inversecondemnation.com

Opening Brief Filed in Ninth Circuit Maui Vacation Rental Appeal

Today we filed the Opening_Brief (250kb pdf) in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court's dismissal of MVRA's complaint which sought to declare Maui's shut down of vacation rentals illegal. 

I won't go into details of the case since the brief spells out the facts and arguments, but here are some prior posts on the case, and links to media coverage:

• Los Angeles Times: Maui: Vacation rentals and B&Bs shut down and 50 illegal Maui B&Bs & vacation rentals shut down

• San Francisco Chronicle: Maui County closes unlicensed bed and breakfasts and vacation rentals

• The Maui News: Vacation rental suit dismissed in federal court

• Honolulu Star-Bulletin: Maui B&Bs face 'crisis'

• inversecondemnation.com: Federal Court Dismisses Vacation Rental Due Process Claims -- Details (with links to the District Court's opinion, MVRA's complaint, and the briefs in the district court)

Order in Florida Short Term Rental Case

Here's the written order (1.8mb pdf) in Milo v. City of Venice, Case No. 2008 CA 552 SC (Mar. 17, 2008), the Florida case invalidating a municipality's restrictions on short term rentals that I posted earlier.  The case arose after the city's planning director determined that the local zoning ordinance restricted short term rentals in "residential" districts. 

The ruling is, of course, specific to Florida law, but there are two points worth noting:

• The court held that short term rental is not a "business" use.  "Indeed many rental properties, regardless of the duration of the rental term, are for profit ventures and could therefore be characterized as 'businesses.'"  Slip op. at 6.  The local code also permits temporary residences without limitation.

• Despite the rule that courts generally should defer to an agency's interpretation of regulations it administers, the court noted the rule that "[z]oning regulations are in derogation of private ownership rights and should be construed broadly in favor of property owners absent a clear intent to the contrary."  Slip op. at 5.  The court held that the municipality's failure to clearly define the term of tenancies in its code was fatal. 

Florida Court Invalidates Short Term Rental Restrictions

According to this report, a Florida state court has invalidated a municipality's attempt to regulate short-term rentals:

Milo [the property owner] bought more than a dozen homes on or near the island beginning in 2005 and started renting them out on a daily and weekly basis, something the city thought was addressed in -- and forbidden by -- its zoning ordinance.

[The court] didn't see it that way. In his seven-page decision, he said the city zoning code lacked key definitions and relied too heavily on state statutes -- statutes that weren't adequately referenced in its zoning code -- when making its case against Milo.

City officials thought they had a solid case, based on current code language and state rules that Planning and Zoning Director Tom Slaughter said in 2006 stipulate "the duration and frequency of rental of a single-family dwelling unit within the RSF (residential, single family) is restricted to not more than three rentals in a calendar year for periods of less than 30 days or one calendar month, whichever is less."

Download the complaint here.  Milo v. City of Venice, Case No. 2008 CA 552 SC (filed Jan. 11, 2008). 

Associated Press: "Hawaii: Tourists Make Lousy Neighbors"

In a story titled "Hawaii: Tourists Make Lousy Neighbors," the Associated Press summarizes the "transient vacation rental" issue that's been making waves on Oahu, Maui, and Kauai.  Only one county, the Big Island of Hawaii, does not actively regulate vacation rentals.  Not a very encouraging headline for an economy dependent upon tourism and welcoming visitors.

On a related note, Charley Foster at Planet Kauai expands on the inversecondemnation.com link to a story about the recent legal challenge to Sedona, Arizona's ban on short term rentals.  Charley adds a collection of links to case studies of how vacation rentals have been treated in other jurisdictions.  Check it out here.

Legal Challenge to Sedona, Arizona Short-Term Rental Ban

As reported here, a lawsuit was filed in Arizona state courts seeking to invalidate Sedona, Arizona's prohibition on short-term rentals (less than 30 days):

Approximately 450 short-term rental properties in Sedona have been impacted by the new Ordinance making it illegal to advertise short-term rentals, and the Code prohibiting short-term rentals.

This ordinance was enacted by the city council Jan. 22 to put teeth into the Code, on the books since 1995, which made it illegal to rent properties for less than 30-days

The tail end of the article lists the claims asserted by the plaintiffs, which include vested rights, selective enforcement, and other constitutional and statutory claims.

Maui Vacation Rental Ban in the News

The San Francisco Chronicle posts "Maui County closes unlicensed bed and breakfasts and vacation rentals," with background on the issue and the pending Ninth Circuit appeal.

In what is becoming a divisive battle - both in court and in residential neighborhoods - the owners of the B&Bs and rental homes charge that the new leadership of Maui County, which encompasses all three islands, has broken promises made by their predecessors to allow unlicensed properties to remain open, pending an overhaul of the cumbersome licensing process.

County inspectors began their crackdown last July, when about 20 properties were ordered to close, mainly in the Upcountry and North Shore areas of Maui.

Complete story here.  Check out the public comments on the story here. 

Disclosure: I represent the Maui Vacation Rental Association in its Ninth Circuit appeal.

Land Use Seminar: February 20, 2008

There's still time to register for the "Advanced Land Use and Zoning Law" seminar to be held on Wednesday, February 20, 2008 at the Ala Moana Hotel in Honolulu. 

Topics include vacation rentals, big box zoning, affordable housing exactions, landowner liability for rockfalls, an environmental law update, and a summary of recent key decisions from Hawaii and other jurisdictions on land use and related issues.  The faculty is comprised of my Damon Key Land Use Practice Group colleagues Greg Kugle, Mark Murakami, Robert Harris, and Noelle Catalan.  I'll be covering the topic "U.S. Supreme Court, Regulatory Takings, and Eminent Domain Update."

Full agenda and registration information here.  Hope you can make it -- if you do, stop by and say hello.

Land Use Round Up

A collection of interesting stories and posts regarding land use law:

• West Hawaii Today reports on a brewing dispute over the definition of land uses.  When is a use of land that involves golf balls and golf clubs not a "golf course?" "Golf course comes under fire -- by definition" (free registration may be required).

• UH Law Professor Carl Christensen guest blogs on PropertyProf Blog about the recent Hawaii Supreme Court decision in Office of Hawaiian Affairs v. Hous. & Community Dev. Corp. of Hawaii, No. 25570 (Jan. 31, 2008).  In that case, the court held that the "Apology Resolution," whereby Congress apologized for the U.S.'s role in the overthrow of the Hawaii monarchy, has the force and effect of substantive law. 

• Ilya Somin posts his thoughts on the Kelo follow-up case from the Second Circuit, Goldstein v. Pataki, here.  The comments that follow the post are also worth reviewing.  My thoughts are here.

• Wait a Second! (the blog of civil right cases from the Second Circuit) posts a summary of the Goldstein case here.

• Economic development takings analysis: John Ross of the Institute for Justice posts his commentary "Restricting eminent domain no hindrance to development" about the IJ's study showing that eminent domain reform has not limited the redevelopment ability of government.

How Appealing

The Maui News reports "Vacation rental group planning to appeal ruling" --

The Maui Vacation Rental Association will appeal U.S. District Judge Michael Seabright’s dismissal of its suit against Maui County to the 9th Circuit Court of Appeals.

President David Dantes said Wednesday that the association had retained a land use legal specialist, Robert Thomas of the Honolulu firm Damon Key Leong Kupchak Hastert, to handle the appeal.

He said that if the association wins its point and if the appeals court in California should remand the case to the Honolulu court, the association might have Maui lawyer James Fosbinder handle the renewal of the suit.

Seabright dismissed most of the association’s claims but left open an option of amending the complaint to allege civil rights violations.

Complete article here.  We posted about this case earlier here.

NY Times Catches a Recurring Vibe

In a story dated December 30, 2007 in the New York Times Travel section, "Not in My Tropical Backyard," Christoper Pala ties together several seemingly-unrelated threads: the Hawaii Superferry, development on Molokai, the Hokulia project on the Big Island, and expanded resort development on Oahu's North Shore.  The only issue that seems to have been left out is the question of vacation rentals.  The unstated thesis seems to be that these events are spurred, in large part by "backlash" against tourists and related development, but that seems like only part of the vibe -- and it may be more the "drawbridge protectionism" discussed in this post, and a perception that we're nearing capacity and things just aren't the way we remember them, than a specific anti-tourism or anti-outsider sentiment.