A homeowner in New Braunfels, TX takes on the city’s short-term rental ban.

Rafael Marfil has a simple wish: to rent his property to families for less than thirty days—something that folks in New Braunfels, Texas have been doing for decades. But the City of New Braunfels made that illegal when it banned property owners like Rafael from using their homes for short-term rentals.

When Rafael and others challenged that in Court, the judge upheld the City’s ban without requiring the City to provide any evidence that renting a home for less than thirty days creates any nuisances. The language from the Judge’s ruling would make it almost impossible for any property owner to challenge City ordinances regulating their property. In particular, the judge held that Cities may ban whatever property uses they want, regardless how harmless or well established, if a “segment of the community” opposes the use.

That’s when Rafael and his fellow property owners reached out to the Texas Public Policy Foundation to take their case. After seeing just how devastating the lower court’s decision could be for property rights across Texas, TPPF attorneys, alongside leading property rights attorney Patrick Sutton, decided to take up the fight and defend the property owners at the Fifth Circuit.

TPPF’s brief argues that Cities can’t just declare normal uses of property to be nuisances without providing some evidence of harms that the city is attempting to prevent. Under the due process and equal protection clauses of the Texas and U.S. Constitutions, there must, at a minimum, be a rational basis for a city ordinance. “When cities eliminate or restrict well-established uses of property, this Court’s precedent gives property owners a chance to argue—based on the record—whether those restrictions are justified under the police power. To hold otherwise would convert rational basis scrutiny from an already government friendly test, to a practical immunity from suit.”

TPPF’s Opening Brief can be found here.