Draper v. City of Arlington

• Decision Date: 15 July 2021
• Docket Number: No. 02-19-00410-CV,02-19-00410-CV
• Citation: 629 S.W.3d 777
• Parties: Rawnda DRAPER, Mark Scott, Megan Scott, Jeremy Fenceroy, and Bradley Herbert, Appellants v. CITY OF ARLINGTON, Texas, and W. Jeff Williams, Mayor of the City of Arlington, Appellees
• Court: Texas Court of Appeals

629 S.W.3d 777

Rawnda DRAPER, Mark Scott, Megan Scott, Jeremy Fenceroy, and Bradley Herbert, Appellants

v.CITY OF ARLINGTON, Texas, and W. Jeff Williams, Mayor of the City of Arlington, Appellees

No. 02-19-00410-CV

Court of Appeals of Texas, Fort Worth.

Delivered: July 15, 2021

ATTORNEYS FOR APPELLANTS: BYRON K. HENRY, WALKER S. YOUNG, SCHEEF & STONE, L.L.P., FRISCO, TEXAS.

ATTORNEYS FOR APPELLEES: CHAD ARNETTE, WHITNEY D. BECKWORTH, KELLY HART & HALLMAN LLP, FORT WORTH, TEXAS, NASTASHA ANDERSON, GALEN GATTEN, ROBERT FUGATE, CYNTHIA WITHERS, CITY OF ARLINGTON CITY ATTORNEY'S OFFICE, ARLINGTON, TEXAS.

Before Kerr, Bassel, and Womack, JJ.

OPINION

Opinion by Justice Kerr

This appeal arises from a challenge to two City of Arlington municipal ordinances regulating short-term rentals (STRs).¹ Rawnda Draper, Mark and Megan Scott, Jeremy Fenceroy, and Bradley Herbert (collectively, "the Homeowners") own residential properties in Arlington that they have leased to others on a short-term basis. In April 2019, the City of Arlington adopted two complementary ordinances: (1) an ordinance amending the City's Unified Development Code to specifically allow STRs as permitted uses only in certain areas of the City (the "Zoning Ordinance")² and (2) an ordinance regulating the operation of STRs (the "STR Ordinance"). As a result, the Homeowners sued the City and its mayor, seeking declarations that both ordinances violate their due-course-of-law and equal-protection rights under the Texas Constitution and that the STR Ordinance's prohibition against STR tenants’ congregating outdoors on the premises during certain hours violates the tenants’ assembly and freedom-of-movement rights under the Texas Constitution.

The Homeowners applied for a temporary injunction to enjoin the City and the mayor from enforcing the ordinances. The trial court denied the application, and the Homeowners have appealed, contending in four issues that the trial court abused its discretion by denying their temporary-injunction application.³ We will affirm the trial court's order.

I. Background

The City of Arlington sits between the cities of Dallas and Fort Worth and is home to the Dallas Cowboys, the Texas Rangers, Six Flags Over Texas, and The University of Texas at Arlington. With the City's location in the middle of the Dallas–Fort Worth Metroplex, its attractions, and the rise of websites like Airbnb, the City has experienced an uptick in the short-term rental of residential properties. But for some Arlington residents who live near STRs, this influx of transitory tenants into residential neighborhoods has created problems: noise disturbances, wild parties, and excessive street parking, as well as trash overflowing into the streets and tenants’ engaging in fistfights and urinating in front yards. According to Arlington resident Kari Garcia, STRs are a "nightmare for the neighbors."

In response to the increasing use of homes as STRs and their attendant issues, the City engaged in an "extensive period of public comment, public input, and work sessions with the legislative body and planning commission" to strike a "reasonable balance" between the interests of residents and of STR owners and operators. Among other things, the City hired consultants, mapped the distribution of STRs across the City according to census-tract data, and sought citizen input through a series of townhall meetings, surveys, an open house, and small group meetings with STR proponents and opponents. For over two years, the STR issue was discussed at almost 20 Arlington city-council meetings at which citizens on both sides of the issue voiced their opinions. The city council tasked the City's Department of Planning and Development Services with compiling public input, analyzing other cities’ approaches to STRs, developing regulatory options, and presenting its findings to the council. Ultimately, in April 2019, the city council enacted the Zoning Ordinance and the STR Ordinance. See Arlington, Tex., Ordinances 19-014, 19-022 (Apr. 23, 2019).

The Zoning Ordinance created an STR Zone, which the ordinance defined as "[a] geographically contiguous area, extending approximately one mile from Arlington's entertainment hub, that is bounded on the north by E. Lamar Blvd., on the west by Center Street, on the south by E. Abram Street, and on the east by southbound State Highway 360 frontage road." Arlington, Tex., Ordinance 19-014. The Zoning Ordinance amended the City's Unified Development Code to allow residential structures and accessory secondary-living units to be used as STRs, provided they are within either the newly created STR Zone, a residential medium-density zoning district, a residential multifamily zoning district, or a nonresidential and mixed-use zoning district. Id. The Zoning Ordinance also outlaws operating an STR without a short-term-rental permit issued in accordance with the STR Ordinance. Id.

The STR Ordinance in turn prescribes the permitting process and imposes regulations on STR owners and tenants.⁴ See Arlington, Tex., Ordinance 19-022. The permitting process requires, among other things, proof of insurance coverage of up to $1 million per occurrence, see id. § 3.07, and a physical inspection by the City to ensure "compliance with minimum health and safety requirements for use and occupancy," id. § 3.08. The STR Ordinance additionally

• prohibits "the congregation of occupants outside at the premises between the hours of 10:00 p.m. and 9:00 a.m.";

• proscribes the advertising of an on-premises special event such as a "banquet, wedding, reception, reunion, bachelor or bachelorette party, concert, or any similar activity that would assemble large numbers of invitees";

• limits the number of STR occupants; • imposes parking restrictions and limits the number of vehicles allowed at an STR;

• prohibits the physical conversion of the premises to add additional bedrooms for STR use;

• disallows the use of amplified sound equipment that "produces sound audible beyond the property line of the premises between the hours of 10:00 p.m. and 9:00 a.m."; and

• prohibits an owner or occupant from putting trash out for pickup before 7:00 p.m. the evening before scheduled pickup or on a day not scheduled for pickup by the City.

Id. §§ 3.12–.13, 3.15–.19. The STR Ordinance also requires STR owners and operators to notify STR occupants of these regulations. Id. § 3.20.

The five Homeowners own properties in the City. Draper and Fenceroy live in their homes and have rented bedrooms to short-term occupants. Neither of their homes is in the STR Zone or within a zoning district in which STRs are allowed. The Scotts own three properties. One of them is in the STR Zone, and another is in a zoning district in which STRs are allowed. The Scotts’ third property—which they bought intending to turn it into an STR but which is their current residence—is not in the STR Zone or a zoning district in which STRs are allowed. Herbert owns two STR properties, one of which is in the STR Zone. The other is not, nor is it in a zoning district in which STRs are allowed.

The Homeowners sued the City and its mayor seeking declarations that (1) the STR Ordinance violates STR tenants’ freedom-of-assembly rights under the Texas Constitution; (2) the Zoning Ordinance and the STR Ordinance violate the Homeowners’ substantive-due-course-of-law rights under the Texas Constitution; (3) the STR Ordinance violates STR tenants’ freedom of movement rights under the Texas Constitution's substantive-due-course-of-law clause; (4) the Zoning Ordinance and the STR Ordinance violate the Homeowners’ equal-protection rights under the Texas Constitution; and (5) the Zoning Ordinance and the STR Ordinance are ultra vires acts that exceed the City's and the mayor's zoning powers. The Homeowners also sought to enjoin the City from enforcing both ordinances.

At the evidentiary temporary-injunction hearing, Draper, Fenceroy, Herbert, and Mark Scott testified. Also testifying were Richard Gertson, who is the assistant director of the City's Department of Planning and Development Services, and Garcia, who lives across the street from an STR⁵ with her husband and two children. The trial court denied the Homeowners’ temporary-injunction request without making findings of fact and conclusions of law. The Homeowners have appealed, and raise four issues⁶ :

• The Homeowners are likely to prevail on their claim that the Zoning Ordinance violates the Texas Constitution's substantive-due-course-of-law clause because the right to lease one's private property is a vested right and because the City's prohibition against STRs is unrelated to a legitimate governmental interest.

• The Homeowners are likely to prevail on their claim that the STR Ordinance is an unconstitutional restriction on STR tenants’ freedoms of assembly and movement because it unilaterally prohibits, at certain times, assembly on private property.

• The Homeowners are likely to prevail on their claim that the Zoning Ordinance and the STR Ordinance violate the Texas Constitution's equal-protection clause because both ordinances treat short-term renters and landlords differently from long-term renters and landlords without compelling evidence justifying this disparate treatment.

• The Homeowners will suffer imminent and irreparable harm from the constitutional-rights deprivations that the ordinances bring about.

II. Standard of Review and Law Applicable to Temporary Injunctions

A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Butnaru v. Ford Motor Co. , 84 S.W.3d 198, 204 (Tex. 2002) (op. on reh'g). Its purpose is to preserve the status quo of the litigation's subject matter pending a trial on the merits. Clint ISD v. Marquez , 487 S.W.3d 538, 555 (Tex. 2016). The status quo is "the last, actual, peaceable, non-contested status which preceded the pending controversy." In re Newton , 146 S.W.3d 648, 651 (Tex. 2004) (orig. proceeding) (quoting Janus Films, Inc. v....