I have blogged several times about a huge land use case in Houston, the city without zoning. Long story short, there is nothing in the law stopping  the construction of high rise condominiums in a wealthy part of town. Neighbors have spent the past six years fighting this construction. Finally, after all legal hurdles were cleared, they filed a last-ditch effort, claiming the construction was a nuisance. And today, a jury bought that decision.

Erin Mulvaney, who has done some great reporting on the case for the Houston Chronicle, reports:

A Harris County jury awarded $1,661,993.62 in damages to 20 of the households who filed suit against developers of the so-called Ashby high-rise.

The damages, however, will only be awarded if the tower is ultimately built.

The developers said they will appeal.

“We fully intend to seek the reversal of this decision through the Texas state court of appeals or the Supreme Court if necessary,” said Matthew Morgan of Buckhead Investment Partners.

The 12-person jury deliberated for about six and a half hours Monday night and Tuesday. Their  verdict was unanimous. Some of the residents who filed suit were not awarded damages.

Jurors said they felt they made the decision that was fair.

They said they made the determination of damages based on evidence presented in trial and believed some of the residents would not be greatly impacted by the high-rise. They seemed to agree with the plantiffs’ attorney that the high-rise was the wrong project on the wrong site.

The month-long trial revolved around a lawsuit filed by 30 households from  Southampton and Boulevard Oaks neighborhoods against Houston-based Buckhead Investment Partners  to stop the 21-story high-rise at 1717 Bissonnet, widely referred to as the Ashby high-rise.

Erin reports that the jurors sided with the neighbors, and felt that this wasn’t the right place.

Jurors tell me they felt high-rise was out of place for neighborhood #AshbyTrial

— Erin Mulvaney (@erinmulvaney) December 17, 2013

Of course, none of this has anything to do with the law of nuisance, but that is the key issue here. What is a nuisance?

This is really significant. I had a chance to chat with my colleague Matt Festa, who testified as an expert witness in the case. Before zoning and land use, communities often used the law of nuisance to police uses (remember Boomer v. Atlantic Cement)? Courts moved away from enforcing nuisance suits because they are expensive to litigate, handle land-use problems in piecemeal ways, and it is impossible ex ante for builders to know what will be a nuisance. Yet, in Houston, a city without zoning, we have reverted back to pre-Boomer. All of the attendant problems with using nuisance to police land use exist.

In January, the court will hold a hearing on whether to grant an injunction.

I am working on an article on the Ashby issue. Now it will be a different article.