Vacation rentals

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Einstein460x276No less a light than Albert Einstein is reported to have said that the “definition of insanity is doing the same thing over and over again and expecting different results.” That quote has always seemed more apocryphal than accurate to us, but it’s a good definition regardless of who first uttered it.

Exhibit “A” appended to that definition might be New York City’s “emergency” housing Rent Stablization Law, adopted for the first time in 1969 and renewed eleven times since. The RSL controls how much rent the owners of rent-stablized apartments may charge their tenants (you know, to keep poor folk like Faye Dunaway in their apartments). The city’s justification for the RSL is to deal with a series of housing “emergencies” (initially, the “effects of war and the aftermath of hostilities,” and then any rise in the city’s vacancy rate above 5%), and to allow a “transition from regulation…

Continue Reading What’s That Definition Of “Insanity” Again?

The City of Hayward, California, was concerned that residential rentals within its borders were “decent, safe, and sanitary,” and by ordinance required the owners or tenants of such units to allow city officials to inspect them. If an owner or tenant refused, the “Enforcement Official” was authorized to procure an “inspection warrant” and levy a monetary fine on the property owner.

An association of rental owners sought a writ of mandate, challenging the ordinance because it violated the Fourth Amendment, among other reasons. The trial court granted the writ and held the ordinance facially invalid because it compels a property owner to provide access to a tenant’s residence without tenant consent, and violates the substantive due process rights of the property owners because it levies a monetary penalty on a property owner even when the tenant is the one refusing to allow inspection.The court enjoined enforcement of the ordinance.

The…

Continue Reading Cal App: City May Enter Rental Property To Make Inspections

As we noted in this post, last week the Hawaii Intermediate Court of Appeals heard arguments in Pavsek v. Sandvold, No. 29179. In that case, the court is considering whether a complainer can circumvent the City’s enforcement procedures and the administrative appeal process by instituting an original jurisdiction lawsuit claiming that a homeowner is renting her property in violation of the City’s prohibition on rentals of less than thirty days.

We didn’t live blog the argument or analyze the issues because our firm represents one of the appellees (my Damon Key partner Gregory Kugle argued the case).

Here’s the streaming audio:  

ICAOA_011211_29179

Or you can download it here (caution, it’s a 85mb mp3).

Well worth a listen.
Continue Reading Oral Argument Recording In HAWICA Case: Can Complainer Avoid The Administrative Process By An Original Jurisdiction Lawsuit?

Starting at 10:00 a.m. on Wednesday, January 12, 2011, the Hawaii Intermediate Court of Appeals will hear oral arguments in Pavsek v. Sandvold, No. 29179. In that case, the court is considering whether a complainer can circumvent the City’s enforcement procedures and the administrative appeal process by instituting an original jurisdiction lawsuit claiming that a homeowner is renting her property in violation of the City’s prohibition on rentals of less than thirty days.

We won’t be analyzing the issues or live blogging the arguments because our firm represents one of the appellees (my Damon Key partner Gregory Kugle will be arguing on Wednesday), so here’s the summary of the case from the Judiciary web site:

Plaintiff-Appellants Joseph Pavsek and Ikuyo Pavsek (the Pavseks) appeal from the final judgment entered by the Circuit Court of the First Circuit (circuit court) in favor of Defendant-Appellees Todd Sandvold, Juliana Sandvold, Kent Sather…

Continue Reading HAWICA Oral Argument: Can Complainer Avoid The Administrative Process By An Original Jurisdiction Lawsuit?

Honolulu Civil Beat reports this exclusive “Obama’s Winter White House an Illegal Rental” (complete CB stories are usually behind a paywall, but they’ve posted this one in its entirety). According to the Civil Beat story:

President Barack Obama’s two-week stay at his Hawaii Winter White House was illegal under a long-standing Honolulu ban on short-term rentals.

Obama did not break the law by staying at the house, but the property owner who rented his house to the Obamas does not have the permit that would allow a stay of fewer than 30 days.

…

“They were here for about two weeks, approximately, but I don’t want to get into the contractual issues,” Weinberg said. “They don’t have to rent it for 30 days but you have to leave a 30-day window. I had to make sure that during that period, either 15 days after them or 15 days…

Continue Reading Is POTUS’ Hawaiian Vacation Rental “Illegal?” Here’s Official City Policy

In 1978, the people of Hawaii amended the state constitution to recognize “the right to a clean and healthful environment,” and expressly enabled lawsuits by private parties to enforce “laws relating to environmental quality” —

Each person has the right toa clean and healthful environment, as defined by laws relating to environmentalquality, including control of pollution and conservation, protection andenhancement of natural resources. Any person may enforce this right against anyparty, public or private, through appropriate legal proceedings, subject toreasonable limitations and regulation as provided by law.

Haw. Const. art. XI, § 9. “Laws relating to environmental quality” are not expressly defined, but “include” the obvious

rovidesIn County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009), the four-Justice majority in an 81-page opinion authored by Justice Recktenwald held “[w]e further conclude that article XI, section 9 of the Hawai’i Constitution creates a private…

Continue Reading HAWSCT: Zoning Statutes Are “Environmental” Laws Which Can Be Enforced By Lawsuit

Not much new in Numont v. State of Florida, No. 04-13610 (11th Cir., July 2, 2010) (per curiam). There, property owners sued to enjoin a Monroe County (aka the Florida Keys) ordinance that prevents “vacation rentals.” The opinion makes short work of two issues.

First, the court disposed of the claim that the ordinance was not properly adopted because it underwent “substantial or material” changes during the adoption process. The federal court certified the question to the Florida Supreme Court, which answered that the changes made conformed to the public notice, the ordinance was properly adopted.

Second, the property owners’ takings claim was not ripe since they conceded they had not sought relief in state court. The court rejected the property owners’ claim that doing so would be futile because the ordinance was “part of a larger regulatory effort to ban vacation rentals, an effort that they had challenged…

Continue Reading 11th Circuit: Ixnay On The Vacay Rental Lawsuit

An interesting op-ed piece in Sunday’s Honolulu Star-Bulletin, “Thank zoning laws for your peaceful home,” extols the virtues of zoning:

It has now been more than 85 years since the residents and city councilof the little village of Euclid, Ohio, found that their quietneighborhoods, where their children played, where they walked theirdogs and spent their quiet hours after a hard day’s work, had no legalgovernment protection from what could be built next door; not from ahorse stable, a cement factory or even a slaughterhouse. So to theircredit, Euclidian zoning was born, and upheld by the courts as areasonable protection for residential areas.

The case the author is referring to, of course, is Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), the case in which the U.S. Supreme Court first upheld the segregation of land uses in an Ohio suburban town into districts against…

Continue Reading The Dark Side of Zoning

The Ninth Circuit has scheduled oral arguments 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. The court will hear argument on November 21, 2008, at 9:00 a.m. in Honolulu.

The issues in the case are spelled out in the briefs:

The case and the issues have also been reported in the media:

…
Continue Reading Oral Argument Scheduled in Ninth Circuit Maui Vacation Rental Appeal

In Shanks v. Byrd, No. 06-35665 (Aug. 27, 2008), the Ninth Circuit held that a municipality’s alleged failure to enforce its zoning laws was not a violation of the Fourteenth Amendment.

Developers who convert homes into student residents apparently did not obtain all of the appropriate permits from Spokane, Washington to remodel a portion of a house in the city’s Mission Avenue Historic District.  The city issued a building permit, but the Spokane zoning code requires additional permissions when historic landmarks are involved, and the developers did not seek or obtain a “certificate of appropriateness” or an “administrative special permit” from the city’s Historic Landmark Commission.  The city did not object, and took no steps to require the permits.

A group of neighbors and community organizations sued the property owners and the city, alleging the city’s failure to enforce the zoning code was a violation of their due process…

Continue Reading Ninth Circuit: City’s (Alleged) Failure to Enforce the Zoning Code Is Not A Substantive Due Process Violation (Oh, And Armendariz is Still Overruled)