A senior judge appointed by the Tennessee Supreme Court will decide whether or not Hendersonville’s ordinance regulating short-term rentals like Airbnb’s is unconstitutional after three Sumner County judges recused themselves from hearing the case.

The city filed a complaint in Sumner County Chancery Court in April of 2019 against James Allen alleging Allen violated the city’s ordinance that only allows short-term or vacation rentals in certain commercial districts, and not in residential neighborhoods.

Allen had been renting his 5,400-square-foot home in the Blue Ridge subdivision as a vacation property since early 2017 with the city’s police department receiving numerous complaints about renters’ behavior ranging from excessive noise to complaints of lewd and vulgar behavior, according to the complaint.

In November of 2018, Allen was found guilty by Hendersonville Judge Curtis Lincoln of 30 counts of violating the ordinance. He was fined $188.75 for each count, appealed the decision to Sumner County Circuit Court and continued to violate the ordinance, according to court filings.

The city’s Board of Mayor and Aldermen voted unanimously in February of 2019 to authorize City Attorney John Bradley to seek injunctive relief in a court of law. Bradley filed the complaint April 2, 2019 asking the chancery court judge to declare the city’s zoning ordinance valid and enforceable and permanently enjoin Allen from further violating the ordinance.

Chancery Court Judge Louis Oliver III recused himself citing a conflict, and both the Chancery Court complaint brought by the city as well as Allen’s appeals were assigned to Sumner County Circuit Court Judge Joe Thompson.

Attorney: Ordinance violates rights to equal protection, privacy

In January of 2020, Allen’s attorney, William L. Moore, Jr., filed a 45-page memorandum challenging the validity of Ordinance 2016-16, arguing it is unconstitutional because it violates the equal protection clause under the 14th amendment by treating citizens differently depending on the type of property they own. The ordinance also violates citizens’ right to privacy, Moore argued.

“The city’s ordinance tramples on the constitutional rights of its citizens in an effort to accomplish interests that can be accomplished by less restrictive means,” he wrote. “As stated, there are already laws and ordinances to protect citizens and property owners alike from nuisances such as noise restrictions, public drunkenness laws, ordinances regarding maintenance of properties, etc.”

The ordinance doesn’t take into consideration the laws already in place, and instead overreaches its policing authority on privately owned property, the attorney argued, asking that the city’s law be struck down.

Attorneys for Allen and the city each argued their case before Thompson in a hearing in August of 2020 via Zoom. Thompson took the case under advisement.

In early March, the judge asked the state’s Supreme Court to appoint a new judge to the case.

“Although this court initially undertook the consideration of this case and proceeded therein without the awareness of a conflict, it has come to the court’s attention that due to a number of factors – some unknown to the court at the time he undertook management of the case, and others arising thereafter… it is necessary for Judge Joe H. Thompson to recuse himself from further proceedings in this cause,” according to a Request for Designation of Judge dated March 4.

Judge Oliver had previously recused himself and Criminal Court Judge Dee Gay indicated that he would have a conflict with the hearing as well, the request said.

“Since all judges in the 18th Judicial District have indicated a conflict, the court requests that the Chief Justice of the Tennessee Supreme Court designates a judge to hear the case to final disposition,” it added.

Robert E. Lee Davies of Williamson County was assigned to the case on March 18. A senior judge since 2016, Davies served as a circuit court judge in the 21st judicial district from 2000-2008.

According to City Attorney John Bradley, Davies held a brief teleconference with attorneys on April 26.

The judge will review the video of oral arguments that was made in August and make a decision about the constitutionality of the city’s ordinance, Bradley added.

While the city awaits a decision, it continues to enforce the ordinance by citing violators into city court.

The city has issued 137 citations to three separate homeowners for violating the city’s short-term rental statute since Jan. 1, 2020, according to City Recorder-Designee Annette Hunter.

“The city continues to enforce the ordinance when we receive complaints,” Bradley said.