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Court of Appeals of Texas, Third District, Austin
November 27, 2019, Filed
[*179] These cross-appeals arise from challenges to a municipal ordinance amending the City of Austin's regulation of short-term rental properties. See Austin, Tex., Ordinance No. 20160223-A.1 (Feb. 23, 2016) (codified in Austin City Code chapters 25-2 and 25-12). Appellants Ahmad Zaatari, Marwa Zaatari, Jennifer Gibson Hebert, Joseph "Mike" Hebert, Lindsay Redwine, Ras Redwine VI, and Tim Klitch (collectively, "Property Owners") own homes in the Austin area and sued the City and its mayor (collectively, "the [*180] City"), asserting that certain provisions in the ordinance are unconstitutional. Specifically, the Property Owners challenged the ordinance provision that bans short-term rentals of non-homestead properties, see id. § 25-2-950, and the ordinance provision that controls conduct and types of assembly at short-term rental properties, see id. § 25-2-795. The State intervened in the Property Owners' suit to contend that the ordinance's [**2] ban on short-term rentals of non-homestead properties is unconstitutional as a retroactive law and as an uncompensated taking of private property. The Property Owners and the State appeal from the district court's order granting the City's no-evidence motion for summary judgment and denying the Property Owners' and the State's traditional motions for summary judgment. The City and the State also challenge the district court's orders excluding certain evidence from the summary-judgment record. On cross-appeal, the City challenges the district court's order overruling the City's plea to the jurisdiction.
The ordinance provision banning non-homestead short-term rentals significantly affects property owners' substantial interests in well-recognized property rights while, on the record before us, serving a minimal, if any, public interest. Therefore, the provision is unconstitutionally retroactive, and we will reverse the district court's judgment on this issue and render judgment declaring the provision void. The ordinance provision restricting assembly infringes on Texans' fundamental right to assemble because it limits peaceable assembly on private property. Therefore, because the City [**3] has not demonstrated that the provision is narrowly tailored to serve a compelling state interest, the provision violates the Texas Constitution's guarantee to due course of law, and we will reverse the district court's judgment on this issue and render judgment declaring the provision void. We will affirm the remainder of the judgment and remand the case to the district court for further proceedings consistent with this opinion.
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615 S.W.3d 172 *; 2019 Tex. App. LEXIS 10290 **; 2019 WL 6336186
Appellants, Ahmad Zaatari, Marwa Zaatari, Jennifer Gibson Hebert, Joseph "Mike" Hebert, Lindsay Redwine, Ras Redwine VI, and Tim Klitch//Cross-Appellants, City of Austin, Texas; and Steve Adler, Mayor of The City of Austin, and the State of Texas v. Appellees, City of Austin, Texas; and Steve Adler, Mayor of The City of Austin//Cross-Appellees, Ahmad Zaatari, Marwa Zaatari, Jennifer Gibson Hebert, Joseph "Mike" Hebert, Lindsay Redwine, Ras Redwine VI, and Tim Klitch
Subsequent History: Petition for review denied by City of Austin v. Zaatari, 2021 Tex. LEXIS 501 (Tex., June 11, 2021)
Prior History: [**1] FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY. NO. D-1-GN-16-002620, THE HONORABLE TIM SULAK, JUDGE PRESIDING.
Disposition: Affirmed in Part; Reversed and Rendered in Part; Remanded.
assembly, rentals, short-term, ordinance, retroactive, property owner, rights, peaceable, common good, fundamental rights, type-2, majority opinion, ban, zoning, declarations, regulation, lease, retroactive law, unconstitutionally, tenants, residential, purposes, summary judgment motion, summary judgment, impaired, private property, provisions, property right, restrictions, no-evidence
Civil Procedure, Appeals, Standards of Review, De Novo Review, Preliminary Considerations, Jurisdiction, Standards of Review, Justiciability, Standing, Burdens of Proof, Standing, Ripeness, Tests for Ripeness, Ripeness, Injury in Fact, Governments, Local Governments, Claims By & Against, Abuse of Discretion, Evidence, Relevance, Relevant Evidence, Summary Judgment, Motions for Summary Judgment, Cross Motions, Appellate Review, Entitlement as Matter of Law, Appropriateness, Constitutional Law, Bills of Attainder & Ex Post Facto Clause, Ex Post Facto Clause, Application & Interpretation, Legislation, Effect & Operation, Retrospective Operation, Bill of Rights, Fundamental Rights, Fundamental Rights, Procedural Due Process, Scope of Protection, Fundamental Freedoms, Freedom of Assembly, Freedom of Association, Equal Protection, Judicial Review