Dark clouds of regulation hang over property rights among Chattanoogans. (Photo Sandy Battles Keller Williams Realty)
On Tuesday Chattanooga city council seems ready to vote for a plan that defeats the optimism and forward-thinking in the Gig City concept in the city for the past decade. Council members seem not to disfavor a plan pretends to imprison the freewheeling sharing economy online in a map of haves and have nots.
By David Tulis / Noogaradio 1240 AM 92.7 FM
The map divides the sheep from the goats among homeowners in Chattanooga. It would destroy home-based free market businesses of many families in the city. It would prevent future ones from being created to serve American and world visitors to the city. It would do so by pretending to exercise the authority to outlaw private businesses by ordinance.
The ban, however, would not be applied to a special group — those inside a special short-term vacation rental district, whose property owners would be able to take part in hosting out-of-town and out-of-country visitors through social media platforms such as Airbnb.
The ordinance violates three fundamental rights of city residents:
➤ It does not allow for the exercise of due process rights before a right is destroyed or separated from the owner of that right. It proposes using civil claims to defeat a right that can only be removed under criminal prosecution.
➤ It does not account for the constitutional doctrine of takings, which says that takings must be done for the public good and for a public purpose. No set showing is made by city council to take this property right or this use of property among owners outside the district.
➤ The map is arbitrary and capricious. It is entirely feckless and unpredictable as to whom it divides among neighbors. Who is to say that it is equitable if and necessary to go down the middle of a street in the neighborhood, destroying one man’s Airbnb business and yet allowing it to the Man across the street who is in the proposed District? American law and Tennessee law do not allow arbitrary and capricious action disallowing Airbnb business and yet allowing it to the man across the pavement. They require equal treatment of people similarly situated.
Ordinance toothless
The measure also is unenforceable due to the city’s being a municipal corporation and a creature of the state. The important supreme court ruling in 1991, City of Chattanooga v. Myers, makes clear the limits on the authority of city government to penalize or punish.
Cities are not authorized to punish. They have at best a power to penalize. A penalty limit of $50 is imposed by the Tennessee Constitution at article 6, section 14. ‡.
Because the power to fine is limited at $50, the city cannot use economic threat and coercion to impose its will against the marketplace.
The court also ruled in City of Chattanooga v. Davis, 2001, that a fine is in the nature of a payment of debt, a restoration of the status quo ante before the municipal offender did his misdeed. They are said to be civil in character, have a remedial effect and are likened to liquidated damages in a contract dispute. The offenses are not criminal; they are civil, and cannot bring imprisonment.
The line between civil and criminal is hard to see with the rise of the modern administrative state in which some policy goals and some criminal offenses are clothed with trappings that are traditionally associated with civil law. However article 6 section 14 requires that such a distinction made. Cities have civil authority and cannot punish.
The Henderson Airbnb map has support from people such as Cynthia Stanley-Cash, who say they oppose short-term vacation rentals as a defense of property rights.
Support for regulation by conservatives such as Darrin Ledford is raised because 500 people spoke against the burgeoning online and next-door-neighbor service that turns private homes into income streams. Envy, resentment and anxiety among one group of residents, however, give no warrant for city government to violate genuine constitutional and statutory protections of everyone who has rental visitors or who plans to join in the sharing economy marketed under the Gig City rubric.
It will take a single homeowner saying “No!” to overthrow the map the council seems ready to approve.
No Southern hospitality — a spanking due
What is disturbing about Chattanooga city council is its lengthy discussion about enforcement and noncompliance, its members’ concern about surveillance and harassment of homeowners and investors, its unwillingness to exercise liberality and openness to visitors and to their hosts.
Rather than discuss how Chattanooga can be even more a Gig City, a city of the future, a haven for visitors and businesses and entrepreneurs, the city is grubbing over a few tax dollars and is willing to violate state law in doing so. City government is acting greedily in the old garb of municipal vulture, rather than as a stable and enabling body, protecting the property rights of all and encouraging free enterprise and innovation in the digital economy that is bringing liberation and benefits worldwide.
The willingness to strangle the free use of private property is a defense mechanism of a party that is defending earlier sins, that being zoning. Zoning creates a control that tens of thousands of residents, homebuilders and developers have tolerated for decades without challenge. To justify that, the council must “do something” about Airbnb, because the status quo seems untenable. People are welcoming guests “illegally” without having rezoned their houses for business purposes. To protect the premise of zoning, it must harass Airbnb.
A proper challenge to zoning as unconstitutional could throw out the entire system statewide, and bring to Tennessee cities the sorts of variety and growth Houston has enjoyed, that city being zoning free.
But as the wife of Uriah the Hittite was stolen by a king, so, too, must the life of the faithful soldier among the troop of King David lose his life to hide the first sin against him. To legitimize zoning, city council seems to have no choice but to impose a geographical map against the internet and to nail it down in the soil.
A city faithless to constitutional limitations is faithless in larger sense. By attacking and destroying home-based rental arrangements for visitors, the city shows itself unwilling to be liberal to its people and to care for the principle of the free market and local economy.
‡ Section 14. No fine shall be laid on any citizen of this state that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than fifty dollars.
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