A REALLY BIG SHORT TERM RENTAL DIRECTLY ACROSS THE STREET FROM ME

Living (as I do) across from a five-bedroom, five-bathroom, short-term rental is a wild ride. There have been major issues (especially in the beginning) but luckily the owner is a neighbor I’ve known for a long time prior to the conversion and we were able to thoughtfully work out compromises and solutions. This is not a mandated approach and we all got lucky.  Other neighbors are not as fortunate and many are frustrated because it’s not a neighbor/entrepreneur across the way to talk to, but faceless, corporate investors who saw an opportunity to motel-ize and monetize quiet neighborhoods.

And so with the rules in the City of Las Vegas needing to be tweaked, the neighborhoods engaged; everyone got to work on a statutory structure of local ordinances that worked through every one’s concerns. Measures given both to those who feel a private residence can do what they want and those who simply want the quiet enjoyment and stability of having longer term owners and renters to help foster a community of shared values, objectives, and a network of people looking out for each other.

The Las Vegas neighborhoods worked very hard to be reasonable, rational and productive in helping the city achieve its goal of a workable STR ordinance. The process took a long time. Years. Countless meetings and hearings (sometimes til the wee hours of the next day’s AM at the planning commission) to work through it. But ultimately as the ultimate stakeholders in the change of composition of neighborhoods, we felt heard and respected. Distance requirements, maximum occupancy, accessibility of owner, owner-occupancy rules and many more requirements were put into place and currently exist. In sum, they keep the blatant challenges of even having STRs more tolerable even as more meant enforcement challenges. We even got people thinking about how STRs ultimately diminish thoughtful, progressive approaches to housing without better regulation and taxing structures on the STR owners AND the “platforms.”

Indeed, more than most issues that affect neighborhoods, our involvement as organized neighbors engaged in the STR discussion not only raised the profile of some of the downtown neighborhood associations (NOT the same as HOAs which don’t typically have to suffer STRs because of their own internal and enforceable rules), but galvanized the de facto collective. We worked with our government, they worked with us, and we all found a system that afforded some degree of stability, flexibility and even some revenue (though most of it goes to enforcement) for the city. While many of us still wished for a more comprehensive approach akin to more buffers around vulnerable areas like elementary school and child care facilities, more funding and tools for enforcing the rules and more direct responsibilities on investors and platforms to directly fund the affordable housing they rob from our woefully taxed communities, we understood that through a responsive, traditional land-use approach that municipalities adopt - we could at least be certain that all our interests would be considered.

WHAT IS THE STATE DOING?

So as mentioned I don’t like how STRs and their enabling platforms exploit communities and undo the peaceful and harmonious character of many neighborhoods. I also understand that the proliferation of bad actors who do them anyway without having to contribute much of anything back to the neighborhoods they exploit suggests that a regulatory scheme in every municipality is inevitable. If they’re going to exist anyway, the argument goes, we should tax and regulate them. Our coalition of downtown neighbors proved that we can work within this paradigm of inevitability. Indeed, the city knows that any changes to the STR ordinances will be met with thoughtful input of real-life consequences and the benefit of institutional knowledge of all the issues, tensions and considerations. I have come to realize that, as a homeowner vested in my neighborhood’s success, there can be well-considered ways to tax and regulate a limited incursion of STRs. As did Las Vegas, Henderson and North Las Vegas, which also worked with their residents to come up with STR-oriented tax and regulate ordinances. 

Unincorporated Clark County, however, has been sticking with an outright ban, and that apparently was the main impetus of some legislators to create a bill to ban any bans. When AB363 dropped (and it dropped remarkably late in the session - causing almost immediate and vast overhaul with conceptual amendments, conceptual amendments to the conceptual amendments, unfinished mock ups and work session promises), it was announced as an effort to bring statewide standards to STRs, tax and regulate all the illegal operators, and somehow create more affordable housing despite the overwhelming evidence that more STRs do the opposite.  Indeed, since Nevada is actually suffering the worst affordable housing crisis in the country for a while now, the whole push by the state became a head-scratcher.  It also came without any notice or participation of neighborhoods like mine that had been so instrumental in working these issues out in prior years. 

The timing therefore, suspect, the drivers somewhat unknown, and the unforgivable proclamation by the sponsors that “stakeholders” had been at the table to draft AB363 for a year-and-a-half galvanized the City of Las Vegas neighbors into a rapid scramble of catch-up. What stakeholder meetings could exclude the people with actual homestead stakes who actually have been through this process before?  

Thus, excluded we injected ourselves using many of the activist tools we used before to reach out and get our message into the right place. Luckily we did.  In the end, AB363 squeaked out of the Assembly with a still seemingly unfinished piece of legislation that had gotten very dark, oppressive and damaging before it got (mostly) tolerable. Yet, whether this story becomes a cautionary tale about the critically flawed process of bill making, the fundamental error about leaving out bonafide, impacted citizens, or the lack of vision of our state in ever passing comprehensively good legislation will undoubtedly be shaped by your view on STRs.  That said, AB363 is a very typical mess that seeks to solve a perceived problem in the least effective way.

First off, those state standards touted in the first draft quickly revealed themselves to be a targeted effort and only include Clark County. Presumably, the sponsors needed support from Northern Nevada and the rurals to get the legislation through and while those areas are understandably hesitant to allow the state to tinker with local land-use policy, there’s little hesitancy against sticking to Clark County.  Next, the original bill and subsequent versions failed to protect the cities within Clark County that had already passed ordinances and this is where the quick acting citizens otherwise excluded exerted our strongest influence along with allies in the municipalities and even the Culinary Union (whose members are also are our neighbors) clearly wanted to make sure that thoughtful existing ordinances and affordable housing stock weren’t negatively impacted.  On that last point, most versions of this ever-changing bill were off the charts in diminishing housing stock for actual residents - and so in the latest iteration protections for the cities and significant lowering of available stock for STRs was implemented.  And finally, requiring the “platforms” to provide necessary data to help enforcement and keeping bad actors out of the marketplace, even as the bill still doesn’t address the rise in cost of enforcement or how that can be done against savvy, though sometimes unscrupulous STR owners who have been cagey to date. It is some degree of accountability.

And because it’s Nevada, Jake, the special protections for the gaming industry (including affording gaming properties a 2,500 buffer where no STR but their own can be built) never got discussed in any committee and never were explained. Indeed, you’d think it would be hard to explain why a casino needs a buffer, but not say a place where small children cross early morning streets to go to school, but, yeah. 

Perhaps, most importantly, is how this whole endeavor is an example of yet another subject circling around the giant issue of housing in our communities. Whether it's STRs (a biggie with neighborhood advocates), or tenant rights or our affordable housing crisis or homelessness or recognizing that the lack of housing security is one of the biggest drivers of almost all other societal ills. And while we have the privilege of getting our voices heard, sometimes it's hard to see it all go down without the voices of the vulnerable in the mix. I hope that our elected officials realize that they need to take a wider view, and now. The fact that this STR bill is even still alive when virtually every effort to tackle affordable housing died, every serious long-lasting tenant rights bill was watered down or ignored and homelessness barely was mentioned this session is reflective of a much bigger problem with...well all of it. 

So AB363 moves forward, ostensibly without the support of the AirBnB and Realtor crowd, even though they still benefit. While they may have wanted all the bad stuff that remained in the bill for way too long before we got involved - again, any end of the unincorporated Clark County ban gives them more revenue and that’s always their endgame. For the neighbors on the other hand, our endgame is that the games never end and that we need to remain vigilant as we will with the application of this bill and any others that directly affect us, our neighbors and our communities. 

Appreciating that someone really wanted STRs to be legal in unincorporated Clark County (and that position has its justifications), it’s astounding that this session of our Legislature as others before it seems to refuse to take comprehensive approaches to any of the big issues that plague our state with horrific statistics and even more devastating impact on our citizens. That citizens are relegated to catch-up and expected to be clever enough (as we were this time) to engage the conversation on our terms is a sad commentary on what are the tenets of democracy we purport to hold dear.  That the whole thing over and over again seems to be an intentionally oblique and opaque process designed to simply exhaust us before it's over, or exclude us based on arcane rules.  

This time we prevailed to the extent we ever thought we could. Do we wish that the STR talk was not only part of bigger “housing” discourse and that our involvement was strategically activated by us once we learned of the legislation? Absolutely and to which I can only utter the evergreen statement that could be Nevada’s newest motto: “That was a lost opportunity.”

Dayvid Figler is a criminal defense attorney based in Las Vegas. He previously served as an associate attorney representing indigent defendants charged with murder for the Clark County Special Public Defender’s office. During his legal tenure, he served a brief appointment as a Las Vegas Municipal Court judge. Figler has been cited as a noted legal expert in many places including the New York Times, National Public Radio, Newsweek, USA Today, Court TV and the Los Angeles Times. His award-winning radio essays have appeared on KNPR as well as on NPR’s All Things Considered program.