Fort Worth Court of Appeals holds Plaintiffs properly plead constitutional challenges to City’s short-term rental ordinance
City of Grapevine v. Ludmilla B. Muns, et al, 02-19-00257-CV (Tex. App. – Fort Worth, Dec. 23, 2021)
This is an opinion on rehearing where the Fort Worth Court of Appeals reversed in part and affirmed in part the trial court’s order regarding the validity of the City’s short-term rental ordinance. [Comment: warning, this is a long opinion – 50 pages.]
The City asserted its zoning ordinance was written in a way that prevented short-term rentals (STRs), but some “bed and breakfasts” were allowed. However, there was sporadic enforcement. After an increase in complaints about negative effects from STRs, the City conducted a study. At the end of the study, the City passed an ordinance banning short-term rentals (STRs) in the entire city. The City provided a 45-day grace period before enforcement would begin. Several property owners and commercial real estate services sued to invalidate the ordinance. The City filed a plea to the jurisdiction and motion for summary judgment, which were denied. The City appealed.
The City first contended the Plaintiffs failed to appeal any decisions to the board of adjustment and therefore failed to exhaust their administrative remedies. Generally, a party must exhaust the administrative remedies available under Chapter 211 of the Local Government Code before seeking judicial review of an administrative official’s decision. However, the Plaintiffs did not apply for permits or otherwise receive any enforcement notification to which they must appeal. Statements made about the City’s intent to enforce an ordinance, without more, is not the type of administrative action over which an appeal is triggered. Appealable actions are those actual determinations made in the act or process of compelling a property owner’s compliance with a City ordinance. Information-only statements are not appealable administrative determinations. Further, the Plaintiffs challenged the constitutionality of the ordinance, which does not always require exhaustion. Generally, administrative bodies do not have the authority to rule on the constitutionality of statutes and ordinances. And while constitutional challenges are not “globally exempted” from the exhaustion requirement, if the administrative body lacked the ability to “render a relief that would moot the claim” then no exhaustion is required. The board of adjustment lacked the authority to grant the Plaintiffs’ the right to conduct an STR, so no exhaustion is required. Next, the City argued that STRs do not fit within the definition of a “single-family detached dwelling” under its zoning code because STRs are not occupied by a single-family but are occupied by groups of people. However, the City’s code defines the word “family” in such a way that it does not require that the people living as a “single housekeeping unit” be related by blood or marriage. It also has no duration of occupancy limit. As a result, by its own wording, the code does not prohibit STRs as long as the occupancy fall within the common and ordinary meaning of “family.” The City next argued the Plaintiffs did not directly challenge the validity of the STR ordinance (only an interpretation of whether it applied to them) so no declaratory relief can be granted. However, the court found their retroactivity, due-course-of-law, and takings claims turn on whether the existing code allowed STRs. To that extent, they have a valid justiciable controversy. Under the takings analysis, the court held that although a property owner generally has no vested right to use his property in a certain way without restriction, they have a vested right in the real property, which includes the ability to lease. From a constitutional standpoint, that is sufficient to trigger a protected property right interest for jurisdictional purposes. This, along with the fact the court found that STRs were not expressly prohibited by the wording of the ordinance, creates a fact issue as to whether the Plaintiffs suffered a taking. The court also noted that, contrary to the City’s arguments, lost profits are a relevant factor to consider in assessing the property’s value and the severity of the economic impact on a property owner. The Plaintiffs pled and submitted evidence to support that STRs “generate higher average rent than long-term leases, even after expenses” and that the STR Ordinance prevents them from “participating in an active, lucrative market for [STRs].” Next, the court did agree with the City that the regulation of STRs is not preempted by the Tax Code, as alleged by the Plaintiffs. Plaintiffs did not point to any provision in either the Tax Code or the Property Code that implies that the legislature meant to limit or forbid local regulations banning STRs. The court then addressed the retroactive law arguments, holding that a “settled” right is different than a vested right and the Plaintiffs asserted the STR ordinance impaired their settled property rights under the common law and under the City’s code to lease their properties on a short-term basis. The issue is not about the “property owners’ right to use their property in a certain way,” but about the owners’ “retaining their well-settled right to lease their property.” Next, in the substantive-due-process context, a constitutionally protected right must be a vested right that has some definitive, rather than merely potential existence. Property owners do not acquire a constitutionally protected vested right in property uses once commenced or in zoning classifications once made. Thus, although the Homeowners have a vested right in their properties, they do not have a vested right under the Zoning Ordinance to use them as STRs. However, the court found they do have a fundamental leasing right, which is sufficient to plead, jurisdictionally, a due-course-of-law claim. The court clarified in this rehearing opinion, that its holding on this point is limited to the fact a property owner has a fundamental right to lease, but the durational limits may be valid or may be invalid depending on the extent of the regulatory intrusion into that right. The intrusion goes to the merits of the case, which the court declined to address as part of the interlocutory appeal. In short, the Plaintiffs properly plead all claims for jurisdictional purposes, except a claim under a preemption theory.
If you would like to read this opinion click here. Panel consisted of Chief Justice Sudderth and Justices Kerr and Gabriel. Opinion on rehearing by Justice Kerr.