Lawsuit asks judge to end short-term rental ban

Shut down is a taking of private property, complaint states
May 20, 2020

Time is running out as a federal lawsuit seeks an injunction before Memorial Day weekend against the state's ban on short-term rentals.

Patrick J. Murray, a Dewey Beach condo owner, filed the lawsuit May 15 in U.S. District Court District of Delaware asking the court to end the current ban on short-term rentals and commercial lodging, and to permanently prevent Gov. John Carney and future governors from restricting the use of private property for unspecified or indeterminate periods.

“The result of all the restrictions is that Delawareans are effectively under house arrest with no real end in sight,” the lawsuit reads. “In fact, Delawareans are being subjected to worse treatment than those criminal defendants that are sentenced to house arrest because the criminal defendant knows the date that the house arrest will end.”

On March 15, Carney ordered all short-term rentals and commercial lodging closed for guests at what the lawsuit states is a great loss of income for owners who rent their properties.

“For owners of properties proximate to the Delaware beaches, this restriction is a death knell,” the lawsuit states. “For many owners, rental income from Memorial Day through Labor Day is necessary to pay the mortgage on the property for the entire year.”

Carney's open-ended emergency order is a violation of the Fifth and 14th amendments of the U.S. Constitution, the lawsuit states. Under the takings clause of the Fifth amendment, no private property should be taken for public use without just compensation. The lawsuit states Carney's shutdown has effectively made use of private property by closing it because of the public health crisis.

“Even if the defendant could argue that there is a compelling state interest that justifies the violation of constitutional rights, the government must use the least-restrictive means,” the lawsuit states. “A blanket ban on commercial lodging and all short-term rentals is not the least restrictive means when it is possible for renters to adhere to social distancing or other recommendations of the [Centers for Disease Control and Prevention].”

Under the 14th amendment, the lawsuit states, the property owner's rights to life and liberty have been violated by the economic shutdown.

“If the plaintiff and someone outside his household want to take the risk of sitting closer than six feet on the beach they ought to be permitted to do so,” the lawsuit states. “The ongoing excuse of not wanting to overwhelm the hospitals is unfounded as Delaware hospitals are nowhere near capacity and should not be used as a basis for keeping people apart any longer.”

At the time of the filing, Memorial Day weekend was a week away, and the lawsuit asked for injunctive relief based on a clear showing of immediate, irreparable injury. As of May 19, the only court action that had taken place was to inform Carney of the lawsuit.

Jessica Borcky, spokeswoman for the Office of the Governor, said a legal team is reviewing the lawsuit.



Subscribe to the Daily Newsletter