Rawnda Draper, Mark Scott, Megan Scott, Jeremy Fenceroy, and Bradley Herbert v. City of Arlington, Texas, and W. Jeff Williams, Mayor of the City of Arlington

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00410-CV
___________________________

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

On Appeal from the 67th District Court
Tarrant County, Texas
Trial Court No. 067-310481-19

Before Kerr, Bassel, and Womack, JJ.
Opinion by Justice Kerr
 OPINION

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

1
An STR is “[a] residential premise[s], or portion thereof, used for lodging
accommodations for occupants for a period of less than thirty (30) consecutive days.”
Arlington, Tex., Ordinance 19-014 (Apr. 23, 2019).
2
The parties dispute whether the City’s pre-amendment Unified Development
Code had or had not allowed STRs as a permitted use. This issue is irrelevant to our
resolution of this appeal.

2
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

3
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (providing for
interlocutory appeal from a trial-court order granting or refusing a temporary
injunction).

3
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.

4
 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;

Like the Zoning Ordinance, the STR Ordinance also bans the operation of
4

unpermitted STRs. See Arlington, Tex., Ordinance 19-022, § 3.01.

5
 • 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

6
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

issues 6:

• 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

5
None of the Homeowners own this STR.

In addition to the parties’ briefs, we have received amicus briefs supporting
6

the Homeowners from the Texas Association of Realtors and the State of Texas. See
Tex. R. App. P. 11.

7
 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.

8
proceeding) (quoting Janus Films, Inc. v. City of Fort Worth, 358 S.W.2d 589, 589 (Tex.

1962)).

Whether to grant or deny a temporary injunction is within the trial court’s

sound discretion. Butnaru, 84 S.W.3d at 204. A trial court abuses its discretion if it

rules in an arbitrary manner or without reference to guiding rules and principles. Id. at

211. “Although a trial court does not abuse its discretion by basing its temporary

injunction ruling on conflicting evidence or when some evidence of a substantive and

probative character exists to support its decision, a trial court does abuse its discretion

by misapplying the law to established facts.” T.L. v. Cook Children’s Med. Ctr.,

607 S.W.3d 9, 34 (Tex. App.—Fort Worth 2020, pet. denied), cert. denied, 141 S. Ct.

1069 (2021). “We review de novo any question-of-law rulings necessary to resolve

whether a temporary injunction should issue.” Id.

To obtain a temporary injunction, an applicant must plead and prove (1) a

cause of action against the defendant; (2) a probable right to the relief sought; and

(3) a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at

204; Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 220 (Tex. App.—

Fort Worth 2009, pet. denied). The applicant has the burden of production to offer

some evidence on each of these elements, see In re Tex. Nat. Res. Conservation Comm’n,

85 S.W.3d 201, 204 (Tex. 2002) (orig. proceeding), but he is not required to prove that

he will ultimately prevail at trial on the merits, only that he is entitled to preservation

of the status quo until then, Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). We thus

9
do not review the underlying case’s merits, and we “will not assume that the evidence

taken at a preliminary hearing will be the same as evidence developed at a full trial on

the merits.” Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978).

A probable right of recovery is shown by alleging a cause of action and

presenting evidence tending to sustain it. Frequent Flyer Depot, 281 S.W.3d at 220. To

prove probable injury, an applicant must show that he has no adequate remedy at law.

Savering v. City of Mansfield, 505 S.W.3d 33, 49 (Tex. App.—Fort Worth 2016, pet.

denied) (op. on reh’g). An injury is irreparable if damages would not adequately

compensate the injured party or if they cannot be measured by any certain pecuniary

standard. Butnaru, 84 S.W.3d at 204; Frequent Flyer Depot, 281 S.W.3d at 220.

When, as here, the trial court does not make findings of fact or conclusions of

law in support of its temporary-injunction ruling, we must uphold the trial court’s

order on any legal theory that the record supports. Davis, 571 S.W.2d at 862; Henry F.

Coffeen III Mgmt., Inc. v. Musgrave, No. 02-16-00070-CV, 2016 WL 6277375, at *2 (Tex.

App.—Fort Worth Oct. 27, 2016, no pet.) (mem. op.).

III. Discussion

A. The Homeowners’ Due-Course-of-Law Claim

In the Homeowners’ first issue, they argue that they are likely to prevail on

their request for a declaration that as applied to them, the Zoning Ordinance violates

their substantive-due-course-of-law rights under Article 1, Section 19 of the Texas

Constitution because (1) the Homeowners have a vested right to lease their property

10
and (2) the Zoning Ordinance is not rationally related to a legitimate governmental

interest. 7 See Tex. Const. art. I, § 19 (“No citizen of this State shall be deprived of life,

liberty, property, privileges or immunities, or in any manner disfranchised, except by

the due course of the law of the land.”). The Homeowners pleaded that the City’s

claimed “legitimate interest in establishing noise and occupancy regulations . . . simply

does not justify the wholesale elimination of [the Homeowners’] right to rent their

homes for less than thirty days (in the case of rentals outside the STR Zone)” and that

the Zoning Ordinance’s “blanket prohibition on rentals outside of the STR [Z]one is

not rationally related to the protection of public health, safety[,] or welfare, and is

unduly burdensome when considered in light of the alleged government interests it is

designed to address.” See Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69,

87 (Tex. 2015). On appeal, the Homeowners do not argue that the Zoning Ordinance

is unduly burdensome, but they maintain that its STR limitations are not rationally

related to a legitimate governmental interest. Because whether the Zoning Ordinance

rationally relates to a legitimate governmental interest is dispositive of the

Homeowners’ first issue, we address that question first.8

Although the Homeowners also pleaded that the STR Ordinance violates their
7

substantive-due-course-of-law rights, they do not argue on appeal that they are likely
to prevail on this claim.
8
Although at this stage of the proceedings we need not reach the issue of
whether the Homeowners have a vested right to lease their properties, we note that
within their vested-rights discussion, the Homeowners spend several pages discussing
Village of Tiki Island v. Ronquille, 463 S.W.3d 562 (Tex. App.—Houston [1st Dist.]

11
 Ordinances are presumed to be constitutional. See id.; City of Brookside Vill. v.

Comeau, 633 S.W.2d 790, 792 (Tex. 1982). To overcome this presumption, the

Homeowners—in advancing an as-applied challenge under the Texas Constitution’s

substantive-due-course-of-law requirement—must prove either that “the statute’s

purpose could not arguably be rationally related to a legitimate governmental interest”

or that “when considered as a whole, the statute’s actual, real-world effect as applied

to the challenging party could not arguably be rationally related to . . . the

governmental interest.” 9 Patel, 469 S.W.3d at 87.

“Texas due course of law protections in Article I, § 19, for the most part, align

with the protections found in the Fourteenth Amendment to the United States

Constitution.” Id. at 86. According to the Texas Supreme Court, an ordinance violates

due process if it “has no foundation in reason and is a mere arbitrary or irrational

exercise of power having no substantial relation to the public health, the public

2015, no pet.), in the context of explaining the Zoning Ordinance’s economic impact
and effect on the Homeowners’ investment-backed expectations. The State of Texas’s
amicus brief similarly discusses Tiki Island and the Zoning Ordinance’s economic
effects, expressly arguing that the Zoning Ordinance is a regulatory taking. But the
Homeowners have not pleaded a regulatory-takings claim.
9
Again, the Homeowners do not argue on appeal that the Zoning Ordinance is
unduly burdensome. See Patel, 469 S.W.3d at 87 (stating that a “proponent of an as-
applied challenge” under the Texas Constitution’s substantive-due-course-of-law
requirement can overcome a statute’s presumptive constitutionality by proving that
“when considered as a whole, the statute’s actual, real-world effect as applied to the
challenging party . . . is so burdensome as to be oppressive in light of” a legitimate
governmental interest).

12
morals, the public safety[,] or the public welfare in its proper sense.” Mayhew v. Town of

Sunnyvale, 964 S.W.2d 922, 938 (Tex. 1998) (quoting Nectow v. City of Cambridge,

277 U.S. 183, 187–88, 48 S. Ct. 447, 448 (1928)). To pass constitutional muster, an

ordinance must be “designed to accomplish an objective within the government’s

police power” and be rationally related to the ordinance’s purpose. Id. If it is at least

“fairly debatable” that the ordinance was rationally related to a legitimate government

objective, the ordinance must be upheld. Id. We are not concerned with whether the

ordinance was effective; we ask only if the City could rationally have believed at the

time of enactment that the ordinance would promote its objective. See id. We will not

set aside an ordinance unless it is clearly arbitrary and unreasonable.10 See id.; see also

City of San Antonio v. TPLP Office Park Props., 218 S.W.3d 60, 64–65 (Tex. 2007) (“The

exercise of police power by a city must accord with substantive due process principles,

that is, it cannot be arbitrary and unreasonable.”).

Whether an ordinance violates due course of law is a legal question, but “the

determination will in most instances require the reviewing court to consider the entire

record, including evidence offered by the parties.” Patel, 469 S.W.3d at 87; see TPLP

Office Park Props., 218 S.W.3d at 65 (“The trial court resolves disputed fact issues, but

the ultimate question of whether an action or ordinance regulating property violates

due process is a question of law.” (citing Mayhew, 964 S.W.2d at 932)).

10
Here, of course, we are not called on to make any ultimate merits-based
decisions.

13
 The City argues that the Zoning Ordinance is related to the following

governmental interests: (1) safeguarding the life, health, safety, welfare, and property

of STR occupants, neighborhoods, and the general public and (2) minimizing the

adverse impacts resulting from increased transient rental uses in neighborhoods that

were planned, approved, and constructed for single-family residences. These purposes

are legitimate governmental interests. See TPLP Office Park Props., 218 S.W.3d at

65 (citing Mayhew, 964 S.W.2d at 934, 938); see also Vill. of Belle Terre v. Boraas, 416 U.S.

1, 9, 94 S. Ct. 1536, 1541 (1974) (noting that a city’s police power “is ample to lay out

zones where family values, youth values, and the blessings of quiet seclusion and clean

air make the area a sanctuary for people”). The Homeowners assert that the City

introduced no evidence demonstrating that STRs cause “residential disharmony to a

different extent than other properties” and that unspecified “state laws and local

ordinances already prohibit all of the conduct the City cites to justify its ban.” Even if

the latter is true,11 the City did present evidence that STRs can disrupt residential

neighborhoods and that restricting STRs to the STR Zone and certain zoning districts

is rationally related to the City’s objectives. 12

The Homeowners have not pointed us to any such state laws or City
11

ordinances.

The Homeowners cite Zaatari v. City of Austin, 615 S.W.3d 172 (Tex. App.—
12

Austin 2019, pet. denied)—a case involving a challenge to the City of Austin’s STR
ordinances—in support of their argument that the Zoning Ordinance is not rationally
related to a legitimate governmental interest. The Homeowners rely on the Zaatari
opinion’s analysis of the Austin STR owners’ claim that Austin’s ordinance banning

14
 Garcia, who lived in an otherwise quiet single-family residential neighborhood,

testified that the house across the street from hers had been used by its out-of-state

owner as an STR for the last two years. That STR housed as many as 15 guests and

was occupied 75 to 80 percent of the time. The STR had created noise disturbances, a

constant influx of new people in and out of the neighborhood, parking congestion,

and trash in the streets.13 The increased noise caused Garcia to call the police at least a

dozen times but to no effect because such calls are considered nonemergency ones,

meaning that the police do not show up right away. Garcia testified that the STR is

“great for the owner who’s making all this money, but it’s not great for the neighbors.

certain STRs was unconstitutionally retroactive. See id. at 188–92; see also Tex. Const.,
art. I, § 16 (prohibiting retroactive laws). To determine whether a law is
unconstitutionally retroactive, a court considers three factors: “(1) ‘the nature and
strength of the public interest served by the statute as evidenced by the Legislature’s
factual findings;’ (2) ‘the nature of the prior right impaired by the statute;’ and (3) ‘the
extent of the impairment.’” Id. at 188 (quoting Robinson v. Crown Cork & Seal Co.,
335 S.W.3d 126, 145 (Tex. 2010)). This test “acknowledges the heavy presumption
against retroactive laws by requiring a compelling public interest to overcome the
presumption.” Id. But the Homeowners have not pleaded a retroactivity claim, and
the retroactivity analysis fundamentally differs from the rational-basis analysis applied
in due-course-of-law challenges. We thus conclude that Zaatari is inapposite here.

We note, too, that despite the lack of a retroactivity claim, the State of Texas’s
amicus brief devotes several pages to arguing that the Zoning Ordinance is
unconstitutionally retroactive.

Garcia attributed the trash problem to STR tenants’ not knowing what day
13

the City collected trash and putting the trash “out on a Sunday and then leav[ing] for
the weekend, and [because] trash pickup is not until Wednesday[,] . . . the trash blows
up and down the street from Sunday to Wednesday when [the City] pick[s] it up.”

15
It’s a nightmare for the neighbors.”14 Garcia further testified that she attended three

or four city-council meetings to tell “her story” and that “[t]here were numerous

people who spoke and who had, unfortunately, very similar stories to [hers].”

Gertson, the assistant director of the City’s Department of Planning and

Development Services, testified that the City’s goal in developing the ordinances was

to find a “reasonable balance” between STR operators and homeowners. Gertson

worked with others in his department and with the City’s planning commission to

draft the Zoning Ordinance “after an extensive period of public comment, public

input, and work sessions with the legislative body and planning commission.”

According to Gertson, census-tract maps revealed a higher percentage of STRs

compared to single-family residences around the City’s entertainment district, which

contains such attractions as AT&T Stadium, Globe Life Park, Six Flags Over Texas,

and Hurricane Harbor. In a staff report that Gertson prepared for the city council, he

explained that “[t]he City’s entertainment and sports venues induce much of the STR

traffic.” He further explained that within the STR Zone, “STRs and those premier

attractions complement each other and provide mutual economic support” and that

“[u]nlike other residential areas of the City, the presence of tourists or short-term

guests on a frequent basis and the associated increase in activity are compatible with,

14
The Homeowners’ testimony at the temporary-injunction hearing showed that
their STRs did not disrupt the surrounding neighborhoods, in stark contrast to the
STR in Garcia’s neighborhood. It appears that the Homeowners had all operated their
STRs with virtually no complaints from their neighbors.

16
and do not disrupt, the intense activity taking place in proximity of the entertainment

and sports venues.”

Gertson testified that the City also chose to allow STRs in higher-density

residential areas—such as zoning districts in which townhomes, condominiums,

duplexes, and apartment complexes are permitted—and in commercial districts, but

not in lower-density residential districts, because the City believed that STRs were

more appropriate in higher-density residential areas than in lower-density ones.

Gertson explained that the Zoning Ordinance was designed to advance the health,

safety, and welfare of the City’s residents because it was designed to maintain the

stability, quiet, and repose of lower-density residential districts, which were

environments that the City had determined that it wanted to protect and preserve for

single-family homeowners.

Gertson admitted that no “data set” exists to substantiate the City’s claim that

excluding STRs allows neighborhoods “to maintain their quiet and repose.” But

Gertson testified that the Zoning Ordinance was developed from public comment

and input, and the city council’s findings in the Zoning Ordinance support his

testimony and the City’s objectives in enacting it:

• “[T]he City Council directed the Planning and Development Services

Department to research the nature and extent of short-term rentals

(STRs) in the City of Arlington, obtain public input, and develop fair and

balanced regulatory options, which provide opportunities for conducting

17
 STRs and protecting residential neighborhoods where STRs may be a

disruptive land use.”

• “[I]n open work session the City staff presented STR data and the results

of preference surveys reflecting a desire of citizens and homeowners to

maintain the integrity of single-family areas while allowing STRs within

certain areas of the city.”

• “[D]ata show that within the census tract surrounded by the city’s

entertainment district as much as 13.5 percent of the single-family

homes are currently used as STRs, which is by far the highest ratio of

STRs to single-family homes within the city, and that two adjacent

census tracts have the second and third highest ratios, both of which

include portions of the entertainment district.”

• “[B]ased upon such data, the City Council finds that the City of

Arlington’s entertainment and sports venues are the principal draw for

much of the city’s STR market and that both the venues and the STRs

operating near to the venues derive a mutual economic benefit from

locating within proximity to each other.”

• “[T]he City Council finds that it is reasonable and proper to foster this

mutual beneficial relationship by permitting short-term rentals to co-

locate in single-family neighborhoods within walking distance of the

18
 major sports and entertainment venues, and that walkable co-location

may serve a secondary purpose of incrementally reducing vehicular

congestion during sporting events.”

• “[D]ata also show that medium and higher density residential locations

across the city include thousands of parcels with single-family dwelling

units, and accordingly, the City Council finds that such locations are less

disrupted by the presence of STRs due to current density, and therefore,

provide adequate opportunities for STRs to operate outside the city’s

low-density residential neighborhoods.”

• “[A]fter notice and public hearing, and upon consideration of the

recommendation of the Commission and of all testimony and

information submitted during the public hearing, the City Council has

determined that it is in the best interest of the public and in support of

the health, safety, morals and general welfare of the citizens that [the

Zoning Ordinance] be approved.”

Arlington, Tex., Ordinance 19-014.

Along with Gertson’s and Garcia’s testimony, these findings indicate that the

City’s decision to allow STRs in the STR Zone and in high- and medium-density

residential areas but not in low-density residential areas is rationally related to

objectives within the City’s police powers. Accordingly, based on the evidence

19
presented at the temporary-injunction hearing, we conclude that the Homeowners

failed to present evidence tending to prove that the Zoning Ordinance violates their

substantive-due-course-of-law rights and thus failed to show that they were likely to

prevail on their request for a declaration that the Zoning Ordinance violates their

substantive-due-course-of-law rights under Article 1, Section 19 of the Texas

Constitution. We overrule the Homeowners’ first issue.

B. The Homeowners’ Assembly-Clause and Freedom-of-Movement Claims

In the Homeowners’ second issue, they contend that they are likely to prevail

on their claims that the STR Ordinance unconstitutionally restricts their tenants’

freedoms of assembly and movement because the ordinance unilaterally prohibits

assembly on private property at certain times. The Homeowners specifically challenge

Section 3.17 of the STR Ordinance, which provides: “It shall be unlawful for an

owner or person to allow the congregation of occupants outside at the premises

between the hours of 10:00 p.m. and 9 a.m.” Arlington, Tex., Ordinance 19-022,

§ 3.17. The Homeowners pleaded that this section of the STR Ordinance infringes on

their tenants’ “freedom of assembly rights protected by . . . Article I, Section 27 of the

Texas Constitution” and “coerces Plaintiff Homeowners to inflict such violations

against their tenants.” 15 See Tex. Const. art. I, § 27 (“The citizens shall have the right,

The Homeowners also pleaded a freedom-of-assembly challenge on their
15

tenants’ behalf to the STR Ordinance’s prohibition against owners’ and occupants’
allowing, advertising, or promoting special events to be held on the premises. See

20
in a peaceable manner, to assemble together for their common good; and apply to

those invested with the powers of government for redress of grievances or other

purposes, by petition, address or remonstrance.”). The Homeowners additionally

pleaded that Section 3.17 “also infringes STR tenants’ freedom of movement under

the Texas Constitution’s substantive due course of law clause and coerces [the

Homeowners] to enforce such an infringement against their own tenants.” See id. art.

I, § 19.

The City questions the Homeowners’ standing to bring their assembly-clause

claim, presumably because the Homeowners’ assembly-clause challenge is based on an

alleged violation of their tenants’—not the Homeowners’—assembly rights.16

Standing is a necessary component of subject-matter jurisdiction and thus cannot be

presumed or waived. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44,

445–46 (Tex. 1993). Standing requires a real controversy between the parties that will

be actually determined by the judicial declaration sought. Id. at 446. “[T]o challenge a

statute, a plaintiff must . . . suffer some actual or threatened restriction under that

statute” and “must contend that the statute unconstitutionally restricts the plaintiff’s

Arlington, Tex., Ordinance 19-022, § 3.19. They do not raise this challenge in this
appeal.
16
The Homeowners specifically pleaded that they were suing “on behalf of
tenants of their short-term rentals based on the STR Ordinance’s infringement upon their
tenants’ rights protected under the Texas Constitution which are being infringed by the STR
Ordinance’s requirement that Plaintiffs restrain their tenants’ freedoms of movement
and assembly.” [Emphasis added.]

21
rights, not somebody else’s.” Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504,

518 (Tex. 1995); see Patel, 469 S.W.3d at 77.

“Standing is a constitutional prerequisite to maintaining suit.” Tex. Dep’t of

Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004). “The standing

requirement stems from two limitations on subject[-]matter jurisdiction: the

separation of powers doctrine and, in Texas, the open courts provision.” Tex. Ass’n of

Bus., 852 S.W.2d at 443. The open-courts provision provides that “[a]ll courts shall be

open, and [that] every person for an injury done him, in his lands, goods, person or

reputation, shall have remedy by due course of law.” Tex. Const. art. I, § 13. The

Texas Supreme Court has held that this provision “contemplates access to courts only

for those litigants suffering an injury.” Tex. Ass’n of Bus., 852 S.W.2d at 444 (emphasis

added).

Here, the Homeowners pleaded in the trial court and argue on appeal that

Section 3.17 of the STR Ordinance violates the assembly and movement rights of

their STR tenants. They do not contend that the ordinance violates their own

assembly and movement rights. See Garcia, 893 S.W.2d at 518 (stating that standing to

challenge a statute requires that a plaintiff contend that the statute unconstitutionally

restricts his rights, not someone else’s). The Homeowners suggest that they have

standing to raise a constitutional challenge on their tenants’ behalf because

“[r]egulations infringing [on] the constitutional rights of a group may be challenged by

a third party if such party is tasked with enforcing the unconstitutional law through

22
his or her own compliance.”17 To support this contention, the Homeowners cite

Eisenstadt v. Baird, in which the Supreme Court allowed a distributor of contraceptives

to assert unmarried distributees’ rights because of the litigation’s impact on third-party

interests.18 405 U.S. 438, 445–46, 92 S. Ct. 1029, 1034–35 (1972) (citing Griswold v.

Connecticut, 381 U.S. 479, 85 S. Ct. 1678 (1965)). But the Homeowners do not cite nor

have we found any Texas state-court cases permitting a party to challenge a statute’s

constitutionality based on its alleged violation of a third party’s constitutional rights.

The Homeowners pleaded—and maintain on appeal—that Section 3.17 of the

STR Ordinance unconstitutionally restricts only their tenants’ assembly and

movement rights under the Texas Constitution, and we thus conclude that they lack

17
We note that both parties raise standing only in passing and that neither the
Homeowners nor the City briefed the issue, despite its importance. But this is of no
moment because, as noted, standing is a component of subject-matter jurisdiction,
and thus can be “raised for the first time on appeal by the parties or the court.” Tex.
Ass’n of Bus., 852 S.W.2d at 446.

As one federal district court has explained,
18

There are two types of cases involving jus tertii standing: (1) where the
litigants challenge statutes that regulate their activity and thereby violate
the rights of third parties; and (2) where litigants seek to assert only the
rights of third parties being violated by a statute. In the first, exemplified
by Griswold and Eisenstadt, standing depends upon whether the litigant’s
relationship with [the] third party is such that “the enjoyment of the
right is inextricably bound up with the activity the litigant wishes to
pursue.” In the second, standing depends on whether the third party is
able to assert the right before the court on his own behalf.

Dickerson v. Bailey, 87 F. Supp. 2d 691, 702 (S.D. Tex. 2000) (footnote omitted)
(citations omitted).

23
standing to bring these claims on their tenants’ behalf because the Homeowners are

not contending that the statute unconstitutionally restricts their rights, but someone

else’s.19 See Garcia, 893 S.W.2d at 518. Accordingly, we conclude that the Homeowners

have failed to show on this record and as their claims are currently pleaded that they

will likely prevail on their assembly-clause and freedom-of-movement claims because

they lack standing. We thus overrule the Homeowners’ second issue.

C. The Homeowners’ Equal-Protection Claim

The Homeowners argue in their third issue that they are likely to prevail on

their claim that as applied to them, the Zoning Ordinance and the STR Ordinance

violate their equal-protection rights under the Texas Constitution by treating STR

renters and landlords differently from those in long-term rental situations without

compelling evidence justifying this “disparate treatment.” See Tex. Const. art. I,

§ 3 (“All free men, when they form a social compact, have equal rights, and no man,

or set of men, is entitled to exclusive separate public emoluments, or privileges, but in

consideration of public services.”). The Homeowners assert that both ordinances treat

short-term and long-term rental activity differently “by restraining and even

19
In their briefing on this issue, the Homeowners rely on the Zaatari opinion’s
analysis of the Austin STR owners’ assembly-clause challenge to the Austin STR
ordinance. See 615 S.W.3d at 192–202 (analyzing the Texas Constitution’s assembly
clause and concluding that a section of the Austin STR ordinance infringed on STR
owners’ and their tenants’ assembly rights). The City of Austin contested the STR
owners’ right to raise constitutional claims on their tenants’ behalf, but because at
least one of the property owners was also an STR tenant, the Zaatari court concluded
that she had standing to pursue those claims. See id. at 183.

24
prohibiting, in some areas, STR activity” and that there is no evidence demonstrating

“a rational relation between the restrictions imposed and the interests sought.”

A colorable as-applied equal-protection claim requires that the government

treat the claimant differently from other similarly situated landowners without any

reasonable basis. Mayhew, 964 S.W.2d at 939. Unless the challenged ordinance

discriminates against a suspect class, the ordinance generally must only be rationally

related to a legitimate state interest to survive an equal-protection challenge. 20 Id.

“Economic regulations, including zoning decisions, have traditionally been afforded

only rational relation scrutiny under the equal protection clause.” Id.

Here, the Homeowners assert that the ordinances “plainly treat” them

differently from property owners leasing their properties to tenants for more than

30 days. But the Homeowners offer no argument or authority or point to any facts

demonstrating that they are similarly situated to property owners who lease their

properties long-term. Even if they had, the Homeowners’ equal-protection claim still

requires them to show that the Zoning Ordinance and the STR Ordinance are not

rationally related to legitimate state interests. See id. As noted, the City’s stated

legitimate governmental interests are (1) safeguarding the life, health, safety, welfare,

and property of STR occupants, neighborhoods, and the general public and

(2) minimizing the adverse impacts resulting from the increase in transient rental uses

20
The Homeowners did not assert that either ordinance discriminates against a
suspect class.

25
in neighborhoods planned, approved, and constructed for single-family residences.21

The Homeowners argue that there is no evidence demonstrating a rational basis

between these interests and the two ordinances, specifically that (1) there was no basis

for the 30-day cutoff between STRs and long-term rentals, (2) there was no evidence

justifying the prohibition of STRs in low-density residential areas outside the STR

Zone, and (3) there was no evidence that STR tenants “are more prone to disruptive

behavior [than long-term tenants] and should be subject to the restrictions imposed

upon them by [the STR Ordinance].”

Regarding the 30-day cutoff between STRs and long-term rentals, Gertson

testified that “in planning, in land use regulation, [the cutoff is] based upon a common

distinction made between transient occupancy versus longer-term occupancy.”

21
As one out-of-state court has observed,

It stands to reason that the “residential character” of a
neighborhood is threatened when a significant number of homes . . . are
occupied not by permanent residents but by a stream of tenants staying a
weekend, a week, or even 29 days. Whether or not transient rentals have
the other “unmitigatable [sic], adverse impacts” cited by the Council,
such rentals undoubtedly affect the essential character of a
neighborhood and the stability of a community. Short-term tenants have
little interest in public agencies or in the welfare of the citizenry. They do
not participate in local government, coach little league, or join the
hospital guild. They do not lead a Scout troop, volunteer at the library,
or keep an eye on an elderly neighbor. Literally, they are here today and
gone tomorrow—without engaging in the sort of activities that weld and
strengthen a community.

Ewing v. City of Carmel-By-The-Sea, 286 Cal. Rptr. 382, 388 (Cal. Ct. App. 1991).

26
Additionally, as more than one Homeowner testified, a rental for fewer than 30 days

triggers the imposition of hotel-occupancy taxes. See Tex. Tax Code Ann.

§§ 156.001(b), .051. Further, as the Zoning Ordinance’s recitals and Garcia’s

testimony exemplify, the use of single-family residences as STRs can negatively affect

the residential character of neighborhoods. We thus conclude that the 30-day

distinction between STRs and long-term rentals is rationally related to the City’s

legitimate governmental interests.

Similarly, the Zoning Ordinance’s prohibition against STRs outside the STR

Zone and medium-to-high-density residential areas is rationally related to legitimate

governmental interests.22 As set out in our due-course-of-law analysis, the Zoning

Ordinance’s establishment of the STR Zone near the City’s entertainment district

balanced the economic benefit of allowing STRs within the City with citizens’ and

homeowners’ desires to maintain the integrity of single-family neighborhoods.

Census-tract maps reflected a higher percentage of STRs compared to single-family

residences around the City’s entertainment district. As Gertson explained in his staff

report, “[t]he City’s entertainment and sports venues induce much of the STR traffic.”

He further explained that within the STR Zone, “STRs and those premier attractions

complement each other and provide mutual economic support” and that “[u]nlike

other residential areas of the City, the presence of tourists or short-term guests on a

The Homeowners’ argument implies that STRs are allowed only in the STR
22

Zone. But, as noted, STRs are allowed in certain zoning districts in the City.

27
frequent basis and the associated increase in activity are compatible with, and do not

disrupt, the intense activity taking place in proximity of the entertainment and sports

venues.”

Finally, the STR Ordinance’s restrictions on STRs are rationally related to

legitimate governmental interests. The Homeowners specifically assert that there is no

rational relationship because there is no evidence that STRs are “more prone to

vehicle over-parking than other residences”; “[t]here is no better justification given for

preventing property owners from converting additional space in their homes into

spare bedrooms for STR use than there is for denying the same right to those owners

wishing to lease to long-term tenants”; and “there is no cognizable reason” to limit

the number of tenants who can stay in an STR but not limit the number in a long-

term rental. The City, however, presented evidence establishing a rational relationship

between the STR Ordinance’s restrictions and its legitimate governmental interests of

minimizing STRs’ adverse impacts on neighborhoods planned, approved, and

constructed for single-family residences and of safeguarding the life, health, safety,

welfare, and property of STR occupants, neighborhoods, and the general public.

Regarding her neighborhood’s STR, Garcia testified that on most weekends,

between six and twelve cars were parked on the street, and on one weekend, there

were more than twenty-five cars parked on the street. And while Gertson admitted

there was no “data set” to quantify all the following city-council findings supporting

28
the STR Ordinance, he testified they were made after considering testimony and input

from citizens and other information gathered by City staff:

• “[T]he increase in the number of persons or entities desiring to rent their

residential properties has led to the proliferation of transient and vacation

rental uses within neighborhoods previously planned, approved and

constructed for use as single-family residences.”

• “[T]he use of single-family residences by individuals for short periods of time

may negatively impact the residential character of many neighborhoods by

reducing communication and accountability between permanent residents by

partially substituting permanent residents with transient visitors.”

• “[T]he regulation of the use and operation of such ‘short-term rental’ property

is intended to prevent the further erosion of pre-existing and stable single-

family neighborhoods, and further advance the City Council’s objective of

championing great neighborhoods.”

• “[T]he rise of substitute land uses for residential property contributes to the

shortage of affordable housing, both ownership and long-term rental.”

• “[T]he Unified Development Code did not allow the use of property zoned

residential to be used for transient, short-term stays for less than 30 days.”

29
 • “[T]he enforcement of land use regulations in residential property poses unique

enforcement difficulties and merits a stand-alone ordinance to provide clear

rules for such rentals.”

• “[T]he City Council reviewed and studied a variety of possible regulations for

short-term rentals, and determined that said temporary use should be restricted

to nonresidential, mixed-use[,] and multi-family zoning use districts, and to

single-family zoning use districts adjoining the major sports complex area of

the City of Arlington.”

• “[T]he requirement of an annual short-term rental permit that could be

suspended or revoked in the event of repeated nuisance violations related to

noise, trash, parking, etc. [is appropriate].”

• “[R]egulating the short-term rental of residential property is necessary for the

health, safety and welfare of the general public, the promotion of consistent

land uses and development, and the protection of landowners and residents of

the City of Arlington.”

Arlington, Tex., Ordinance 19-022.

Along with Gertson’s and Garcia’s testimony, these findings indicate that the

City’s decisions to restrict STRs to the STR Zone and certain zoning districts and to

regulate the operation of STRs are rationally related to objectives within the City’s

police powers. Accordingly, based on the evidence presented at the temporary-

30
injunction hearing, the Homeowners failed to offer evidence tending to prove that

either the Zoning Ordinance or the STR Ordinance violates their equal-protection

rights and thus failed to show that they were likely to prevail on their request for

declarations that both ordinances violate those rights under Article 1, Section 3 of the

Texas Constitution. We overrule the Homeowners’ third issue.

IV. Conclusion

Having overruled the Homeowners first three issues, which are dispositive of

their challenge to the trial court’s order denying their temporary-injunction request,23

we affirm the trial court’s order.

/s/ Elizabeth Kerr
Elizabeth Kerr
Justice

Delivered: July 15, 2021

See Tex. R. App. 47.1.
23

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