I am quoted in Houston Chronicle in Article on Ashby – “Back-Door Zoning”

December 19th, 2013

Erin Mulvaney writes in the Chronicle about reactions to the recent verdict in the Ashby High Rise case.

A Harris County jury’s verdict in favor of a neighborhood group fighting the Ashby high-rise is likely to serve as an inspiration for activists and a cautionary tale for developers.

The ultimate fate of the 21-story high-rise at 1717 Bissonnet is to be determined. But the verdict awarding nearly $1.7 million in damages to nearby residents if the project gets built is raising questions on land-use law, whether developers will think twice about projects in established Houston neighborhoods and whether city ordinances do enough to protect residents.

This verdict will likely spur opposition from other influential neighborhoods to stop mixed-use constructions:

Several groups protesting projects in other neighborhoods, including in the Museum District, River Oaks and the Heights, said the ruling will give them more power to stop unwanted development.

Jack Ogg, a leader of a group trying to fight an 18-story office tower in the River Oaks area, said his group had planned a lawsuit against the developer Houston-based Hines. He said the verdict was encouraging, and it could deter unfettered development in Houston.

“It’s a step in the right direction,” Ogg said. “It will make developers think twice before jumping in to change the character of the neighborhood.”

While talking to Erin yesterday, I wondered whether the Mayor might be in favor of this ruling. Houston is unique in that, due to a lack of zoning, the City Attorney can bring suit to enforce private covenants. If the City opposes a construction, and cannot stop it through the limited land-use mechanisms (this is what happened with Ashby–Houston unsuccessfully tried to stop it, and the case settled), they can file a nuisance suit. Mayor Parker seems concerned about the ruling, yet insists that Ashby should not have been built there (this would seem to accord with the nuisance verdict).

Mayor Annise Parker on Wednesday reiterated her view of the Ashby high-rise: great project, wrong place. She has also said, however, that zoning is not the answer for the city. Houston is the only major city in the United States without formal zoning.

“We just going to continue to watch with great interest and a little bit of concern,” she said. “The issues that are raised in this lawsuit certainly potentially have an impact on the city, but I know it’s not going to stop here so I’m just going to wait and see how it plays out.”

I am quoted about the odd application of nuisance law.

Josh Blackman, assistant professor at the South Texas College of Law, said the verdict broke new ground in land-use law. In its verdict, the jury found the high-rise would be a “nuisance” to surrounding residents because it would be out of place for the site. He said that is a move away from typical nuisance law, which usually encompasses less subjective criteria, such as noise or pollution.

“This represents back-door zoning for wealthy people to stop developments in neighborhoods,” Blackman said. “This gives a powerful veto to the residents.”

The head of Camden Properties seems to agree with me (random, but I lived in a Camden property in Louisville).

Ric Campo, chairman and CEO of Houston-based Camden Property Trust, which develops and manages apartments across the U.S., said he is concerned if the verdict is upheld and suits became more common, that the cost of living would increase in Houston

“There has to be balance with protecting neighborhoods, traffic, etc., but it should be done by lawmakers, not judges or juries.”

These are not issues to be resolved by juries on an ad hoc basis. Even if you oppose zoning codes, it at least offers fair notice to all parties involved of what the standards are (well, more notice than nuisance suits).
Stay tuned.

Update: This comment is right on.

marylbarone – The “activists” may (or may not) be well intentioned, but they are unquestionably self-appointed and simply don’t speak for the neighborhood at large. As Blackman suggests, money speaks and those with deep pockets become the de facto voice of the community whether or not their position reflects that of the majority of the neighbors. Lawsuits are a dreadful way to make policy. Jurors often have limited general knowledge of the larger issues surrounding the decisions they are making and are certainly limited by the rules and motions of the trial as to what information they are allowed to hear as testimony. This process denies the vast majority of the impacted parties a seat at the table.

Update: My colleague Matt Festa, who testified on behalf of the developers as an expert witness on land use, has these comments on the verdict:

But Matthew Festa — a South Texas College of Law professor and land use historian called as a witness for the defense — fears the damages ruling could have a “chilling effect” on future development as the city becomes more densely populated.

“If upheld, this decision sets a dangerous precedent by awarding damages to plaintiffs who object to something that was otherwise legal,” he says. “It says you can be penalized for building something your next-door neighbors don’t like.”