HomeMy WebLinkAbout08-10-23 Public Comment - C. Torsleff - Recent federal ruling about Short Term RentalsFrom:Christofer Torsleff
To:Agenda
Subject:[EXTERNAL]Re: Recent federal ruling about Short Term Rentals
Date:Wednesday, August 9, 2023 4:04:58 PM
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I did not see me comments listed in the public comments section under Short Term Rentals?
Thank you,
Chris Torsleff
On Aug 8, 2023, at 4:02 PM, Christofer Torsleff <crtorsleff@icloud.com> wrote:
Dear City Commission,
As you debate current and new Short Term Rental policies, I am not sure if
you are aware of the recent ruling by the United States Federal Court of
Appeals. Any restrictions in Bozeman would also restrict Interstate
Commerce making them unconstitutional according to this recent ruling.
There is also a similar ruling by United States federal court in Austin on
August 3, 2023 that declared Austin ordinance which is very similar to
Bozeman’s is unconstitutional. I hope this information was beneficial and
if you would like more information on the Austin ruling I am happy to
provide. These are just the most recent as many more courts ruling exist
saying short term rental restrictions are unconstitutional, so if enforced
could open the city of Bozeman up to additional liability given the recent
rulings. The health and safety part of licensing is supported and necessary
for all properties, but you should strongly reconsider the unconstitutional
part of your ordinance.
Thanks you,
Chris
This article comes from jdsupra.com
A recent decision by a federal court of appeals found a New Orleans’ city
code limiting short-term rentals of residential properties (such as AirBnB,
Vrbo, Vacasa, etc.) to only landlords who lived inside the city was
unconstitutional.
In Hignell-Stark v. City of New Orleans, 46 F.4th 317 (5th Cir. Aug. 22,
2022), the Court held the city ordinance was an undue burden on
interstate commerce. A state or city law that discriminates against
interstate commerce is unconstitutional unless there is no other way to
enforce the government's legitimate policy goals.
In this case, the city “doesn't just make it more difficult for [non-resident
owners] to compete in the [short term rental] market…it forbids them
from participating altogether." The city responded that (1) the law was
intended to make sure a responsible adult lived on the property full-time;
(2) residents from outside the city could operate short-term rentals in
nonresidential zoned areas; and (3) the law not only burdened interstate
commerce, but it also prohibited Louisianans who didn't live in New
Orleans. The Court found none of these arguments were relevant.
The city urged three objectives justified the law: preventing nuisances,
promoting affordable housing, and protecting neighborhoods' residential
character. The Court found the nuisance and residential character goals
could be achieved by enforcing existing nuisance laws, increasing penalties
for nuisance violations, increasing taxes on short-term rentals, or by
requiring a representative of the landowner to be on the property (or in the
city) during night hours. There were many ways to increase the supply of
affordable housing without prohibiting interstate commerce.
BOTTOM LINE: State and local laws that discriminate against non-
residents – in the context of real estate rights and commerce – are subject
to constitutional attack and face a high hurdle to prove the state, city, or
county really had no other choice.
Chris Torsleff