The Challenger

The Challenger Weighs In On Legal Deficits Of Clarkstown’s Proposed Ban On Short-Term Rentals

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Clarkstown To Hold March 8 Meeting To Introduce Laws To Prohibit Any Short-Term Rentals For Single-Family and Two-Family Homes

By Michael Starvaggi

There is an expression in the legal world that bad facts make for bad law.  That seems to be the case with Clarkstown’s proposed code changes.  Following on the heels of the violent incident involving a single short-term rental in New City in late January, the town is now proposing a law that bans rentals of less than twenty-nine consecutive days in any residentially zoned district.  In essence, this would eliminate Airbnb, VRBO and similar rentals in the town.

michael starvaggiThe general constitutional issue in cases like this is whether the law bears upon legitimate interest of the town in protecting the safety of its residents and whether the law, as written, appropriately addresses that issue.  Restrictions made promptly in response to an unfortunate event often are legally vulnerable under these standards, and the proposed Clarkstown law is no different.

There are at least four grounds on which it could be challenged.

First, the law may be deemed to be overbroad.  This is the case when a law addresses a legitimate government interest but unwittingly restricts other rights that are outside the scope of legitimacy.  An illustrative example of how the Clarkstown law does this may be as follows: A homeowner gives occupancy to a cat-sitter for a week. The cat-sitter, who normally charges $100 per day, would swap her cat-sitting fee for a place to stay for the week. The homeowner received something of value in exchange for the occupancy, therefore the arrangement would violate the law as written.  Both homeowner and cat-sitter are now unwitting criminals. Since the stated objective of the law is to “prevent unregulated tourist or transient-oriented uses . . .  in residential districts and traditional residential neighborhoods,” the cat-sitting scenario violates the letter of the law but does not run afoul of its stated purpose, making the law overbroad.

Another scenario which indicates that the law is overbroad would be a house-swap with a lifelong friend, perhaps a high-school friend or college roommate. The friend occupies my house and I occupy hers – each receiving something of value from the other. Both have become criminals.

Second, the law could be challenged as violating what is known as substantive due process.  This refers to the inherent individual rights that are read into the Fifth and Fourteenth Amendments that, when affected by government action, trigger judicial scrutiny.  If a court were to agree that the right to make the maximum financial use of one’s home is a fundamental constitutional right, then the law could very well be stricken.  In that scenario, the law would have to serve a compelling town interest and would have to be drawn in a way that (similar to the overbreadth concept) addresses that interest in the most-narrow manner possible.  It could easily be argued that the town’s interest in keeping its residents safe may be compelling, but is certainly not narrowly protected by a blanket prevention of “transient-oriented uses,” which are not inherently dangerous or threatening.  And even if the court ruled that the homeowner’s rights at stake were not fundamental rights, the law would still be subject to scrutiny, albeit of a less stringent nature.  In that case, it would have to be rationally related to a legitimate town interest.  But here again, there is certainly an argument that transient rentals are not inherently dangerous, the New City incident notwithstanding, and therefore a general prohibition on them is not rationally related to any legitimate interest the town has in keeping its residents safe.

Third, there is an argument that the law violates constitutionally guaranteed equal protection.  This would mean that a class of citizens is unfairly singled-out and treated disparately from other groups.  Here, homeowners in residentially zoned areas could argue that they have been deprived of the ability to yield maximum economic benefits from their homes.  It could also be the population of short-term renters who cannot afford leases of thirty days or more and will be excluded from the marketplace by the law.  Either of these, or potentially other groups could argue that the town law violates their right to equal protection.

Fourth, the wording of the law could be deemed by a court to be too vague to enforce.  Some examples of the vagaries in the proposed law are the use of the term “traditional residential neighborhoods” with no definition and the fact that one section seems to state that the prohibition on short-term rentals applies only in residential zones, while another states that it applies to all residential dwellings in the town, regardless of zoning.  Town laws are often vulnerable to these types of challenges and oftentimes, once a court sends the law back for re-writing, the momentum stops and the law never resurfaces.

In any event, it would take a lawsuit, brought by an appropriate party who is affected by the law to bring these potential challenges to light.  While it is impossible to predict what would happen in such a case, there is no doubt that the arguments above, as well as others, could derail the town’s attempt to stop short-term rentals.

Michael Starvaggi is a Nyack-based attorney.