Lewyn on the Ashby High Rise and Nuisance Law

November 13th, 2014

Michael Lewyn, on the unzoned city of Houston, writes at Planetizen about the recent decision by a Texas jury, finding that the Ashby High Rise was a nuisance. Michael does not think the nuisance finding was correct (I agree). Here is an overview of his argument:

First, the public policy in favor of affordable rental housing dictates against such actions. … If (as in the Loughead action) homeowners are allowed to use nuisance law to keep multifamily housing out of their neighborhoods, the shortage of rental housing is likely to get worse, causing rents to continue rising. …

Second, the public interest in promoting infill should bar such nuisance suits. Because most land is zoned for single-family housing, most of urban America is near a single-family neighborhood. …

Third, in cities with zoning, the public interest in orderly planning should support strict limits on nuisance actions designed to stop new development. (Obviously, this argument does not apply to Houston, which lacks zoning.) …

The Loughead plaintiffs argue that their suit is necessary to prevent their neighborhood from being deluged with traffic. I don’t find this argument persuasive even in Houston, because if new residents and their cars are kept out of one neighborhood, they will merely create traffic somewhere else, and will probably wind up driving their cars through the plaintiffs’ neighborhood. But even if this argument is sensible in Houston, it does not justify nuisance actions in cities with zoning. In those places, arguments about traffic, noise, etc., should be made before city councils and zoning boards, who can balance neighborhood concerns against broader citywide interests.

 

Michael’s last point is an interesting one. In a city like Houston that lacks zoning, should the city turn to nuisance as an alternative? There are no zoning boards to appeal to. In a piece I’m working on, I argue no, this is still a bad idea. Redefining nuisance law in this manner gives neighbors an ex post rationale to stop construction, when there is no way to know ex ante whether a specific building will be a nuisance or not.