Date Filed: June 23, 2023
Original Court: U.S. District Court for the Western District of Texas
Appeals: Fifth Circuit
Case Status: Preliminary Injunction Granted
In 2023, the City of San Marcos denied a request from two homeowners to remove a Juliet balcony from their home. That balcony featured a large “Z” on the front installed by a previous homeowner, Frank Zimmerman. Mr. Zimmerman was a civic leader in the 1920s with well-known ties to the Ku Klux Klan. Given these ties, the homeowners wanted to remove the balcony to better reflect their family’s values and aesthetic preferences. The home had been previously rejected for listing as a historic home. But it lies within a designated historic district, so the City’s Historic Preservation Commission must approve all exterior modifications. Following a hearing, the Commission denied permission.
The homeowners sued the City to vindicate their property rights. Under longstanding caselaw, the Texas Constitution prohibits using zoning laws to enforce aesthetic preferences. Instead, zoning laws must promote public health and safety. Additionally, requiring homeowners to maintain an unwanted structure attached to their home is a taking under the Fifth Amendment.
The Fifth Circuit’s opinion delivered a strong win for property owners. First, it recognized that “precedent has no expiration date,” so Texas Supreme Court decisions limiting zoning power can still be cited to protect property owners’ rights. Second, it determined that the balcony is a per se taking in violation of the Fifth Amendment. This victory affirms Texans’ longstanding property rights, and serves as a warning to local governments whose regulations infringe on those rights.
The Fifth Circuit’s decision reversed the trial court’s grant of a motion to dismiss. CAF continues to litigate the case at the trial court to secure a final victory for our clients.
Case Documents:
Magistrate’s Report and Recommendation