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City attorney: short‑term rental policy can proceed case‑by‑case via planned development, but risk of preemption exists
Summary
The city attorney told commissioners the plain reading of state law suggests Daytona Beach can add vacation rentals to certain base zoning districts, but uncertainty remains and an attorney general opinion is unlikely to be more definitive; the safer route is to allow vacation rentals case‑by‑case through grandfathered planned development agreements.
The city attorney briefed the commission on May 6 about whether state law preempts local rules that would allow vacation rentals in zoning districts where they are currently not permitted. The attorney’s short answer: the city is "probably not preempted," but there is no definitive Florida case law resolving the question and an attorney general opinion is unlikely to be determinative.
The office recommended a cautious, case‑by‑case approach using plan development (PD) agreements that are grandfathered from the June 1, 2011 preemption date. "Any property owner in the city has the ability to seek a plan development agreement" to allow otherwise prohibited uses, the attorney said, and that route avoids broad ordinance changes that could be challenged as preempted.
Commissioners debated whether the commission should identify a geographic core where it would entertain PD requests; the attorney cautioned that creating a geographic rule limited to a single area could run afoul of the attorney general’s prior opinion on overlays. Mayor Derek Henry said he favors identifying an area to promote Main Street and beachside revitalization, while others emphasized that any PD process must protect neighborhood character and respect HOA restrictions.
The commission directed staff to consider a PD‑based approach and to bring back draft PD procedures and policy options for the commission to review within roughly 60 days.
