Murr v. Wisconsin, Drones, and Short Term Rentals. Murr v. Wisconsin (US 2016)

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1 Murr v. Wisconsin, Drones, and Short Term Rentals Dwight Merriam, FAICP Robinson & Cole LLP Two lots purchased at different times. Merged by action of zoning. Substandard Same owners Parcel as a whole case. What is the relevant parcel? Murr v. Wisconsin (US 2016) 2 1

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5 croix river family land use fight us supreme court/ /

6 Whether, in a regulatory taking case, the parcel as a whole concept as described in Penn Central Transportation Company v. City of New York, establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes. Several Names Numerator denominator Or just the denominator problem Takings fraction Relevant parcel Parcel as a whole Nonsegmentation Nonseverance 12 6

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10 Only Apparent Post Murr Decision Quinn v. Queen Anne s County (4 th Cir. 2017) 10

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12 Lessons Learned Consider separate ownerships to preserve rights. Checkerboarding may not always work if owner controls the other parcel. Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. 689 (1989), aff'd, 406 Mass (1990). 23 And If You Don t Like the Law, Change It Wisconsin 2017 Assembly Bill 479 enacted November 27,

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14 Drones Local Regulation 27 Institute for National Security and Counterterrorism, Syracuse University, Domesticating the Drone regulation/ 28 14

15 National League of Cities Cities and Drones content/uploads/2016/09/nlc Drone Report.pdf 29 Paradise Valley, Arizona Not under 500 without owner permission Not over public property without a permit Commercial users must register 1. Commercial Use means the use of an Unmanned Aerial Vehicle within the Town for a commercial purpose, including aerial photography, aerial mapping, or geospatial imaging

16 Barstow, California Not within 50 of a right of way Does not prohibit model aircraft Privacy oriented 31 Berkeley, California Moratorium adopted for one year banning police use 32 16

17 Daly City, California Prohibited acts. No person, group or organization in any park or recreational area shall: P. Use unmanned aircraft systems (drones) of any size. 33 Los Angeles, California Can t fly above 400 Must be visual line of sight 34 17

18 Manhattan Beach, California Modelled after Los Angeles and Beverly Hills ordinances 35 Rancho Mirage, California May not fly below 400 anywhere, except over a single residence with owner s permission and with a permit 36 18

19 Cherry Hills Village, Colorado Commercial operators authorized by FAA exempt 37 Deer Trail, Colorado Residents in the Colorado town have voted down a unique proposal that highlighted displeasure with government surveillance and would have allowed townspeople to get licenses to shoot down drones in local airspace

20 Bonita Springs, Florida Unmanned aircraft. Any person who obtains a special event permit may use a drone to photograph their special event in the park during the course of the event. 39 Miami, Florida This section is intended to promote public safety and protect people attending large venue public events from the flying of unmanned aircraft systems ("UAS") in and over such large public events

21 Orlando, Florida Restrictions near cityowned parks, schools, and certain venues, and gatherings of more than 500 people Indemnification Insurance 41 Augusta, Georgia Commercial UAS flight. A flight of a UAS for commercial purposes that has been authorized or approved by the FAA and the operator of such UAS has a FAA standard or special airworthiness certificate; or a Certificate of Waiver Authorization from the FAA; or an exemption under Section 333 of the FAA Modernization and Reform Act of 2012; or other verifiable authorization from the FAA granting permission for a UAS flight or flights

22 Cherokee County, Georgia Sec Use of engine powered models, toys and unmanned aerial systems. It shall be unlawful for any person to start, fly or use any fuel powered engine, jet type or electric powered model aircraft, boat or rocket or like powered toy or unmanned aerial system, except at those areas designated by the county for such use and then only in accordance with such rules, regulations and restrictions established by the director or the director's authorized agent. 43 Chicago, Illinois Over homes with permission Exempts FAA authorized 44 22

23 Evanston, Illinois Let moratorium expire: Ald. Rainey clarified that the moratorium has expired and the Committee is voting not to renew the moratorium because the state and federal laws regarding drones are sufficient. 45 Manhattan, Illinois Exempts commercial use if registered 46 23

24 Schaumburg, Illinois 109A.02 OPERATION OF DRONES PROHIBITED. The operation of a drone within one hundred (100) feet of the perimeter of any village property or on any village right of way during a special event is hereby prohibited. 47 Barnstable, Massachusetts Section 401A 6(C) Prohibited Activities: Using, launching, landing or operating an unmanned aircraft from, or on, land or waters associated with any of the Town of Barnstable bathing beaches is prohibited except as approved in writing by the Town Manager

25 Northampton, Massachusetts 49 St. Bonifacius, Minnesota No operation in the City s airspace, except 50 25

26 Bernards Township, New Jersey No drones in the parks or recreational facilities: j. The flying and/or launching of unmanned aircraft by the public, including model or remote control airplanes, helicopters, recreational drones and rockets, is prohibited. This shall not prohibit any federal, state, county or municipal agency, law enforcement agency or emergency services organization from the use of drones and unmanned aircraft for any lawful and authorized purpose pursuant to applicable regulation. 51 Chatham, New Jersey Regulations. a. Except as otherwise provided in subsection , drones and unmanned aircraft are prohibited from being launched from any government or public buildings, property, or parks within the Township or landing on any government or public buildings, property, or parks within the Township. b. Except as otherwise provided in subsection , drones and unmanned aircraft are prohibited from operating or flying in any airspace below four hundred (400) feet within the airspace over any government or public buildings, property, or parks within the Township. (Ord. No ) Exceptions. a. This section shall not prohibit the constitutional use of drones and unmanned aircraft by any law enforcement agency or emergency services organization of or servicing the Township, the State of New Jersey, or the United States of America for lawful purposes and in a lawful manner. b. This section shall not prohibit any Federal, State, County or municipal agency from the use of drones and unmanned aircraft for any lawful and authorized purpose pursuant to applicable regulation. c. This section shall not prohibit the use of unmanned aircraft by any Federal, State, County or municipal agency, including, but not limited to, law enforcement and emergency services agencies, for lawful purposes and in a lawful manner. (Ord. No ) 52 26

27 Unregulated? New York, New York 53 Orchard Park, New York No operations near certain open air events, except with written permission by the town 54 27

28 Syracuse, New York No operations by the City until federal and state law further developed 55 Kannapolis, North Carolina No operations in parks 56 28

29 Grand Forks, North Dakota No operations, with some exceptions for law enforcement, emergencies, etc. Drone assisted policing 57 Celina, Ohio Operations permissible with City s permission granted by Safety Service Director 58 29

30 Cleveland, Ohio Registration with FAA and notification of airport control 59 Pittsburgh, Pennsylvania No operations in parks 60 30

31 Aberdeen, South Dakota Restrictions, but permissible by property owners and with their permission 61 Charlottesville, Virginia David Swanson anti drone regulation received, but not acted on 62 31

32 Pierce County, Washington Restrictions on Gathering Evidence. No County department or agency shall use a drone or other unmanned aircraft to gather evidence or other information pertaining to criminal conduct or conduct in violation of a statute, ordinance, regulation or rule, except as authorized by state and federal law. 63 Seattle, Washington Restricts City's use Also, restricted in parks 64 32

33 Antigo, Wisconsin UAV testing and training at Langlade County Airport supported 65 Chetek, Wisconsin Flight level restrictions in the airport zone 66 33

34 Green Bay, Wisconsin May not fly below an altitude of 400 feet within the designated boundaries of a special event during the scheduled time of the event. This subsection shall not apply to authorized public safety agencies or operators having obtained approval from the event organizer or from the Federal Aviation Administration. 67 Outagamie County, Wisconsin Requires UAV operations at the airport to comply with FAA and county ordinances 68 34

35 Takeaways Consider federal and state preemption Don t regulate the technology Regulate the user not the drone Support first responders and insurance companies Get advice on illegal searches Short Term Residential Rentals Part of the Trend of Sharing Transportation Network Companies Cars Zipcar Enterprise Turo Ridesharing Uber Lyft 70 35

36 Service Peer to Peer or Collaborative Consumption TaskRabbit Skillshare Goods Listia Space Airbnb HomeAway

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38 75 Airbnb Founded 2008, San Francisco Two roommates with air mattresses 600,000+ hosts 3,000,000+ listings 150,000,000+ guests 191+ countries 65,000+ cities 76 38

39 Airbnb 6 12% commission above rental 3% listing fee Profits of $3.5 Billion by 2020 Capitalized value of $30 billion

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41 Morton County, ND [Breien] 81 Helena, MT 82 41

42 Grand Junction, CO 83 Jackson Heights, NY 84 42

43 Hutchinson, MN 85 Stakeholders Hotel owners Unions Municipalities Landlords Co operative and condominium owners Hosts 86 43

44 Short Term Rental (STR) We define a short term rental (STR) as a residential property that is rented to a visitor for less than 30 days. Short Term Rental Advocacy Center 87 Questions You Might Ask Are they hotels? What if they are rented for longer periods? How are they used? Vacations Business Temporary lodging during renovations Visiting patients Family gatherings Does it matter how they are used? 88 44

45 What Are You Trying to Achieve with Regulation? Preservation of single family values? Avoidance of commercialization? Better property stewardship? Protecting appearance? Too many cars? Too much activity? Noise? Trash? 89 Benefits and Burdens Will additional income result in better maintenance? Can aging in place may be facilitated? Is it possible that people forced out by economics may be able to stay? Can you meet housing needs for certain demographics? Young person returning to town Divorced man Abused wife Foreclosed property owner 90 45

46 Benefits and Burdens Will regulation create willful violators? Could it reduce housing supply and affordability? Will failure to regulate endanger people? What will be the impact on taxes? Do owners need counseling on insurance and mortgage covenants? What about existing covenants and easements? Is it zoning? How do you enforce? 91 Is It Economic Development? PROMOTION OF ECONOMIC DEVELOPMENT THROUGH THE VISITORS INDUSTRY WHEREAS, communities throughout the United States rely on local hotel taxes to promote travel and tourism and support the local visitors industry; and WHEREAS, local hotel taxes often fund convention and visitors bureaus, convention centers, sports arenas and sports teams; and WHEREAS, local hotel taxes often support local cultural programs including music, film, gaming, visual arts, dance and more; and WHEREAS, short term rental of homes can often be subject to hotel taxes; and 92 46

47 WHEREAS, short term rental of homes can provide a flexible housing stock that allows family travelers spending longer periods of time in a community a safe accommodation while contributing to the local economy; and WHEREAS, short term rental of homes can provide homeowners an opportunity to hold property as an investment, for a better sales market, or for future planning; and WHEREAS, fair regulation of short term rentals ensures greater compliance and greater receipt of local hotel taxes; and WHEREAS, regulations of short term rentals that establish a reliable way for a municipality to identify and contact the short term rental owner, make the tax collection and remittance obligation clear and treat the short term rental owner the same as long term rental owners can achieve the highest level of compliance; and WHEREAS, onerous regulations of short term rentals can drive the industry underground, thus evading local regulations and local hotel taxes; 93 NOW, THEREFORE, BE IT RESOLVED, that the U.S. Conference of Mayors urges support for economic development opportunities through the visitors industry by encouraging regulations of the short term rental industry that (1) establish a reliable way for the municipality to identify and contact the short term rental owner; (2) make the tax collection and remittance obligations clear to the short term rental owner; and (3) treat short term rental tenants the same as long term rental tenants. Regulations that accomplish all three can achieve a high level of compliance, and are highly effective. RESOLUTION ADOPTED JUNE

48 Planning What is the need? What do you have now? What is the market? In what zones? How many where? Austin, Texas by census tract In what structures? New? Old?

49 How Do You Permit? As of right? Site plan? Discretionary, site specific approval, e.g. special permit? In an overlay zone? With a floating zone? Forever or for a term? 97 What s in the Regulations? Definition Process Fees Submission requirements Reviews Fire Police Health 98 49

50 Prohibition on commercial activity Parking Duration Owner present or not Compensation or not Number of guests Notification of neighbors Safety inspections Licenses, fees, taxes 99 Materials are at: Pace DHM 50