"A ruler who lacks understanding is a great oppressor,
But he who hates covetousness will prolong his days."
Last winter, the Austin City Council banned a popular type of vacation residency ("Type 2" Short Term Rentals or "STR's"; aka. the anti-AirBnb Ordinance) within city limits. In so doing, they violated the Fourth and Fourteenth amendments to the United States Constitution, but they didn't expect anyone to fight back. This morning four STR owners, with assistance from the Texas Public Policy Foundation, fought back.
The lawsuit, Zaatari et. al vs City of Austin et. al, challenges the constitutionality of the city's regulation. Specifically, by giving the Austin code department (yeah, THAT Austin code department) unlimited jurisdiction to perform warrantless searches on private residences to enforce the ordinance, the city violated the fourth amendment's provision against unreasonable searches. In addition, by drawing an arbitrary distinction between residential leases under 30 days ("short-term") and leases over 30 days ("long-term"), the city violated the fourteenth amendment's equal protection clause.
The anti-AirBnb ordinance was part of council's bizarre campaign against innovation and the sharing economy. Not that it's relevant to the underlying privacy and property rights issues, but fewer than 10% of all complaints ever filed against STR's have been related to noise or other 'bad neighbor' issues and there have been literally zero citations against STR's for those issues. Readers are welcome to speculate about council's underlying motivation, but doing so is beyond the scope of this report.
In addition to a media conference call this morning, TPPF also helped arrange a media availability at an STR property owned by one of the plaintiffs this afternoon. The property, located in Ann Kitchen's (yeah, we know) district, is owned by Ahmed Zaatari. Zaatari, who immigrated from Lebanon in the late 1990's, converted the property to an STR about a year ago after he was laid off from an energy industry related job following the downturn in oil prices. Zaatari typically rents the property in increments of two to four days. In addition, Zaatari pays both property taxes and the City of Austin's 15% hotel occupancy tax. To illustrate to absurdity of the ordinance, consider this: at the peak, between three media camera crews, this author, Zaatari, and four TPPF staffers, at one point there were 13 people on-site, which actually violated the ordinance (*). Look at the picture above: Does it look like the property was overcrowded in any way, shape or form?!?
Most chillingly, Zaatari pointed out how the ordinance is "reminiscent of the system in Lebanon" where economic opportunity is doled out by political connections instead of merit. In Lebanon, "what matters is who you know" and "you had to put yourself in servitude to some political boss." Speaking of political bosses, Zaatari described a meeting he had with Ann Kitchen where she promised that council wouldn't attack "the good actors" (ie. the ones who actually follow the law and pay the city's taxes); we can see where that led.
We realized one final absurdity while we were at the property. The city of Austin has more restrictions on STR properties than it has on frat houses. Considering that the whole justification for this ordinance was cracking down on "party houses," that seems odd.
The city of Austin does not have authority to restrict private property rights in this manner. Doing so violates, at least, the fourth and fourteenth amendments. They weren't expecting anyone to fight back; they were wrong.
* - It wasn't planned that way, and there were 13 people on-site for less than ten minutes, but the fact that accidentally violated the ordinance during the media availability illustrates the silliness of the whole thing.