Print
E-mail
Comment
Rate
Share
McLean loses appeal
By JUDI BOWERS
Jim and Barbara McLean don’t consider it a loss. The city of Big Bear Lake considers it a win.
The Ninth Circuit Court of Appeals upheld a previous court decision in McLean v. city of Big Bear Lake. The court found that the McLeans lacked the grounds to challenge the city’s transient private home rental ordinance under the Americans with Disabilities Act.
“Nobody won,” Barbara McLean said. The decision isn’t a case and can’t be used in a defense as a cited case, she said.
Jim McLean, who owns Apples Bed and Breakfast Inn on Moonridge Road in Big Bear Lake, sued the city in June 2006 alleging his rights were violated under the Equal Protection Clause. His suit claims his bed and breakfast inn is subject to a more onerous set of regulations than those applied to private home rentals.
McLean alleged that the city’s failure to subject vacation rentals to the same regulations will lead to an eventual suit by a handicapped person under ADA.
Private home rentals are homes rented for periods of less than 30 days. Within the city of Big Bear Lake, private home rental owners and management companies must adhere to regulations adopted by the city. A separate enforcement ordinance was adopted at the end of 2007 to provide the city’s code compliance division stronger tools to implement the regulations. San Bernardino County has a similar private home rental ordinance in place for the unincorporated areas of the Valley.
The city of Big Bear Lake issued a press release regarding the appellate court ruling. It states the Court of Appeals ruled in the city’s favor and cites statements made in the memorandum issued by the court.
This isn’t the first time the McLeans have taken their fight to the courts. In each case, the courts have ruled against the McLeans. Barbara says she and Jim aren’t unhappy about the most recent decision, which was issued March 12. She said they are disappointed that certain questions weren’t answered. She says the questions will need to be asked again.
The main question is whether cities have the power to disregard federal and state law, Barbara says.
The March 12 decision handed down by the Ninth District Court of Appeals is an affirmation of the trial court’s decision. The memo regarding the appeal states the appellate court agrees with the district court that the city’s less stringent regulation of single family vacation rentals is rationally related to a legitimate state interest. It further states that McLean lacks standing to assert a claim under ADA.
The ruling memo states the district court is correct in its findings that the city’s ordinance furthers legitimate state interests such as assisting private homeowners in acquiring additional revenue, which may be used to improve the city’s housing stock.
“Whether the decision to regulate single family homes differently than inns and bed and breakfasts is wise is not within the purview of the judiciary, and we refuse to upset the judgment of Big Bear’s elected officials,” the memo states.
“The decision does not surprise us,” Barbara says. “But we are overall pleased with the direction given by the appellate court.”
She is referring to a statement in the memo that states “ ... even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.”
Barbara says the appellate court confirmed the city makes unwise decisions. She says the democratic process will prevail as it did in Hawaii in a similar private home rental battle. “We have never suggested the city (of Big Bear Lake) prohibit them (private home rentals), just be respectful and fair to those in the same business and those who live in residential neighborhoods,” Barbara says. She says the rumors that claim the ballot initiative will regulate private home rentals out of business aren’t true.
The McLeans led the charge to place an initiative on the November ballot regarding private home rentals. If passed, the ordinance will regulate private home rentals forcing conditional use permits and stringent fines for violations among other things. The city hired a consultant to review the initiative. The results claim the ordinance would eliminate most private home rental business in the city and thus impact the city coffers significantly.
The city collects approximately $2.4 million in transient occupancy tax annually from all lodging businesses, with 50 percent coming from private home rental units. The revenue represents 18 percent of the city’s general fund.
The McLeans' ballot initiative has come under fire from rental management companies and others, and is the subject of a separate law suit filed by Citizens Protecting the Rights of Property Owners. A hearing is scheduled for April 10.
Barbara McLean says there is a method in place for another hearing regarding the March 12 court of appeals decision. She said she and Jim are considering that avenue.
Contact reporter Judi Bowers at 909-866-3456, ext. 137 or by e-mail at jbowers@bigbeargrizzly.net.
The Ninth Circuit Court of Appeals upheld a previous court decision in McLean v. city of Big Bear Lake. The court found that the McLeans lacked the grounds to challenge the city’s transient private home rental ordinance under the Americans with Disabilities Act.
“Nobody won,” Barbara McLean said. The decision isn’t a case and can’t be used in a defense as a cited case, she said.
Jim McLean, who owns Apples Bed and Breakfast Inn on Moonridge Road in Big Bear Lake, sued the city in June 2006 alleging his rights were violated under the Equal Protection Clause. His suit claims his bed and breakfast inn is subject to a more onerous set of regulations than those applied to private home rentals.
McLean alleged that the city’s failure to subject vacation rentals to the same regulations will lead to an eventual suit by a handicapped person under ADA.
Private home rentals are homes rented for periods of less than 30 days. Within the city of Big Bear Lake, private home rental owners and management companies must adhere to regulations adopted by the city. A separate enforcement ordinance was adopted at the end of 2007 to provide the city’s code compliance division stronger tools to implement the regulations. San Bernardino County has a similar private home rental ordinance in place for the unincorporated areas of the Valley.
The city of Big Bear Lake issued a press release regarding the appellate court ruling. It states the Court of Appeals ruled in the city’s favor and cites statements made in the memorandum issued by the court.
This isn’t the first time the McLeans have taken their fight to the courts. In each case, the courts have ruled against the McLeans. Barbara says she and Jim aren’t unhappy about the most recent decision, which was issued March 12. She said they are disappointed that certain questions weren’t answered. She says the questions will need to be asked again.
The main question is whether cities have the power to disregard federal and state law, Barbara says.
The March 12 decision handed down by the Ninth District Court of Appeals is an affirmation of the trial court’s decision. The memo regarding the appeal states the appellate court agrees with the district court that the city’s less stringent regulation of single family vacation rentals is rationally related to a legitimate state interest. It further states that McLean lacks standing to assert a claim under ADA.
The ruling memo states the district court is correct in its findings that the city’s ordinance furthers legitimate state interests such as assisting private homeowners in acquiring additional revenue, which may be used to improve the city’s housing stock.
“Whether the decision to regulate single family homes differently than inns and bed and breakfasts is wise is not within the purview of the judiciary, and we refuse to upset the judgment of Big Bear’s elected officials,” the memo states.
“The decision does not surprise us,” Barbara says. “But we are overall pleased with the direction given by the appellate court.”
She is referring to a statement in the memo that states “ ... even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.”
Barbara says the appellate court confirmed the city makes unwise decisions. She says the democratic process will prevail as it did in Hawaii in a similar private home rental battle. “We have never suggested the city (of Big Bear Lake) prohibit them (private home rentals), just be respectful and fair to those in the same business and those who live in residential neighborhoods,” Barbara says. She says the rumors that claim the ballot initiative will regulate private home rentals out of business aren’t true.
The McLeans led the charge to place an initiative on the November ballot regarding private home rentals. If passed, the ordinance will regulate private home rentals forcing conditional use permits and stringent fines for violations among other things. The city hired a consultant to review the initiative. The results claim the ordinance would eliminate most private home rental business in the city and thus impact the city coffers significantly.
The city collects approximately $2.4 million in transient occupancy tax annually from all lodging businesses, with 50 percent coming from private home rental units. The revenue represents 18 percent of the city’s general fund.
The McLeans' ballot initiative has come under fire from rental management companies and others, and is the subject of a separate law suit filed by Citizens Protecting the Rights of Property Owners. A hearing is scheduled for April 10.
Barbara McLean says there is a method in place for another hearing regarding the March 12 court of appeals decision. She said she and Jim are considering that avenue.
Contact reporter Judi Bowers at 909-866-3456, ext. 137 or by e-mail at jbowers@bigbeargrizzly.net.
Share this Article
 |
 |
|
| Living a dream and getting paid for it | MWD board meets to consider docks |
Article Rating
Reader Comments
The following are comments from the readers. In no way do they represent the view of bigbeargrizzly.net.
=) wrote on Mar 22, 2008 12:33 PM:
" I agree!! What a complete waste of time and what a horrible way to divide our community! Shame on the McLeans. Next thing you know they will protest the Girl Scouts for selling cookies without a Peddlers License! "
Susan wrote on Mar 25, 2008 2:02 PM:
" According to the study done by the consultant, your ordinance "would eliminate most private home rental business in the city, thus impacting the city coffers significantly". 1.2 million is a significant amount.
This would affect other businesses such as utilities and basic necessities. Tourism would suffer and this town thrives on tourism. Restaurants, private rental housing, hotels, just about every business here is geared to tourism.
Short version: Your ordinance would destroy our city. Why do you continue? Is it your intent to destroy our peaceful community?
If you just need to prove a point and are so passionate in your cause and determined whatever the cost, perhaps you should go to another town.
We really don't want you here.
"
This would affect other businesses such as utilities and basic necessities. Tourism would suffer and this town thrives on tourism. Restaurants, private rental housing, hotels, just about every business here is geared to tourism.
Short version: Your ordinance would destroy our city. Why do you continue? Is it your intent to destroy our peaceful community?
If you just need to prove a point and are so passionate in your cause and determined whatever the cost, perhaps you should go to another town.
We really don't want you here.
"
a full time resident wrote on Mar 26, 2008 10:18 AM:
" Since the McLeans have been trying to sell their place, maybe they are leaving. Bottom line is a B& B or inn is NOT the same as a SFR. That is why everyone keeps ruling against them(Mcleans). I am sad and disheartened at their attempt to divide and destroy our community because they did not like having to upgrade their B&B when they added onto it making it even bigger than it was, and certainly NOT the size of a single family house. Lets have peace and just quit it. "
You must register with a valid email to post comments. Only your Member ID will be posted with the comments.
Registered users sign in here: |
Become a Registered User |
pp wrote on Mar 21, 2008 9:59 AM: