City government in Chattanooga is considering revisions in a map that courageously violates the property rights of hundreds of residents by forbidding them to turning a stagnant asset — their houses — into cash-producing investments.
By David Tulis / 92.7 NoogaRadio
City council votes tonight to accept minor editing of the map to include new properties east between Hixson Pike and the Tennessee River.
The map has been in control of the short-term vacation rental market for more than a year and no cowed city resident has challenged it as illegal.
The council votes without dissent to accept the changes on a first reading. The vote legalizes the use of the Internet among these residents who up until now have not been permitted by Gig City to use the Web to bring private profit to themselves via Airbnb and other like digital platforms.
The nearest remedy may be in the heart of two homeowners who indicate they plan to do Airbnb and defy the city ordinance.
One is a physician, Jennifer Smith, and the other is activist and real estate maven Gloria Page Reed. Mrs. Reed has received a cease and desist letter from the economic development office, insisting that she halt all economic development.
The hallowed district was created June 2017 and lets residents politick their area neigborhood associations that hold sway with their respective city council members. People have lobbied their self-appointed neighborhood groups either to allow short-term vacation rentals.
The map created as a compromise by member Chip Henderson lets the city preserve its regime of zoning and allow STVRs apart from any necessity for a homeowner to petition for a rezoning.
The Hixson Pike change is not the first, Mr. Henderson, a builder, says after the meeting. Earlier, Glenwood sought to be included.
Councilman Jerry Mitchell had been petitioned by these residents to be added, because they had been mistakenly left off the original map, Mr. Henderson says. “They were told they were not in the district, and Councilman Mitchell said it had been his intent for both sides of Hixson Pike to be included in the district, and so whether it was clerical error, or miscommunication, it was always his intent, by his statement, that both sides of Hixson Pike be included in short-term vacation rentals.”
Falmouth, other residents excluded
“Nothing on [Falmouth]” is allowed, he says. Asked if there exists a legal distinction among people on Hixson Pike and those on Falmouth, Mr. Henderson says the map is legally sound.
“The legal description is the boundary line, now,” Mr. Henderson says.
“I would argue that it’s not arbitrary, it’s not capricious. It is based on the input from neighbors from neighborhoods. I can only speak for those in my district that wished not to be in the short-term vacation rental district. Some did wish to be in.
“So what we had to do was determine the ones that were in favor of it, and the ones that were opposed to it, and try to draw lines according to that.”
Democratic ‘voice’ deletes rights
In his district. No. 1, Mr. Henderson says, there were several meetings over whether to swing for or against Airbnb. The Stringers Ridge neighborhood association voted “not to be in the short-term vacation rental district. There are those within that neighborhood association that wish to be in it. But the majority of those people voted to be out of that district. So, in a democratic society, the only way I knew how to handle that was to let the majority have their voice.”
Nothing has happened in city court to challenge the two-year-old system, he says.
City councilman Anthony Byrd says he would prefer there be no overlay map at all banning families from being Airbnb members but allowing others to prosper in the rental use of their properties.
“Some people say they do want Airbnbs. Others say they don’t. As a city councilman I have to figure out that balance, say ‘Hey, do we have a free market and everyone does it?’ Then you have that group of people coming down here and saying, ‘I don’t want this. I don’t like this.’ *** You have to create balance. *** If they say, I don’t want this in my life, how do with fix it” without affecting other people.
Mr. Byrd concedes that Airbnb use by one person does no actual tort or wrong to another, to a neighbor of the one who is using his own private property and capitalizing on it.
“But the perception of injury, the perception discomfort, the perception of dysfunction, is there. And for some odd reason, this perception is the new reality. And at some point in time, we have to separate the two, perception from reality. Because the words we speak, they point toward the truth. They don’t mean they are the truth.”
Mr. Byrd highlights the problem with the city’s control of people’s property with its far-reaching ban on Airbnbs. One person can ban another person from using private property by lobbying a neighborhood “leader” or “association” to vote now as a private collective and prohibit the other person from exercising a liberty.
That liberty causes no actual injury, but is a perceived grievance that city council and neighborhood claque conspire to prevent.
And because “perception is the new reality,” private property rights are obliterated by a combination of city council and the private neighbor group.
The ordinance is illegal and unconstitutional on several points. Chief among them is that it lawlessly divides like parties, giving some favor, and putting others under prohibition. It’s a violation of basic due process rights, with no mechanism for appeal or exception, and operating arbitrarily.
Black’s Law Dictionary, 4th edition, defines the problem of the city overlay map. ARBITRARY. Means in an “arbitrary” manner, as fixed or done capriciously or at pleasure; without adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason or judgment; depending on the will alone; absolutely in power; capriciously; tyrannical; despotic; Cornell v. Swisher County, Tex.Civ.App., 78 S.W.2d 1072, 1074. Without fair, solid, and substantial cause; that is, without cause based upon the law. U. S. v. Lotempio, D.C.N.Y., 58 F.2d 358, 359; not governed by any fixed rules or standard. People ex rel. Hultman v. Gilchrist, 188 N.Y.S. 61, 65, 114 Misc. 651.