Newly minted attorney Rebecca Little sits in city court Thursday a day after having taken a bar exam. She runs an Airbnb home and is talking about how the city’s ban on the Internet is unconstitutional. (Photo David Tulis)
The civil cases files against outlaw Airbnb activists and homeowners illustrates how political government works against constitutional and respectful government.
Illegal government is efficient; lawful government is hamstrung.
Chip Henderson got city council to pass his overlay map plan for regulation of short-term vacation rentals. As he recounted Tuesday at council, he had initially proposed allowing the whole city open to these rentals by private parties through the Internet, serving clients worldwide who come to stay in Chattanooga at private houses.
But he couldn’t get the council to agree to a blanket “amnesty” from the regular zoning ritual. So he proposed a plan to let council members and parts of town to opt into the free market. The ordinance today may seem like a good idea, a convenience to city council and the city corporation. But it faces one great hurdle.
It’s unconstitutional.
It makes arbitrary and capricious distinctions between people of like legal standing. The map — with magical favor for some and frowns for others in the city limits — is unenforceable. For those hundreds of homeowners frozen out of the Internet economy, the plan violates constitutional due process rights because it eliminates the only route for appeal among (petition for rezoning). These people are the victim of efficiency, an illegal ordinance of convenience for Chip Henderson and the rest of city council who voted for it. (Only Demetrus Coonrod voted no.)
Good efficiency vs. bad
So it’s not always true that efficient government is illegal.
Business owners have praised the Tennessee’s revenue department for its reasonable and approachable ways of taxing commercial and privileged activity. That agency is remarkably “customer friendly,” according to reports.
But such administrative excellence But often what government sees as a good rule or practice for its own convenience is simply illegal. It is convenient politically for Chip Henderson and the council to pass an illegal ordinance because it allows all parties’ interests to be served– seemingly. But the city council and the municipal corporation’s interest and convenience sears the rights of the people. They are denied the right to enjoy harmless and innocent free market private activity.
Cases evaporate before docket heard
The hearing today in city court before Judge Sherry Paty was to have been a picture of efficiency.
But the city attorney’s office dismissed or gave conditional release of the defendants prior to court. There were at least three, and apparently Thursday none made an appearance. Perhaps Mayor Andy Berke is willing to keep up the damaging ordinance by keeping the noncompliant out of the city’s judiciary.
The real law in the matter is the constitution, and its requirement for due process. That law and the ban on arbitrary and capricious rules impose a burden on state action, an inefficiency, an incoherence, a lack of control.
The “overlay map” for short-term vacation rentals was intended to allow the profitable and taxable activity, and to save people from having to make rezoning appeals. It is an efficient short-cut that recognizes the power of the Internet but wants to maintain the premise of zoning and external control of private property.
Zoning itself is unconstitutional and unlawful. It is to be expected that if zoning is itself unconstitutional and illegal because it is a taking upon the rights of people in real estate, that other laws and ordinances also will have the same defects. The ordinance shares in the defects of its preceding system. It is a variation of it. Because it bans the exercise of rights by private people serving others for private pay on private property, it is over-reach and a damage and wrong upon the people.
Zoning adjustment of the Airbnb maps should be thrown out by Judge Paty. A defendant ought simply utter the three magic words — “arbitrary and capricious” — and the mention “the right of due process” to have these accusations thrown out on their ear.
