658 COMPETITION LAW IN TOURISM (they must always be proportional and duly justified restrictions); determination of a maximum number of tourist places (tourist accommodation and tourist stays in housing) to face the great pressure on the territory and the environment; and the delimitation of different types of zones through the zoning tool. In this sense, different cities are resorting to zoning as a mechanism to keep under control the phenomenon of housing for tourist use, foreseeing the following: saturated areas where radical measures are adopted such asmoratoriums or the prohibition of new destinations for housing for that purpose; and areas of high demand where the possibilities of allocating housing for tourist use are restrictively regulated. For example, the Ordinance of San Sebastian that introduces limits regarding the possible location in the building (ground floor or high) and size (in square meters) that use may have allocated within it11. The use of zoning and urban qualification has been negatively assessed by the National Commission of Markets and Competition. Thus, this entity alleges that the VUT, as its name suggests, would be a home intended for a residence, notwithstanding that the home (or part of it) may be subject to temporary assignment, therefore, the cession of houses for tourist use must be compatible with a residential qualification floor, not being able to be required to qualify as a tertiary land to make the aforementioned cession. However, in our view, this approach would be, at least, debatable because if what is intended for residential homes is a professional and usual tourist activity, it is reasonable that a change in use can be considered (since the housing would be dedicated to a professional economic activity: the provision of tourist services), therefore, it seems reasonable that in these cases the authority is subject to convenient restrictions from the perspective of the configuration of the city and the balance of uses in the neighbourhoods. What is not as logical is that a non-professional seasonal rental activity carried out by small owners of their first or second residence is subject to these same restrictions or limitations. All this is a consequence of the absence of an adequate delimitation of both rental activities, the one undertaken per season and the professionalized provision of tourist accommodation services. 11 Municipal ordinance regulating the use of tourist housing and renting rooms in a habitual residence for tourist use, Official Gazette of Gipuzkua, 26 March 2018.
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