City of Grapevine v. Ludmilla B. Muns, Richard Mueller, Kari Perkins, Kevin Perkins, Pamela Holt, and A-1 Commercial and Residential Services, Inc. ( 2023 )

Supreme Court of Texas
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No. 22-0044
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City of Grapevine,
Petitioner,
v.
Ludmilla B. Muns, Richard Mueller, Kari Perkins,
Kevin Perkins, Pamela Holt, and A-1 Commercial
and Residential Services, Inc.,
Respondents
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On Petition for Review from the
Court of Appeals for the Second District of Texas
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JUSTICE YOUNG, joined by Justice Blacklock, concurring in the
denial of the petition for review.
One of the questions presented in this petition is of increasing and
demonstrable importance: the extent to which municipal bans on short-
term rentals pass constitutional muster. Due in large part to online
marketplaces like Airbnb and Vrbo, large cities and small towns alike
now host many of their visitors not inside traditional lodging quarters
(like hotels and motels) but instead inside the homes of their residents.
Evidently, the City of Grapevine, Texas, is no exception. Its short-term
rental market has recently “exploded,” according to the court of appeals.
Like many other municipalities, however, the City has sought to outlaw
the market entirely. Citing an increase in complaints about noise,
traffic, and crime, the City passed an ordinance in 2018 prohibiting
“single-family dwelling transient rentals,” which it defined as “the
rental or offer for rental of any dwelling or any portion of a dwelling for
a period of less than 30 days.” Grapevine, Tex., Code of Ordinances,
ch. 14, art. VI, §§ 14-150, -151.
The respondents in this case are homeowners in the City who rent
out their properties to others on a short-term basis (i.e., less than thirty
days). They collectively allege that the 2018 ordinance violates their
rights under the Takings and Due Course of Law Clauses of the Texas
Constitution. In their suit against the City, the homeowners seek to
vindicate what they have described as a “natural,” “inherent,” and
“inalienable” right: the right to lease their private property to others.
And they won—both at the trial court and on appeal. Nevertheless, in
their response to the City’s petition for review, the homeowners
welcome—if not encourage—us to grant the City’s petition. Short-term
residential leasing is now ubiquitous, they say, and because
municipalities across the State have begun prohibiting it, this Court
needs to weigh in on the heady constitutional questions at stake.
The homeowners’ and City’s shared belief in the importance of
these questions is buttressed by the obvious interest of the several amici
who have already filed briefs and letters at this stage. Amicus Texas
Public Policy Foundation, for example, submits that “courts have seen a
flurry of litigation regarding short-term rentals” and that the City’s
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decision to prohibit them implicates “property rights across Texas.” On
the other side of the ledger, amicus Texas Municipal League states
plainly that “the issue before this Court is of great significance to Texas
cities,” and the brief filed by amicus Texas Neighborhood Coalition, which
speaks to its mission and its “swell” of supporters across the State, also
indicates the importance of this issue.
While the amici and parties have differing views on the merits, of
course, they all agree that the constitutional questions this case presents
meet our jurisdiction. See Tex. Gov’t Code § 22.001(a) (granting this
Court jurisdiction over questions of law “important to the jurisprudence
of the state”). Based on the helpful briefing they have all submitted, I
tend to agree. I nevertheless concur in the denial of the petition for
review. Given the importance of the issue, the unusual feature of a
respondent inviting the Court to reconsider its win in the lower court, and
the broad participation of amici, I write separately to address why I, at
least, regard the denial of today’s petition as proper. It expresses no
comment by the Court on the merits of any issue nor suggests that the
Court will not take up the principal constitutional issue in a future case.
Bound up in this appeal are complex anterior questions of
administrative exhaustion and enforcement. The case has the added
complication that there are two municipal ordinances at issue, only one
of which the homeowners directly challenged, but both of which we would
have to interpret. Had the City prevailed as to either ordinance (or the
other issues), the homeowners would lack recourse. The City, however,
can adopt new regulatory measures if it deems it necessary to do so.
This case, therefore, starts out as a less-than-ideal vehicle for
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resolving the constitutional issues that are presented. But I think there
is even more, because it may also be premature for us to render a final
decision that binds all our cities, the legislature, and the lower courts.
Given the seeming prevalence of short-term rental bans, and of the
opposition against them, I am confident that other cases—unburdened
by potentially dispositive collateral questions—will lead to a better
vehicle for this Court to address the bans’ constitutionality.
Waiting for such a case may provide more time for other lower
courts to opine on the issue, for one thing. See, e.g., Zaatari v. City of
Austin, 615 S.W.3d 172 (Tex. App.—Austin 2019, pet. denied). It may
also allow advocates and scholars to more fully develop the original—and
perhaps distinct—meaning of the Takings and Due Course of Law
Clauses of the Texas Constitution, which play such a key role in the
parties’ arguments here. See City of Baytown v. Schrock, 645 S.W.3d 174,
183 (Tex. 2022) (Young, J., concurring) (emphasizing the textual and
historical differences between the Texas and federal Takings Clauses);
Tex. Dep’t of State Health Servs. v. Crown Distrib. LLC, 647 S.W.3d 648,
665 (Tex. 2022) (Young, J., concurring) (noting that “[f]uture cases will
require us to” consider “what the due-course clause meant in 1876 and
whether there is any good reason for it to mean anything different today”).
Until then, we cannot be confident that our review will allow us to
offer meaningful and reliable guidance to the many stakeholders who
hold fervent positions on the legality of and wisdom behind short-term
rental bans. For now, therefore, I take no position on whether the
homeowners have asserted viable constitutional claims against the City
or whether the anterior issues I noted above would have ultimately
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precluded the Court from reaching them had we granted review.
Part of the chief appeal of the parties’ joint request that we take
this case is that the issue is prevalent and important. I believe them. If
that premise is right, then plenty of cases will come. If they do not, then
today’s perceived importance and urgency will have turned out to be
illusory. Either way, our State will be better served by a measure of
patience from this Court, as frustrating as it may be to us and, even more,
to the parties to this case. I accordingly concur in the denial of the petition
for review.
Evan A. Young
Justice
OPINION FILED: June 16, 2023
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