HomeMy WebLinkAboutMemo - Mail Packet - 2/7/2017 - Email From Paul Eckman Re: Short Term Primary RentalsFrom: Paul Eckman <walteckman@live.com>
Date: Wednesday, February 1, 2017 at 8:41 PM
To: Wade Troxell <WTroxell@fcgov.com>, Gerry Horak <ghorak@fcgov.com>, Darin Atteberry
<DATTEBERRY@fcgov.com>, Carrie Daggett <CDAGGETT@fcgov.com>, Ginny Sawyer
<GSawyer@fcgov.com>
Subject: Short term primary rentals
On March 7, 2017, the City Council will consider on first reading an ordinance amending the Land Use
Code for the purpose of regulating short term primary rentals. As originally conceived, the ordinance
had no legal infirmities. However, as it has now evolved, it works a regulatory taking that cannot pass
constitutional muster. And, there is one reason why.
That reason is that the later version of the ordinance prohibits short term primary rentals in the RL zone
district. This absolute ban in the RL zone fails to advance any legitimate governmental interest utilizing
the least restrictive means possible.
To be sure, there are legitimate governmental interests in regulating short term primary rentals. Public
health and safety concerns are addressed through the licensing and building inspection
requirements. Public welfare and compatibility requirements are addressed through the minimum off-
street parking requirements and through the requirement that the building be owner-occupied at all
times of rental operation. A regulation of signage could also promote compatibility.
Allowing folks to operate short term rentals promotes the City’s affordable housing goals by making a
way for seniors to continue to be able to afford to live in their homes.
If the Council is concerned about rowdiness or unruly behavior, that issue can be best addressed by
requiring owner occupancy of the primary rental. If the Council is concerned about general
compatibility, that issue can be addressed by limiting the number of bedrooms available for rent to, say,
4 or 5 or 6. My personal thought is that in the RL zone, such a limitation on the number of bedrooms
would serve well to advance the governmental interest in compatibility and preservation of
neighborhood character. But a total ban goes too far, as Mr. Justice Homes declared in the landmark
takings case of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).
A governmental regulation that fails to advance a legitimate government interest by the least restrictive
means possible can become a “per se” taking of property. And, even if not “per se,” such a regulation
can fail to pass muster under the 5th Amendment of the U. S. Constitution under the “categorical taking
analysis” of Penn Central Transportation Company v. New York City, 438 U.S. 104 (1978).
The Penn Central criteria requires the Council (and in litigation, the Court) to look at, among other
things, the character of the Council’s action. In this case, the character of your proposed action is,
apparently, to try to promote the Council’s interest in compatibility and neighborhood character by
imposing a total ban even though a bedroom restriction would have sufficed. Even though a sign
restriction would have sufficed. Even though an owner occupancy requirement would have sufficed.
How is it necessary to impose a total ban on short term primary rentals in the RL zone in order to
preserve compatibility when folks can put guests up in their homes for nights on end for free? When
folks can have a weekly Bible study for 20 people, or a weekly card party for 20 people or a political
February 2, 2017
TO: City Councilmembers
FYI /sek
caucus, or a wine tasting party, or a book club meeting? It does not make sense, and it does not
comport with the case law on regulatory takings.
Why does government have this compulsion to regulate too much, to go too far, whether in imposing
broad-brush bans on immigration or imposing broad-brush bans on short term primary rentals? Why
not utilize the least restrictive means possible, as the Courts require? Can someone on the Council
answer that?
Please circulate this email to the full City Council and appropriate staff.
Sincerely, W. Paul Eckman
Sent from Mail for Windows 10