Texas Home Day Care

Home Day Cares Serve a Public Good

As jobs and schools closed or went remote throughout the pandemic, many people have become acutely aware of the shortage in affordable, quality childcare. But this issue is not new. Access to childcare has been diminishing for decades. ¹ Childcare can cost as much as college in many cities. ² A big contributor to the problem is burdensome zoning ordinances like those in Lakeway. ³

After being laid off during the pandemic, Bianca moved back by her family in West Austin, Texas, to start a business doing something she loved. Bianca saw that opening a home day care to care for some neighbors’ children as she stayed home with her own was the perfect opportunity to provide for her family. A lot of day cares are exorbitantly priced or have one adult for eight or nine children. Bianca knew she could provide a more personalized, nurturing care herself. She researched state laws, registered with Texas, and had her home inspected. By January 1, 2021, her business, Rainbow’s Edge Childcare, was ready to serve the community. Bianca offers care for between two and four children at a time, as she also watches her own two children. She is currently approved by the state to care for six children during the school day. The business was an instant success for the children and parents alike. One of Bianca’s clients even called her a “child whisperer,” she was so good with kids. ⁴

But Former Lakeway Mayor Joe Bain and a couple of his golf buddies did not see Bianca’s home day care as a welcome addition. They complained they could see and hear children sometimes as they ride their golf carts past Bianca’s house, and when they tee off on the 8th hole of their neighborhood course. So the City contacted Bianca to tell her she needed to apply for a permit for her home business.

Neighborhood Golfers Exploit Onerous Regulations to Shut Down Bianca’s Day Care

Bianca had no idea she needed a permit. She had checked with the county office of the Texas Health and Human Services and taken all the steps necessary to register her day care with the state. She first learned she needed a special permit from the city to run a home business when an inspector from the City’s Code Compliance Office contacted her. The inspector seemed eager to help her and Bianca was left with the impression the inspector would give her a permit in a matter of days. So Bianca thought the permit process was a mere formality. But suddenly, the City had scheduled Bianca’s permit for a full-blown hearing in front of the City’s zoning commission. City officials said that she was scheduled for a hearing because it had received a complaint against her.

At the hearing, Bianca made her case in favor of her permit. After she spoke, Bain took to the open mic to oppose her. Bain lives over 30 houses away from Bianca. But he complained that her business was interfering with his golfing. As Bain complained to the commission, Bianca’s day care meant that “there are gonna be toys out there, and they’re right on the golf course, which is another issue for me. … When you walk by, drive by, you can see the kids out playing there, which is fine but there is a noise issue there.” ⁵

Despite Bain being the only opponent at the hearing, the zoning commission denied Bianca her permit. Bianca had to hire an attorney for thousands of dollars and appeal the decision to the City’s Board of Adjustment. But at the hearing in front of the Board, Bain again spoke against her, still complaining about children affecting their golf game. Two other golfers (who came in the same car as Bain) also opposed Bianca, making similar comments, again complaining about children affecting their golf game.

One golfer said she is on the golf course behind Bianca’s house “five days a week.” She stated, “The toys and the swing set, that is one thing. . . But there is more than two children out there. So how are we supposed to know which ones are her children?” This opponent lives down the street from Bianca, with two homes and an intersection between them.

The third golfer—who lives 23 houses away from Bianca—complained that she can hear children yelling while she is on the golf course and that there are a number of toys in Bianca’s backyard. She emphasized that one day, she and her fellow players heard a child crying in the yard, which disturbed their playing.

After the golfers’ testimony, the Board affirmed the denial of Bianca’s permit.

The City’s Home Business Ordinance

In denying Bianca’s permit, the Commission and BOA relied on the City’s home business ordinance. The ordinance is one of the strictest home business ordinances in the country. As Lakeway’s current mayor, Tom Kilgore, testified during Bianca’s appeal, the ordinance’s criteria is “almost unachievable” and when read literally, would ban virtually all home business. In practice, the ordinance grants the City broad power and discretion to deny a permit to any home business they wish, including home businesses that are opposed by politically powerful people.

The City focused on three zoning criteria in denying Bianca’s permit: (1) that her business provides “services,” (2) that sometimes clients drive to and from Bianca’s house (although Bianca and her clients often just walk the children to and from her home), and (3) that the business is not “undetectable” by the public. The last criteria was the Commission and Board’ s main focus. They found that Bianca’s business was not undetectable because children and toys were in Bianca’s fenced backyard. The golfers and city officials even referred to these toys as her business “equipment.”

Lakeway’s Zoning Ordinance Is Unconstitutional

The due-process rights protected by the Texas Constitution’s “due course of law” provision include economic liberty and property rights. ⁶ A regulation violates due process if it is not rationally related to a legitimate government interest or if its real-world effect is so burdensome as to be oppressive in light of the purported government interest. ⁷ . Lakeway’s restrictive zoning ordinance for home businesses is an economic regulation that interferes with the economic liberty and property rights of homeowners like Bianca who want to run harmless businesses out of their homes.

For starters, Lakeway’s home-business requirements are not related to any legitimate governmental interest. A retired mayor’s desire to golf without seeing children’s toys outside any of the homes near the golf course is not a valid reason to prevent home businesses. Bianca’s day care is completely harmless to her neighbors, and Lakeway has no legitimate interest in preventing her from running it—even if it means she has six children in or outside of her hours, instead of just her own two children. The sound of children playing, and the sight of their toys, are normal and expected in a suburban community, and denying Bianca a permit for her day care does nothing to stop her own children from playing in her backyard. Likewise, a few cars coming to a house is typical of everyday suburban life that Lakeway has no legitimate interest in preventing.

In fact, the Texas Constitution expressly protects the right of people to peaceably assemble. Recently, the Texas Supreme held that this right applies most strongly on private property, including in the context of a home business. ⁸ .  Thus, Bianca has a right to gather her clients’ children at her home and in her backyard.

The Texas Constitution prevents cities like Lakeway from barring homeowners like Bianca from using their homes in harmless ways that generate income. Bianca is teaming up with IJ to make sure that Texas courts continue to protect economic liberty and property rights, as well as the right to assemble.

The Litigation Team

The litigation team consists of IJ Senior Attorney Erica Smith Ewing and IJ Attorney Jared McClain. Local counsel is Arif Panju, the Managing Director of IJ’s Texas Office.

The Institute for Justice

The Institute for Justice is a public-interest law firm that litigates nationwide to vindicate individual liberties. At no cost to clients, IJ has fought against similar laws that prevent individuals from using their homes to earn an honest living, such as the one in Nashville that is preventing a single father from using his garage as a recording studio and a widow from cutting her neighbors’ hair. Additionally, IJ is currently challenging other harmful zoning laws, such as the one being used to kick people out of their homes in Sierra Vista, Arizona, and the one that is threatening to put a small mechanic in Pasadena, Texas, out of business by requiring him to install 23 parking spaces he doesn’t need and can’t afford. And IJ stands ready to continue challenging such restrictions to help property and business owners oppose unconstitutional regulations on the right to use property in traditional ways and the right to earn an honest living.