CIVIL SUITS
There is a lawsuit moving through the courts that could have major implications on the ability of the government to impose regulations on what one can do on their own private property. In the suit Kristy Kay Money and Rolf Jacob Straubhaar v. city of San Marcos, the plaintiffs’ Motion for Summary Judgement states, “This civil rights lawsuit challenges a local ordinance that requires private property owners to keep unwanted objects on their property for purely aesthetic purposes.” The unwanted object is a letter Z on the wrought iron balcony relating to a previous homeowner Frank Zimmerman, who had affiliations with the Ku Klux Klan. The city has local ordinances meant to maintain the appearance of homes in historic districts that must be applied fairly across the board, but the plaintiffs question the merits be- hind their ability to do so.
“Most Americans, when they buy a home, they assume that they’re going to have autonomy over what their home looks like,” said Chance Weldon, The Texas Public Policy Foundation litigation director and legal representation for the Moneys. “They don’t think that they have to do that with the government, that the government’s going to act like the landlord over the property. It’s part of the American dream to really have some autonomy over what your home looks like.”
The city of San Marcos stated that it “does not comment on pending litigation and does not have any information to offer at this time.”
According to the Motion for Summary Judgement filed by the Moneys against the city in June of 2023, “under a local ordinance, any aesthetic change to the front of their home must receive approval by the city — which the city refuses to grant. As a result, Homeowners are forced to maintain an unwanted object on their home that is contrary to their values in order to appease the aesthetic sense of the City.” It further states that the home is in a historic district but is not itself considered historic. The plaintiffs ask the court to consider whether “an ordinance, which requires a property owner to keep and maintain an object on their property for the public benefit without compensation, violate[s] the takings clause of the U.S. Constitution.” According to the National Constitution Center website, the takings clause states, “Nor shall private property be taken for public use, without just compensation.”
Weldon explained further how he believes his client’s constitutional rights are being violated.
“The federal constitution says, anytime the government makes you keep something on your property for a public benefit — whatever that public benefit might be — the public has to pay for that,” Weldon said.
The motion for summary judgement also points to Article I Section 19 of the Texas Constitution, which states that “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.”
Weldon said that the reason he believes houses have historically been inexpensive in Texas compared to other states is that, under the Texas Constitution, it doesn’t allow “arbitrary restrictions” on private property rights.
“Under the Texas Constitution, if the government wants to restrict your property, they have to show that you’re doing something harmful. The zoning power is about policing things that harm your neighbors,” Weldon said.
The city of San Marcos, as well as many cities throughout the state, has these regulations on the books in order to maintain the look of the historic districts in town. The motion stated that under the San Marcos Development Code, “a property owner may not, among other things, alter, relocate or demolish any visible portion of a property within a historic district without first receiving a ‘certificate of appropriateness’ from the Historic Preservation Commission.” The property owner must pay $165 for the certificate and the commission can deny the applications if it deems the proposed changes are incompatible with the “architectural or cultural character” of the district as defined by 4.5.2.1 of the development code.
According to San Marcos Development Code 4.5.2.1, “The purpose of HD, Historic District, is to promote the educational, cultural and economic welfare of the public and of the City by preserving, conserving, and protecting Historic Structures, Streets and neighborhoods that serve as visible reminders of the history and cultural heritage of the City, the State and the United States. Furthermore, it is the purpose of HD, Historic District, to strengthen the economy of the City by stabilizing and improving property values in historic areas and to encourage new Buildings and developments that shall be compatible with the existing historic Buildings and squares.” There are rules about change in design, material or outer appearance in that section.
The motion also cited San Marcos Development Code 2.5.5.4, which states certain criteria to be used to determine whether the certificate would be approved, including the impact of approval on historical, architectural or cultural character of the historic district, compliance with historic district regulations and whether the property owner would suffer extreme hardship without approval.
According to the appeal filed on Feb. 7 of this year, the city of San Marcos responded to the lawsuit by filing a Rule 12(b)(1) motion to dismiss. Its argument was that the federal takings claims were “not prudentially ripe.” According to the Cornell Law website, a claim may be unripe if it is based upon future events that may not occur as predicted or at all. The city also argued that the Moneys failed to exhaust administrative remedies by filing an appeal with the city before filing the Texas Constitution claims. A magistrate judge recommended a sua sponte dismissal of the full complaint under Rule 12(b)(6) failure to state a claim. According to the Cornell Law School website, sua sponte means “of one’s own accord “ and is used to indicate that a court has taken notice of an issue on its own motion, without prompting or suggestion from either party. The Moneys filed 27 pages of objections to the magistrate’s judges report and recommendation, but the district court overruled the objections without comment and adopted the recommendation. The Moneys then filed an appeal.
Weldon explained what could happen from this point forward. Currently the opinion was remanded, or sent back down to the district court, so that it can issue a final judgement on the merits of the case. He added that he doesn’t know exactly how long that will take or what it will look like.
“My understanding is the city may ask for what’s called discovery to figure out some of the facts and may have some fights about that,” Weldon said. “It doesn’t look like — right now at least — that the city is going to try to appeal this initial decision up to the United States Supreme Court. They’re going to go back down, and it looks like they will try to have a fight about this in front of the district court. And we’ll go back down. We’ll file more briefs in front of the district court. We’ll hash out any sort of evidentiary fights that might happen, and then it’ll probably — one way or the other — go back up to the Fifth Circuit Court of Appeals and then maybe back up to the United States Supreme Court.”
Weldon said if it does eventually go to the Supreme Court and his clients were victorious, that would mean city governments would have less say over what one does with their private property.
“It’s important to point out, though, that, historically, cities didn’t have this power,” Weldon said. “This is a novel innovation, where cities are claiming to have power that historically never had before.”
