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State appeals court strikes down Austin rules on short-term rentals

Wednesday, November 27, 2019 by Matt Largey

A state appeals court has declared some elements of Austin’s rules governing short-term rentals unconstitutional, including provisions banning non-owner-occupied rentals and occupancy limits.

In 2016, the City Council passed sweeping new regulations of short-term rentals, like those you find through Airbnb or Homeaway. The rules included a phased-in ban on what are called “type 2 STRs” — those that are not occupied by the owner. That ban would be in place by 2022.

The court said a ban on type 2 STRs would not prevent any of the concerns the city cited, and that many of those concerns – about disorderly conduct, public urination and noise – were already prohibited by the law.

The city’s ordinance also limited occupancy to two adults per bedroom and banned “assembly” — like weddings, bachelor/bachelorette parties and other group events — between 10 p.m. and 7 a.m.

In the court’s opinion overturning those provisions, justices wrote “the ordinance provision banning non-homestead short-term rentals significantly affects property owners’ substantial interests in well-recognized property rights while … serving a minimal, if any, public interest.”

The court also wrote the rules on occupancy and party times “[infringe] on Texans’ fundamental right to assemble because it limits peaceable assembly on private property.”

District 9 Council Member Kathie Tovo, who was instrumental in getting the rules passed, said she was “extremely surprised and not pleasantly so.”

“The council very rightly made a distinction between residential properties that are used by homeowners as short-term rentals for a very limited period each year and properties that are really serving a commercial purpose,” she said. “And short-term rentals, [type] 2’s, which the court was responding to, are commercial properties.”

In her dissenting opinion, Justice Chari Kelly argued the court’s reasoning misconstrues the state’s constitution and that cities have a right to prevent or restrict behavior that is a nuisance to neighborhoods.

“Loud noise. Obstructing infrastructure. Flouting law enforcement. Public disturbances. Threats to public safety. All these may make an assembly non-peaceable and have nothing to do with civic discourse,” Kelly wrote. “And the City believes that it has evidence of short-term rentals causing all these.”

The city said it was disappointed by the ruling and would consider how to respond.

This story was produced as part of the Austin Monitor’s reporting partnership with KUT. Photo by Jorge Sanhueza-Lyon/ KUT.

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