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Austin’s Short-term Rental Ordinance is Unconstitutional

Despite Austin’s reputation as one of the most welcoming cities in the world, local officials continue to adopt policies that are hostile to outsiders. Take the city’s onerous new restrictions on short-term rentals (STRs), for instance.

In late February, city officials approved a controversial new ordinance that will eventually prohibit popular vacation rental homes in residential areas by 2022. The reason? Austin’s politically-powerful neighborhood associations argued that too many “party homes” were popping up, even though the city’s own facts and figures don’t support that.

Public records obtained from the city of Austin, dating back to when short-term rentals were first regulated, show that officials have prosecuted STR owners only five times—and every time was for operating without a license. Evidently, that miniscule amount was enough to justify government intervention on a broad scale.

The new ordinance doesn’t just put Austin on the path to prohibition though. It also gives city officials outlandish new powers and foists reams of red tape on law-abiding, licensed STRs.

For example, the new ordinance forces STR owners and guests to submit themselves to warrantless searches by code officials or their representatives showing “the proper credentials.” This completely un-American act can occur “at all reasonable times,” according to the ordinance, which could mean that code enforcement shows up at your door in the dead of night since some of the STR restrictions don’t actually go into effect until 10:00 p.m.

Exactly what are these warrantless searches hoping to uncover?

It could be to see whether people are observing the new prohibition on “not more than two adults per bedroom” between the hours of 10:00 p.m. and 7:00 a.m. Or it could be to see if the rule barring any “group activity other than sleeping” is being observed during those same hours. Or it could be to make sure that there isn’t “an outside assembly of more than six adults between 7:00 a.m. and 10:00 p.m.” which basically outlaws birthday parties for kids and family BBQs at STRs. Dangerous stuff, for sure.

Unfortunately for licensed owners and guests, this isn’t even the entirety of what’s regulated or banned under the ordinance. Austin’s new law features a long list of silly rules and restrictions that trample all over people’s constitutional rights and protections.

In fact, in a lawsuit filed last month, the Texas Public Policy Foundation identified more than a half-dozen violations of the Texas Constitution including intrusions on the freedom of movement, assembly, privacy, economic liberty, equal protection, search and seizure, and an ultra vires act. The lawsuit seeks to restore these rights by having the ordinance struck down.
For their part, Austin officials have responded to the lawsuit by digging in their heels, saying through a spokesman that: “The city lawyers are prepared to defend the ordinance in court.” So the stage appears to be set for a lengthy-but-interesting legal battle on the future on short-term rentals.

None of this is to say that STRs shouldn’t be regulated at all. There may well be some light and predictable regulations needed; but Austin’s current law goes well beyond that measure.

Most people recognize how far overboard Austin has gone with its heavy-handed regulations. After all, one does not forfeit their rights simply by choosing to stay at a short-term rental. Nor does operating an otherwise lawful STR mean that you have inferior property rights compared to your neighbors. And hopefully soon, the Austin officials themselves will recognize that too.

This Op-ed was submitted to Breitbart Texas by James Quintero. He leads the Think Local Liberty project at the Texas Public Policy Foundation. He may be reached at jquintero@texaspolicy.com.

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