Bianca King Plaintiffs Verified Complaint
Bianca King Plaintiffs Verified Complaint
Velva L. Price
District Clerk
D-1-GN-22-000793 Travis County
CAUSE NO. ________ D-1-GN-22-000793
Ruben Tamez
BIANCA KING,
IN THE DISTRICT COURT OF
Plaintiff,
COMES NOW, Plaintiff Bianca King who files her Verified Petition For Writ Of Certiorari,
Declaratory Judgment, and Application for a Temporary Restraining Order, Temporary Injunction,
and Permanent Injunctive Relief against Defendants City Of Lakeway, Texas; Lakeway City
Council; Lakeway Zoning & Planning Commission; Lakeway Board Of Adjustment; and Lakeway
Code Compliance Department. Plaintiff would show the Court the following:
I. INTRODUCTION
1. The City of Lakeway, Texas is forcing Plaintiff to shut down her small home
business, depriving Plaintiff of her primary source of income. The City’s actions are illegal and
unconstitutional.
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2. Plaintiff Bianca King is a single mom of two young children, ages 2 and 4. She
was laid off from her job during the pandemic, so she decided to support her family in the same
way that countless women have supported their families throughout history—by taking care of her
neighbors’ children. Bianca runs a small home daycare in which she takes care of two to four
children at a time. Her home daycare is approved and inspected by the State of Texas.
3. Bianca’s business allows her to earn a living while also staying home with her
children. Her clients are extremely happy with Bianca’s daycare, which provides an intimate and
loving setting for their children while they are at work. Bianca’s clients also feel grateful to have
found Bianca during the ongoing national childcare crisis, in which there is a severe shortage of
4. But not everyone likes Bianca’s business. The local country club has a golf course
behind Bianca’s home and Bianca’s backyard faces the tee box at the eighth hole. Three golfers
have complained to the City that hearing and seeing children playing in Bianca’s private backyard
interferes with their golf game. Leading this opposition is Joe Bain, the City’s former mayor.
While Mr. Bain lives over 30 houses away from Bianca, he is a regular golfer on the course.
5. After receiving a complaint, the City told Bianca she needed a “home occupation”
permit for her home business. Bianca assumed that applying for the permit would be a mere
formality. Instead, it led to a five-month administrative process, which included two public
hearings.
6. At the hearings, Bianca showed that her business was harmless and providing a
much-needed service. Photos of her home also showed it was well-kept and looked like a typical
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letters of support for Bianca, which sang her praises. Bianca’s clients also filed enthusiastic letters
of support. Even the City’s current mayor, Thomas Kilgore, spoke in support of Bianca’s business.
7. Yet the golfers also came to the hearings. At the first hearing, Mr. Bain was the
only person to oppose Bianca’s permit. Mr. Bain stated, “There are gonna be toys out there, and
they’re right on the golf course. . . . When you walk by, drive by, you can see the kids out playing
there, which is fine but there is a noise issue.” At Bianca’s second hearing, Mr. Bain and two other
golfers also opposed. As Mr. Bain stated, Bianca’s backyard “backed up to the tee box and the
noise is disturbing the players.” The other golfers made similar complaints.
8. Children playing with toys in backyards, however, is a normal part of suburban life.
Regardless of whether Bianca has a home daycare, there will still be children playing in her
backyard. After all, Bianca has two kids of her own and they have family and friends that often
come to visit. Bianca also would not change any of the toys or playthings in her backyard if she
9. Nevertheless, the Zoning and Planning Commission denied Plaintiff’s permit. The
10. 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.
It requires home businesses to meet a list of 19 separate provisions, which are almost impossible
to achieve. One provision even states that home businesses must be completely “undetectable,”
regardless of whether they are hurting anyone. The ordinance thus grants the City broad power
and discretion to deny a permit to any home business they wish, including home businesses that
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11. The City’s denial of Bianca’s permit is illegal and unconstitutional. The City’s
denial of Bianca’s permit is illegal pursuant to Tex. Loc. Gov’t Code Ann. § 211.011. The City
abused its discretion by denying a home-business permit just because it involved ordinary and
Bianca and on its face. The City’s home business ordinance violates Bianca’s right to substantive
due process under the Texas Constitution—specifically her substantive due process right to earn
an honest living. Tex. Const. art. I, § 19. The Texas Supreme Court recently reaffirmed that a law
violates the right to earn an honest living when either (1) the regulation is not rationally related to
a legitimate governmental interest or (2) the regulation’s actual, real-world effect as applied to the
oppressive in light of, the governmental interest. See Patel v. Tex. Dep’t of Licensing & Regul.,
469 S.W.3d 69, 87 (Tex. 2015). Here, the City’s ordinance cannot survive either prong.
under the right to peaceably assemble. Tex. Const. art. I, § 27. Texans have a fundamental right
to peaceably assemble, which includes the right to meet or congregate for shared welfare or
benefit. This right is strongest when persons assemble on their own private property, including as
part of a home business. See Zaatari v. City of Austin, 615 S.W.3d 172, 199–202 (Tex. App.—
Austin 2019, pet. denied). An ordinance infringing on this right is subject to strict scrutiny, and
14. Because the City denied Bianca’s permit on February 9, 2022, Bianca risks criminal
prosecution if she keeps her home business open. Bianca is now faced with the decision to either
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shut down and stop earning a living by caring for her neighbors’ children, or risk misdemeanor
charges and up to $2,000 in fines per day. See City Ordinance § 30.07.133.
15. After the February 9 hearing, Bianca twice reached out to the City Attorney and
Lakeway’s current mayor to see if they would agree to allow her to stay open until the end of
February while she considered her next steps. They have not responded. Meanwhile, Bianca has
observed the golfers who opposed her application watching her and her home. One of the golfers
asked Bianca when she would close down and if she would move out of town. Upon information
and belief, Mr. Bain and the other golfers are urging the City to prosecute Bianca immediately.
Upon information and belief, the City does in fact intend to immediately prosecute Bianca.
16. Plaintiff urges this Court to grant injunctive relief, declaratory relief, and nominal
damages of $1 against the Defendants. Otherwise, Bianca will be forced to shut down, losing her
17. This Court has subject-matter jurisdiction based on the Texas Constitution, the
Uniform Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code Ann. § 37.003, and Tex. Loc.
18. Defendant Lakeway Board of Adjustments filed its decision denying Plaintiff’s
permit on February 10, 2022, and Plaintiff properly filed this action within 10 days pursuant to
19. Venue is proper in Travis County under Tex. Civ. Prac. & Rem. Code Ann.
§ 15.002(a)(1)–(3).
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III. PARTIES
Named Plaintiff
20. Bianca King is a resident of Lakeway, Texas, and the sole owner and employee of
her home daycare business, “Rainbow’s Edge Family Childcare,” at 702 Vanguard Street,
Lakeway, Texas. Bianca owns the home at 702 Vanguard Street, which is also her primary
21. Defendant City of Lakeway is a home-rule city organized under the laws of Texas
and incorporated in Travis County, Texas. Pursuant to Tex. Civ. Prac. & Rem. Code Ann. §
17.024(b), the City may be served with citation through its mayor, clerk, secretary, or treasurer at
the City’s offices located at 1102 Lohmans Crossing Road Lakeway, TX 78734-4470.
22. Defendant Lakeway City Council is responsible for passing, modifying, and
repealing the City’s ordinances, including the City’s home occupation ordinance. The City
Council is also empowered to take action to prevent activity violating the City’s ordinances.
City Ordinance § 30.07.132. Its members may be served at the City’s offices located at 1102
home occupation permits after a public hearing. City Ordinance § 30.05.002(b). It is the entity
that denied Plaintiff’s home occupation permit on November 8, 2021. Its members may be served
at the City’s offices located at 1102 Lohmans Crossing Road Lakeway, TX 78734-4470.
appeals of the denial of home occupation permits. It is the entity that affirmed the denial of
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Plaintiff’s home occupation permit on February 9, 2022. Its members may be served at the City’s
25. Defendant Lakeway Code Compliance Department is responsible for enforcing the
City’s ordinances, including its permit requirement and other restrictions on home occupations.
The Department may be served at 1102 Lohmans Crossing Road Lakeway, TX 78734-4470.
26. Plaintiff intends to conduct Level 2 discovery under Rule 190.3 of the Texas Rules
of Civil Procedure.
V. FACTUAL ALLEGATIONS
27. Bianca King is single mom of two young children, ages 2 and 4. She grew up in El
Paso, Texas.
28. For the last decade, Bianca worked as senior program manager in the aerospace
industry in California. But then the pandemic hit and turned her life upside down. Bianca’s
employer laid her off during a series of layoffs. At the time, Bianca was on maternity leave with
29. Bianca decided to turn her lost job into an opportunity. She has a gift with children.
Prior to her aerospace career, she worked as a substitute teacher in the Austin Independent School
30. Bianca decided to move to the Austin area (where her parents and extended family
currently live) and open a home daycare. This would allow her to support her children doing
something she loved, while also being able to stay home with her children and be near her family.
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31. With this plan in mind, Bianca bought a home in Lakeway in August 2020. She
chose the home in part because it had a room that would make the perfect playroom for her
business: a large dining room that was full of light and fresh air.
32. Bianca also applied to the state to become an approved daycare. First, she was
approved in October 2020 as a “listed family home” after passing a background check and meeting
other requirements. This designation allowed her to care for up to three children unrelated to her.
A few months later, after talking a series of classes on childcare and safety at Texas A&M
University, and having her home inspected, she was approved by the state as a “registered child-
care home.” This designation allows her to take care of one additional preschool child, for a total
33. Bianca opened her business on January 1, 2021. Bianca cares for two to four
children at a time, in addition to her own two. She has no plans to take care of more children.
35. It is her primary source of income and she is the sole breadwinner for her small
family.
36. The children that Bianca cares for are four years old and under. They all live in the
37. Bianca often walks the children to and from their homes in a big stroller for pickups
38. Bianca’s clients love that Bianca gives their children an intimate and loving
environment close to home while the clients are at work. Bianca also cares for fewer children than
most other daycares, so the children in her daycare receive lots of personalized attention. Bianca
also reads to the children every day, allows no screen time, and serves the children organic food.
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39. Bianca’s daycare is a rare find; affordable and quality childcare is in short supply
40. The business’s success has also given Bianca an enormous sense of pride and self-
sufficiency.
41. The City Code regulates home businesses under its “home occupation” ordinance.
42. Bianca first learned of the City’s home occupation ordinance when she was
contacted by a code compliance inspector in the City’s Code Compliance Department on August
31, 2021.
43. The inspector sent her an email stating, “Lakeway Code Compliance has received
information regarding a day care being operated at 702 Vanguard. The City refers to this situation
as a ‘Home Occupation’ which requires a ‘Special Use Permit.’ Your business is not currently in
compliance with our ordinances. I have included the pertinent ordinances below. Please contact
Building and Development Services at 512-314-7540 for guidance on applying for a permit.”
44. Bianca contacted the office and had several conversations with the inspector. He
45. The inspector seemed eager to help her apply for a permit and Bianca was left with
the impression the inspector would give her a permit in a matter of days.
46. As the inspector told her, the City Ordinance empowered him to administratively
approve a home occupation permit on his own. § 30.05.002(c). Such an administrative approval
would allow Bianca to receive a permit without having a hearing or undergoing any other steps.
See id.
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47. With the inspector’s help in drafting the application, Bianca applied for a permit on
September 14, 2021. She asked for a permit for a home daycare serving up to three children at a
48. Suddenly, however, Bianca got an email from a City official scheduling her for a
hearing in front of the Zoning and Planning Commission. Bianca was very surprised and called
the inspector. The inspector said the City would not allow him to administratively approve her
permit because of the complaint he received against her. The City official who sent the email told
Bianca the same thing. As a result, Bianca would have to have a hearing in front of the
Commission and prove that her business complied with the City’s Home Occupation Ordinance.
49. The City has an extremely strict ordinance governing home businesses. It is called
the Home Occupation Ordinance. City Ordinance § 30.05.004. It is one of the most oppressive
50. The Ordinance defines a home occupation as “[a]n occupation customarily carried
which occupation is clearly incidental and secondary to the use of the premises for residential
purposes. Examples of home occupations that are permitted by this title include but are not limited
51. The ordinance requires home occupations to comply with 19 provisions. These
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(1) The occupation shall produce no alteration or change in the character or
exterior appearance of the building from that of a dwelling unit for human
habitation;
(2) Such use shall be incidental and secondary to the use of the premises for
residential purposes and shall not utilize an area exceeding twenty percent
to the residence for work, gather at the residence for any reason, or park
(4) The occupation shall not involve the provision of services or the sale of
(6) The occupation shall be conducted entirely within a dwelling unit, which
(8) The occupation shall not produce nuisances as defined herein or wastewater
runoff outside the dwelling unit or on property surrounding the dwelling unit;
(9) The occupation shall not cause a noticeable increase in the consumption of
any utilities;
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(10) The occupation shall not disturb or interfere with permitted uses in the
neighborhood, nor make the adjoining premises unsuitable for their permitted
uses;
(11) The occupation shall not have a measurable effect on property values in the
area;
(12) The occupation shall not consist of the following uses: industrial, utility,
similar uses;
(14) No occupation use shall be allowed which creates any hazardous risk or
conditions;
(16) Nothing herein shall be construed to allow animal breeding, animal hospitals,
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massage parlors/therapy clinics, restaurants, cocktail lounges, rental outlets,
services to the home shall not exceed what may be expected of a typical
residence.
52. These provisions ban virtually all home businesses, including many traditional
home businesses that are common in most other towns, and which the City has no legitimate
interest in prohibiting.
53. For example, the provisions would ban math tutoring or music instruction, as those
the home,” and would not be “undetectable.” Id. at (4), (17), (18).
54. As the City’s current mayor Thomas Kilgore stated, the provisions would even ban
a “home baker.” That is because a home baking business would result in “merchandise . . . within”
the home, id. at (5), and would not be “undetectable” if neighbors could smell or see any baked
55. Oddly, the provisions seem to ban the very businesses the ordinances lists as
allowed. See City Ordinance § 22.02.001. For example, a dress maker keeps merchandise on the
premises, is performing an on-premises service, and is detectable by the public. City Ordinance §
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30.05.004(5), (4), (17). Many home architects also have clients come to their home. Id. at (17).
And many artists would be “detectable” to their neighbors, for instance by working in an open
56. The City thus has discretion as to how strictly or leniently to apply its ordinance.
57. Indeed, upon information and belief, the City has provided permits to home
58. Bianca was thus hopeful that the City would permit her business. After all, her
business was just as innocuous as the businesses the City says it allows. In addition, many other
homes near Bianca have several children. There is also little difference between Bianca watching
59. Yet fearful of the City’s sudden change in attitude by scheduling her permit for a
hearing, Bianca started keeping her clients’ children inside. She also encouraged her clients to use
60. Bianca’s first hearing took place on November 8, 2021, in front of the Zoning and
61. At the hearing, only one person opposed Bianca’s permit—Joe Bain. Mr. Bain was
mayor of the town from 2015 until 2018. When he approached the podium, he addressed the
62. Mr. Bain lives over 30 homes away from Bianca. However, he is a golfer and he
plays golf at the Live Oak golf course at the Hills of Lakeway Country Club, a private par-4 course
in the neighborhood. Bianca’s backyard faces the eighth hole of that course.
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Available for viewing at https://lakewaytx.new.swagit.com/videos/147774.
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63. Mr. Bain’s chief complaint was that there are toys in Bianca’s backyard. As he
stated, the toys in Bianca’s backyard “were fully visible to the golf course.” Mr. Bain continued,
“There are gonna be toys out there, and they’re right on the golf course, which is another issue for
me.” Mr. Bain also referenced a “huge” inflatable that used to in Bianca’s backyard, which seemed
to refer to a five-foot tall inflatable sprinkler in the shape of a rainbow arch that Bianca uses in
64. Mr. Bain also complained he could see and hear children playing in Bianca’s
backyard. He said that “when you walk or drive by” (in a golf cart), “you can see the kids out
65. In addition, Mr. Bain complained Bianca had a sign on her car advertising her
business. This sign was a small decal on Bianca’s car a little bigger than a toaster. As Mr. Bain
noted, Bianca no longer had the sign. She removed it after she learned signs were not allowed for
home businesses.
66. After Mr. Bain’s comments, some of the Commission members referenced the
ordinance provision that a home business “shall effectively be undetectable by the permittee’s
67. But as one Commission member stated, children playing outside with toys is a
normal part of residential life and whether Bianca has two kids at her home or four to six shouldn’t
home daycare.
68. Indeed, Bianca has two kids of her own. Bianca also has family and her children’s
friends visit frequently, including by playing in her backyard with toys. So regardless of whether
Bianca has a home daycare, there would be children and toys in her backyard.
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69. Some of the Commission members also stated that the ordinance would not allow
Bianca’s clients to drive to pick up or drop off their children at Bianca’s home. Id. at (18). But
there is little traffic associated with Bianca’s business. Bianca cares for only two to four children
at a time. In addition, the children she watches are often siblings, meaning they are picked up and
70. And as Bianca told the Commission, the parents often just walk their children to
Bianca’s home or she walks to get them with a big stroller, since they all live in Lakeway. Some
parents even use golf carts to drop off and pick up their children.
71. In any event, neighborhood families sometimes driving to Bianca’s home once or
twice a day in no way harm the community and is not materially different than family or friends
visiting. Indeed, Bianca’s parents and other extended family often drive to and from her house.
And when Bianca’s family babysits for her children, they can be seen picking up and dropping her
children off.
72. Some of the Commission members also stated they were concerned that the State’s
permitting process for daycares was not rigorous enough. But as other members noted, the
ordinance does not give the City authority to deny a home business on that basis. 2
73. Nevertheless, the Commission denied Bianca’s permit in a 4 to 1 decision, with one
recusal. In denying the permit, the Commission members did not state which provision of the
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Some Commission members also wondered whether Bianca should register her business with
Texas Child Protective Services. But as other members stated at the hearing, this is not required
by any law. In fact, Child Protective Services does not allow daycares to register with them.
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75. To try to save her livelihood, she had to pay a local attorney to represent her in an
76. As part of Bianca’s appeal, she collected evidence that showed her business is
78. She also collected letters of support from four of her neighbors, including her next-
door neighbor. As one neighbor stated, Bianca’s business “is small, not loud, and no disruption to
the neighborhood.” Another neighbor stated that “the business is quiet and unobtrusive.”
79. Several of the letters, from both clients and neighbors, also stated that Bianca’s
daycare was a much-needed service and welcome in the community by young parents.
80. Bianca also included photos of her property. The included photos showing her
home business is not visible from her front yard. Photos of her backyard show it is surrounded by
a wrought iron fence and has only ordinary kids’ toys and a wooden playscape with a swing set.
82. The BOA held the hearing on February 9, 2022. The audio of the hearing is
available online. 3
3
The hearing audio is available at https://tinyurl.com/4bbujhzn.
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83. Bianca’s lawyer made a presentation showing that Bianca’s business was harmless
and providing a valuable service. He also made clear she only wanted to care for up to four
84. The City’s current mayor, Thomas Kilgore, spoke in favor of Bianca in his private
capacity as a resident of Lakeway. As Mayor Kilgore stated, “We have these 20, almost
unachievable criteria [in the Home Occupation Ordinance].” He urged the BOA to “follow the
letter of the ordinance and look at it, but I would ask you not to parse it so tightly that it cannot be
achieved.”
85. Bianca’s father—a police chief in a nearby town—also testified in her support. He
explained how Bianca’s business was harmless and a much-needed service for parents. He also
reminded the BOA that Bianca was a single mother and that her business was her primary source
of income.
86. Four opponents testified against Bianca, including the former mayor, Joe Bain.
None live next to Bianca and instead live several homes away. Their chief complaint was that
Bianca’s backyard faced the golf course, and that they did not want to hear or see children while
87. The first opponent 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.
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Bianca’s permit application on September 14, 2021, asked to care for up to three children at a
time, which is what the State allowed under Bianca’s designation as a “listed family home.” But
the State later approved Bianca as a registered child-care home, so Bianca asked the City to grant
her a permit for up to four unrelated children.
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88. The second opponent—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 number of toys in
Bianca’s backyard. She emphasized that one day, she and her fellow players heard a child crying
89. In response to these statements, a BOA member asked, “What hole was this on?”
The opponent responded that it was at the eighth hole. The opponent also stated that she has video
90. Former mayor Joe Bain, who lives over 30 homes away, was the third opponent.
He again complained that toys in Bianca’s backyard were “visible to the golf course.” He also
said that Bianca’s yard “backed up to the tee box and the noise is disturbing the players.”
91. The final opponent stated that there were “children were outside the dwelling,” that
children “are out in the yard,” and that there were toys outside. There are two homes and an
92. Some of the opponents also mentioned they had seen cars outside Bianca’s home
to pick up and drop off children. But as Bianca’s attorney told the BOA, Bianca’s family members
and friends often drop off and pick up children at Bianca’s home.
93. The BOA members discussed whether Bianca’s business complied with the
ordinance. They discussed three provisions of the ordinance. Like the Commission, the BOA
discussed whether Bianca’s business complied with provisions 17 and 18 under the ordinance by
94. The BOA also discussed provision 4 for the first time. Provision 4 prohibits home
businesses from providing “services or the sale of merchandise to a customer on the premises to
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95. The BOA ultimately voted to affirm the denial of Bianca’s permit in a 4 to 2
decision. (There was one recusal). The BOA did not specify what provision they were denying
her permit under. The next day, the BOA filed its written decision on February 10, 2022. The
decision stated that the Commission had denied the permit under provisions 17 and 18, and the
96. Since then, some of the golfers who opposed Bianca’s business at the hearings have
watched Bianca and her home to see if she is still operating. One of the golfers even approached
Bianca’s home while Bianca was exercising in her garage and asked to know more details about
97. Bianca twice reached out to the City Attorney and mayor, on February 11 and again
on February 14, to see if he would give her more time to keep her business open while she considers
her options. As of the filing of this petition, she has yet to hear back from them.
98. Upon information and belief, Mr. Bain and the other golfers are urging the City to
prosecute Bianca immediately. Upon information and belief, the City does in fact intend to
99. Bianca was able to secure pro bono counsel from the undersigned law firm, the
100. If Bianca continues to operate her business without a permit from the City, she will
be subject to a misdemeanor charge and up to a $2,000 fine per day. City Ordinance § 30.07.133.
101. Upon information and belief, the City intends to immediately prosecute Bianca if
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102. To avoid the risk of prosecution, Bianca will have to immediately shut down her
business at her home unless this Court allows her to stay open.
103. Bianca’s business has been a tremendous source of pride for Bianca, and she has
dedicated countless hours building it and cementing an excellent reputation among her clients.
104. Bianca’s business is also her primary source of income. Shutting down Bianca’s
business would also leave her clients scrambling to find new childcare.
105. But for the City’s unconstitutional home-based ordinance and the illegal denial of
her home occupation permit, Bianca would be able to continue operating her home daycare and
VII. CLAIMS
106. Plaintiff hereby incorporates the allegations set forth above in paragraphs 1 to 105,
107. The order of the BOA affirming the denial of Bianca’s home occupation permit was
illegal.
108. To establish that an order of a zoning board is illegal, the party attacking the order
must show that the board abused its discretion. A board abuses its discretion if it acts without
reference to any guiding rules and principles, or clearly fails to analyze or apply the law correctly.
109. Whether a zoning board of adjustment abused its discretion is a question of law for
110. Here the Board of Adjusted acted illegally by affirming the Commission’s decision
to deny Plaintiff’s permit under City Ordinance § 30.05.004(17) and (18). Provision 17 states that
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“[a] home occupation[] shall effectively be undetectable by the permittee’s neighbors and the
public.” Provision 18 states, “No occupation shall have customers driving or commuting to
the home.”
111. The BOA abused its discretion by affirming the Commission’s finding that
Plaintiff’s home business does not comply with provision 17. The BOA based its decision on
statements from golfers, including the former City mayor, that they could detect toys and children
112. Toys and children in a private backyard are normal and common in a suburban area,
whether a person has a home daycare or not. Plaintiff herself has two children that play in her
backyard. Plaintiff’s children also have friends and relatives that frequently come to visit them
and play in her backyard. Thus, toys and children would be in Plaintiff’s backyard whether she
113. Moreover, the ability of golfers to see toys and children in Plaintiff’s private
backyard is not a sufficient reason to find that Plaintiff’s business is “detectable” under provision
17. This is especially true as it would be difficult for the golfers to determine whether the children
playing in Plaintiff’s yard are her own children, family or friends, or daycare children.
114. Plaintiff also would not change or remove any of the toys or playthings in her
115. The BOA thus abused its discretion by finding that Plaintiff’s business did not
116. The BOA also abused its discretion by finding that Plaintiff’s home business does
not comply with provision 18 (“No occupation shall have customers driving or commuting to
the home.”). Although neither the Commission nor Board stated its reasons for this finding, they
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seemed to base this decision on statements from residents, none of whom lived next to Plaintiff
and two of whom lived over 20 houses away from Plaintiff. These statements were that the
117. Dropping children off is normal and common activity in a suburban area, whether
a person has a home daycare or not. Plaintiff has friends and a big family that often drive to her
home in cars. Plaintiff’s children also frequently have playdates with their friends at Plaintiff’s
home.
118. In addition, statements at the hearing showed that Plaintiff’s parents often drop off
their grandchildren (Plaintiff’s children) at Plaintiff’s home after spending time with them.
119. Moreover, Plaintiff stated that she often walks the daycare children to and from her
home in a big stroller or their parents walk to pick and drop them off.
120. As a result, it would be difficult to determine whether cars at Plaintiff’s home are
121. The BOA thus abused its discretion by finding that Plaintiff’s business did not
122. Moreover, in affirming the denial of Plaintiff’s permit, the BOA interpreted
provisions 17 and 18 so strictly that their interpretation contradicted other aspects of the ordinance.
The ordinance states that, “Examples of home occupations that are permitted by this title include
but are not limited to: a computer programmer, an investor, an architect, a consultant, a writer, an
artist, or a dress maker.” City Ordinance § 22.02.001. Several of these occupations would
certainly be detectable to neighbors and the public under provision 17, or at least as detectable as
Plaintiff’s home business. Similarly, several of these occupations would have clients coming to
the home under provision 18. Yet these occupations are expressly allowed under the ordinance.
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123. Upon information and belief, the City has also granted permits to home occupations
124. The City exercises discretion in granting and denying home occupation permits. In
exercising this discretion, it improperly considers whether politically powerful people oppose the
permit.
125. The City considered that politically powerful people opposed Plaintiff’s permit.
126. The City thus abused its discretion by denying Plaintiff’s permit under provisions
17 and 18.
127. Pursuant to Tex. Loc. Gov’t Code Ann. § 211.011, Plaintiff respectfully requests
that this Court issue a Writ of Certiorari directed to the BOA regarding the BOA’s affirmance of
the Commission’s decision to deny Plaintiff her home occupation permit. Plaintiff also requests
the Court enter a judgment declaring that the BOA illegally affirmed the decision to deny Plaintiff
her home occupation permit. Tex. Loc. Gov’t Code Ann. § 211.011(a), (f) (empowering court to
128. Plaintiff hereby incorporates the allegations set forth above in paragraphs 1 to 105,
129. Article I, Section 19 of the Texas Constitution provides: “No citizen of this State
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130. This “due course of the law of the land” guarantee of the Texas Constitution is
commonly known as the Constitution’s “due process” provision. Among the rights encompassed
in this provision is substantive due process. Substantive due process protects, among other things,
the right to economic liberty (such as the right to earn an honest living in the occupation of one’s
131. To show that an economic regulation has violated substantive due process under
this provision, a plaintiff must show either that (1) the regulation is not rationally related to a
legitimate governmental interest or (2) the regulation’s actual, real-world effect as applied to the
oppressive in light of, the governmental interest. See Patel v. Tex. Dep’t of Licensing & Regul.,
Ordinance § 30.05.004. Each of the ordinance’s provisions, including provisions 4, 17, and 18,
are also economic regulations. City Ordinance § 30.05.004(4) (“The occupation shall not involve
the provision of services or the sale of merchandise to a customer on the premises”); id. at (17)
(“A home occupation[] shall effectively be undetectable by the permittee’s neighbors and the
public.”); id. at (18) (“No occupation shall have customers driving or commuting to the home”).
133. The ordinance, including provisions 4, 17, and 18, violates the due process
134. The ordinance, including provisions 4, 17, and 18, interferes with Plaintiff’s right
to economic liberty, specifically her right to earn an honest living. It also interferes with Plaintiff’s
property rights.
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135. Defendants lack a legitimate reason for applying the ordinance to ban Plaintiff’s
136. Applying the ordinance to ban Plaintiff’s home daycare business is not rationally
as applied to Plaintiff.
138. Plaintiff’s home daycare business does not interfere with anyone’s rights and is not
139. Plaintiff’s home daycare involves caring for only two to four children at a time, in
addition to her own two children. Having four to six children at a home, whether they are related
to the homeowner or not, is a normal and ordinary use of property. In fact, many Texans have
140. The government does not have a legitimate interest in preventing small groups of
because she provides a basic service to a small group of children in her home.
142. Even if Plaintiff’s home daycare business resulted in the sound of children playing
outside, that is a normal and expected noise in any suburban community. In fact, Plaintiff’s own
children and their friends would regularly cause such sounds outside, regardless of whether she
143. The government does not have a legitimate interest in preventing the sounds of a
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144. It is irrational and oppressively burdensome to deny Plaintiff’s home daycare
145. Even if Plaintiff’s home daycare business resulted in toys outside, children’s toys
are normal and expected in any suburban community. In fact, Plaintiff’s own children and their
friends would regularly play with toys outside, regardless of whether she operated a home business
or not.
146. The government does not have a legitimate interest in preventing toys in a person’s
private backyard.
148. Even if Plaintiff’s home daycare business prevented golfers from golfing in
complete silence or with a view without toys, such things are normal and expected in any golf
course that runs alongside homes. In fact, Plaintiff’s own children and their friends would
regularly play outside with toys, regardless of whether she operated a home business or not.
149. The government does not have a legitimate interest in making sure golfers can golf
151. Even if Plaintiff’s home daycare business causes cars to sometimes be briefly
parked outside of her home twice a day while they pick up and drop off their children, such things
are normal and expected in any suburban community. In fact, as stated at the hearing, Plaintiff’s
own family, friends, and babysitter would often cause cars to be outside picking up and dropping
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152. The government does not have a legitimate interest in preventing minimal vehicular
business because it might cause minimal vehicular traffic outside of her home.
154. The state’s police power and/or zoning power does not extend to allow Defendants
to deny Plaintiff’s home occupation permit or otherwise prohibit Plaintiff’s home daycare business
155. Pursuant to the Uniform Declaratory Judgments Act, see Tex. Civ. Prac. & Rem.
Code Ann. §§ 37.001 et seq., Plaintiff respectfully requests the Court enter a judgment declaring
that preventing Plaintiff from operating a home daycare business for a small group of children
violates Plaintiff’s substantive due process under the Texas Constitution. See also Tex. Loc. Gov’t
Code Ann. § 211.011(a), (f) (empowering court to declare BOA action illegal)
156. Plaintiff hereby incorporates the allegations set forth above in paragraphs 1 to 105
157. Article I, Section 19 of the Texas Constitution provides that: “No citizen of this
State shall be deprived of life, liberty, property, privileges or immunities, or in any manner
158. This “due course of the law of the land” guarantee of the Texas Constitution is
commonly known as the Constitution’s “due process” provision. Among the rights encompassed
in this provision is substantive due process. Substantive due process protects, among other things,
28
the right to economic liberty (such as the right to earn an honest living in the occupation of one’s
159. To show that an economic regulation has violated substantive due process under
this provision, a plaintiff must show either that (1) the regulation is not rationally related to a
legitimate governmental interest or (2) the regulation’s actual, real-world effect as applied to the
oppressive in light of, the governmental interest. See Patel v. Tex. Dep’t of Licensing & Regul.,
Ordinance § 30.05.004. Each of the ordinance’s 19 provisions are also economic regulations. This
161. Provisions 4, 17, and 18 violate the due process guarantee on their face. City
Ordinance § 30.05.004 (4) (“The occupation shall not involve the provision of services or the sale
of merchandise to a customer on the premises”); id. at 17 (“A home occupation[] shall effectively
be undetectable by the permittee’s neighbors and the public.”); id. at (18) (“No occupation shall
162. Provisions 4, 17, and 18 are so strict as to make Defendants’ home occupation
ordinance one of the strictest in the state and even the country.
163. Provisions 4, 17, and 18 are so broad as to ban many and almost all ordinary home
businesses, even traditional home businesses that have been common in this country for hundreds
164. Provisions 4, 17, and 18 apply regardless of whether a home business might harm
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165. In addition, Defendants have ample other ordinance provisions to deal with home
166. Provisions 4, 17, and 18 are also so broad as to give Defendants virtually unlimited
discretion to deny home businesses. This includes the discretion to deny home business based on
an illegitimate purpose, such as satisfying the whims of politically powerful people in the City.
167. Provisions 4, 17, and 18 interfere with City residents’ right to economic liberty,
specifically their right to earn an honest living. They also interfere with residents’ property rights.
168. Defendants lack a legitimate reason for using Provisions 4, 17, and 18 to ban home
businesses.
169. Provisions 4, 17, and 18 are also not rationally related to a legitimate government
interest.
governmental interest.
171. Pursuant to the Uniform Declaratory Judgments Act, see Tex. Civ. Prac. & Rem.
Code Ann. §§ 37.001 et seq., Plaintiff respectfully requests the Court enter a judgment declaring
that provisions 4, 17, and 18 violate substantive due process under the Texas Constitution and are
unconstitutional on their face. See also Tex. Loc. Gov’t Code Ann. § 211.011(a), (f) (empowering
172. Plaintiff hereby incorporates the allegations set forth above in paragraphs 1 to 105,
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173. Article 1, section 27 of the Texas Constitution guarantees the fundamental right to
peaceably assemble, which includes the right to meet or congregate for shared welfare or
benefit. This right is strongest when persons assemble on their own private property.
174. The fundamental right to peaceably assemble extends to persons running businesses
out of their homes. See Zaatari v. City of Austin, 615 S.W.3d 172, 199–202 (Tex. App.—Austin
assembly of citizens on private property with respect to the purpose, time, or number of people.
for instance, by prohibiting Plaintiff from providing a “service” while assembled, City Ordinance
§ 30.05.004(4); by prohibiting Plaintiff from assembling on her private property in a way that is
not “effectively [] undetectable” by her neighbors, id. at (17); and by prohibiting Plaintiff’s clients
178. The home-occupation ordinance does not survive strict scrutiny because the City
cannot identify a compelling interest that justifies its restrictions on Plaintiff’s right to peaceably
179. The regulation of property use is not, in and of itself, a compelling governmental
interest. Zaatari, 615 S.W.3d at 201–02. And any concerns the City may have in maintaining
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180. The City does not have a compelling interest in restricting the assembly of persons
181. The City cannot demonstrate that Plaintiff’s caring for her clients’ children or her
meeting with clients for pick up or drop off is a serious burden on neighboring properties sufficient
to justify the zoning ordinance’s encroachment on the fundamental rights of Plaintiff and her
182. The sight of toys and children in a private backyard is normal and common activity
in a suburban area, whether a person has a home daycare or not. So is dropping off children at a
suburban home. Plaintiff herself has two children of her own with friends and relatives that comes
to visit them, and statements at the hearing showed that Plaintiff and her family and friends would
183. Moreover, the City does not have a compelling interest in preventing minimal
184. Any cars driving to Plaintiff’s home to drop off children for daycare would have a
minimal impact on the neighborhood, especially as her clients all live in the neighborhood. And
Plaintiff stated that she often walks the daycare children to and from her home in a big stroller or
185. The home-occupation fails strict scrutiny because it is not narrowly tailored and
186. The state’s police power and/or zoning power does not extend to allow Defendants
to deny Plaintiff’s right to assemble on her private property merely because she has a pecuniary
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187. Pursuant to the Uniform Declaratory Judgments Act, see Tex. Civ. Prac. & Rem.
Code Ann. §§ 37.001 et seq., Plaintiff respectfully requests the Court enter a judgment declaring
that the City’s home occupation ordinance is unconstitutional as applied to Plaintiff’s small home
daycare business for up to four children unrelated to her, under the Texas Constitution’s right to
peaceably assemble. Tex. Const. art. I, § 27. See also Tex. Loc. Gov’t Code Ann. § 211.011(a),
188. Plaintiff requests that the Court grant a temporary restraining order allowing
Plaintiff to maintain the status quo and continue to operate her home daycare business for up to
four children at a time, and enjoining the Defendants from enforcing their home occupation
ordinance against her, until a temporary injunction hearing can be held. Such relief is available
for Plaintiff’s first cause of action, Tex. Loc. Gov’t Code Ann. § 211.011(c), as well as Plaintiff’s
constitutional claims in the second to fourth causes of action. Tex. R. Civ. P. 680.
189. Plaintiff also requests that the Court grant a temporary injunction allowing Plaintiff
to maintain the status quo and continue to operate her home daycare business for up to four children
unrelated to her at a time, and enjoining the Defendants from enforcing their home occupation
ordinance against her, for the pendency of this case. Such relief is available for Plaintiff’s first
cause of action, Tex. Loc. Gov’t Code Ann. § 211.011(c), as well as Plaintiff’s constitutional
190. Plaintiff will experience immediate and irreparable injury unless the Defendants
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IX. APPLICATION FOR PERMANENT INJUNCTION
191. After adjudication of this case on the merits, Plaintiff requests that the Court enter
a permanent injunction (1) enjoining Defendants named herein from enforcing the home
occupation ordinance against Plaintiff, thus allowing Plaintiff to continue operating her home
business for up to four children at a time, and (2) enjoining Defendants named herein from
enforcing provisions 4, 17, and 18 against other home businesses in the City.
X. ATTORNEYS’ FEES
192. Plaintiff hereby requests all costs and reasonable attorneys’ fees, as permitted by
WHEREFORE, Plaintiff requests that the Court render judgment in her favor and grant her
For Plaintiff’s First Clause of Action, pursuant to Tex. Loc. Gov’t Code Ann. § 211.011,
Plaintiff requests that this Court grant the following specific relief:
A. A Writ of Certiorari directed to the BOA regarding the BOA’s affirmance of the
Commission’s decision to deny Plaintiff her home occupation permit pursuant to Tex. Loc. Gov’t
B. A restraining order allowing Plaintiff to maintain the status quo and continue to
operate her home daycare business for up to four children unrelated to her at a time, pursuant to
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C. A declaration that the denial of Plaintiff’s home occupation permit was illegal
D. An order granting Plaintiff a home occupation permit to operate her home daycare
business for up to four children unrelated to her at a time at her address of 702 Vanguard Street,
Lakeway, Texas.
In addition or in the alternative, Plaintiff requests that this Court grant the following
specific relief for Plaintiff’s constitutional claims (the second, third, and fourth causes of
action):
E. A temporary restraining order allowing Plaintiff to maintain the status quo and
continue to operate her home daycare business for up to four children unrelated to her at a time,
F. A temporary injunction allowing Plaintiff to maintain the status quo and continue
to operate her home daycare business for up to four children unrelated to her at a time, for the
G. A permanent injunction allowing Plaintiff to operate her home daycare business for
up to four children unrelated to at a time at her address of 702 Vanguard Street, Lakeway, Texas.
occupation ordinance, City Ordinance § 30.05.004, are unconstitutional on their face under the
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J. A declaratory judgment that the Defendants’ home occupation ordinance, City
M. All other legal and equitable relief to which Plaintiff may be entitled.
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CAUSE NO. __________________
BIANCA KING,
IN THE DISTRICT COURT OF
Plaintiff,
Defendants.
My name is Bianca King, my date of birth is November 11, 1979, and my address is 702
Vanguard St., Lakeway, Texas 78734. I declare under penalty of perjury that the following
paragraphs in the document “Plaintiff’s Verified Petition for Writ Of Certiorari and Declaratory
Injunction, And Injunctive Relief,” are true and correct according to my personal knowledge:
• Paragraphs 1-16
• Paragraph 20
• Paragraph 27-48
• Paragraphs 54
• Paragraph 58-105
1
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