City council appears on track to pass an ordinance that smacks of narrow-mindedness and provincial isolationism. But these faults may dim in comparison to another: It is illegal.
By David Tulis / Noogaradio 1240 AM 92.7 FM
That is the short-term vacation rental zoning proposal that has met little opposition in principle among the nine members. The plan to ban short-term vacation rentals via such networks as Airbnb assumes the very worst of the people who come to visit Chattanooga and assumes the worst of homeowners and investment property holders in the city.
It argues a pretended interest in the use of state police power to protect public health, safety and welfare, though none of these matters of public interest are threatened by the harmless, innocent and nuisance-free activities of private parties renting to high-end and even common out-of-town or out-of-country visitors.
Henderson map ‘arbitrary’
The measure proposed by council member Chip Henderson is arbitrary and capricious as to whom its district map includes. Those outside the boundary of the special use short-term vacation rental district are banned from enjoying the benefits of the sharing economy and renting their homes out to others via Airbnb and other networks. For those inside, bliss, regulation and profit under city rules.
The ordinance is arbitrary and capricious and violates the equal protection rules under federal and Tennessee law. “Arbitrary or capricious” means a willful or unreasonable agency action without consideration of or in disregard of facts or law” (TCA 4-5-226) or, in the standard for judicial review, a “clearly unwarranted exercise of discretion” (TCA 4-5-322).
“ARBITRARY. What depends on the will of the judge, not regulated or established by law” (Bouvier’s, 1856). “Arbitrary and capricious means doing something according to one’s will or caprice and therefore conveying a notion of a tendency to abuse the possession of power. In U.S. this is one of the basic standards for review of appeals. Under the ‘arbitrary and capricious’ standard, the finding of a lower court will not be disturbed unless it has no reasonable basis” (USlegal.com).
State law uses the expression arbitrary 34 times and capricious 26 times. The ban against such acts is comprehensive.
Will we get clear word from lawyers?
Wade Hinton, city attorney, is remiss in not warning the council about the rights of Tennessee citizens who reside within the city limits. He lays aside too easily his judicial responsibility as a judge (lawyers are officers of the court) to take up the cause of his patron and client, the municipal corporation of Chattanooga.
An attorney is “an officer of the legal system” whose duty is to uphold the law and respect for law. “[A] lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy,” says the lawyer’s rulebook, “depend on popular participation and support to maintain their authority.”
Respect for law among the people is premised on government’s strict adherence to it. Attorney rules admit an an officer of the court may face conflict between the law and a client. But conflict “must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules.” These principles include “the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law.”
Lawyers are ordered to avoid being “prejudicial to the administration of justice.” For attorneys to debate the Airbnb ban without pointing out the obvious limitations of municipal authority and the rights of the people flirts with legal miscreancy.
Mike Mallen, hired by Girls Preparatory School to fearmonger and assume the very worst of visitors and tourists, does double duty to deny obvious God-given and constitutionally protected rights of the people at large.
Attorney Mallen accepts the illegality of the plan as operative, but now wants to tinker in equally arbitrary grounds to carve out exclusionary “safety zones” to deny people within the district the privilege of renting via Airbnb. It’s like a double negative, and almost as confusing.
Christian arguments for inclusion?
But GPS is seconded by ostensibly Christian and liberty-loving groups operating St. Nicholas and St. Peter’s Episcopal schools. Representatives from the schools have argued that perverts may be among those who rent houses near their schools and so the owners of those houses should be prevented from exercising their free market rights.
The vague accusations of evil character contradict the Episcopalian identity said to be “founded on love, trust and inclusion.” The Christian sect “values reason as a way to true understanding and fosters a concern for the well-being of society,” but its arguments for the ordinance and for exceptions in it care little for the rationality of private property rights and the prosperity that comes to all when they are protected.
For St. Peter’s to teach children to live in confidence in God and in general high regard for fellowmen is thrown down by administrators’ expressing bigoted fears about foreigners, people speaking other tongues and visitors in weird sashes, headdresses and shoes.
The ordinance is an effort to uphold the sanctity of zoning, which is an unconstitutional taking that no property owner in Chattanooga has had the nerve to challenge. If zoning is to be had, any profitable use of a private house must be seen as subject to ban or regulation. Mr. Henderson’s plan is simply a reformulation of zoning, with arbitrary map lines replacing the rules for petitions for rezoning and special use.
Sources: Rule 8, rules of professional conduct, Tennessee, http://www.tsc.state.tn.us/rules/supreme-court/8
Proposed ordinance “to amend Chattanooga city code, Part II, chapter 38, zoning ordinance relating to short-term vacation rental.” http://www.chcrpa.org/Chattanooga%20Proposed%20Short%20Term%20Vacation%20Rental%20Ordinance.pdf