In 2016, the city of Austin passed one of the most aggressive sets of regulations for short-term rentals — also known as vacation rentals or furnished rentals — in the country. A constitutional challenge to those regulations is currently pending before the Third Court of Appeals in Austin.
In a recent article in the Texas Tribune, a member of the Austin City Council attempted to characterize the challenged law as nothing more than an anti-nuisance provision aimed at quelling loud parties and increasing available housing. Absent from the councilwoman’s statements, however, was any mention of what the challenged ordinance actually does, how the regulations themselves possibly address nuisance behavior or housing, or how the lawsuit, if successful, would hinder the city’s ability to police loud parties at short-term rentals.
Unfortunately, this slight-of-hand has been the pattern of virtually all advocates of the city’s short-term rental regulations since they were passed — talk about parties, ignore the actual challenged portions of the ordinance.
This approach is understandable. The actual challenged portions of the ordinance do bizarre things like require that short-term rental guests be asleep by 10 p.m. and submit to warrantless searches. It’s much easier to attack straw men and defend nuisance regulations in the abstract than to defend the bizarre and unconstitutional ordinance that the city actually passed.
But it is precisely these ridiculous regulations that are at issue in the case, not the city’s general authority to police nuisance behavior. In litigation, the city has conceded that the challenged regulations do not turn on public nuisances like noise, parking, or trash, or the availability of housing. The city’s own studies showed that short-term rentals generate fewer public nuisance complaints than long-term rentals. Moreover, the city already has regulations on the books that prohibit loud parties, excessive parking in the street, over occupancy and trash. Each of those legitimate regulations can be enforced at the property line without entering the home, counting bodies, or enforcing adult bedtimes.
In other words, this lawsuit has nothing to do with loud parties or beer cans in yards. The city’s ability to regulate those things is not being challenged. The city can and should police that sort of activity, and has ample laws on the books to do so.
The question is whether the city has authority to eliminate vested property rights that have existed in the city for more than a century, search homes, set adult bedtimes, count the number of people sitting quietly inside a home, or restrict when you can stand quietly in the back yard. That is the ordinance that the city passed and that is what it must justify.
It is understood that a certain portion of the population is opposed to short-term rentals, but constitutional rights are not subject to the arbitrary whims of the public. Short-term rentals have been part of Austin neighborhoods since the 1800s, the Austin Court of Appeals has repeatedly held that short-term rentals are a valid residential use, and the city’s own studies say that short-term rentals are not causing more disturbances than their neighbors. Given this lack of harm, the fact that neighbors may not like short-term rentals is not a constitutionally permissible reason to ban them. As the Texas Supreme Court has explained, “It is a doctrine not to be tolerated in this country that either State or municipal authorities can by their mere declaration make a particular use of property a nuisance which is not so, and subject it to the ban of absolute prohibition.”
At the end of the day, the city of Austin has to explain what it actually did. It can’t hoist up a straw man and claim that it just wants to police nuisances. Despite two years of litigation, it hasn’t been able to do so.
This commentary was originally featured in the Austin Business Journal on May 10, 2018.