Backdoor Zoning Continues: Houston Residents Sue for Damages From Construction

July 29th, 2014

In the aftermath of the Ashby High Rise decision, which allowed neighbors to sue for damages under a nuisance theory for out-of-place constructions, another suit has been filed.

 A second lawsuit filed against the 17-story office tower planned in a River Oaks-area neighborhood may be a sign that residents increasingly feel empowered to fight developments they don’t like in court, fulfilling a prediction made by observers in the years-long battle over the Ashby high-rise.

One legal observer said it could portend more “fireworks” in the future.

Construction is well underway on San Felipe Place, a “boutique” office tower by Houston-based Hines. Yet a lawsuit filed earlier this month argues the tower would increase traffic, interfere with privacy, cast plant-killing shadows and erode the character of the neighborhood. Hines denies the allegations and says the lawsuit is without merit.

This is the second lawsuit filed against the tower at 2229 San Felipe planned in a mixed-use area between Shepherd and Kirby. The arguments made by a husband and wife who own a home on nearby Stanmore Street are similar to those made in an earlier lawsuit filed against the development company.

In the lawsuit filed June 15 against the San Felipe tower, the homeowners are seeking damages for their loss of property value. This differs slightly from the previous lawsuit, filed in February, which sought to stop the project through permanent injunction. A judge denied the plaintiffs’ request for a temporary restraining order to stop construction.

This has echoes of the Ashby litigation:

Both actions seem to echo complaints in the battle against the residential tower planned at 1717 Bissonnet, widely referred to as the Ashby high-rise, in an affluent neighborhood near Rice University.

A Harris County judge ruled earlier this year that tower can go forward but the development company, Houston-based Buckhead Investment Partners, must pay damages for loss of market value to 20 of the residents who sued last year. Defense lawyers have said they will challenge those damages on appeal.

My colleague Matt Festa aptly sums up the suits–“death by a thousand cuts”:

Observers have said the Ashby case could have an effect on development moving forward. Now, local land-use experts say the San Felipe project and the neighbors’ fight against it may be the first evidence of that.

“They could be taking from the Ashby logic,” said Matthew Festa, a South Texas College of Law professor who specializes in land use issues, who testified for the developers in the November trial. “It could be a death by a thousand cuts: everyone who lives nearby suddenly feels empowered to sue for damages.”

The real damages of awarding damages is that it chills construction:

Barry Klein, president of the Houston Property Rights Association, said not many homeowners could afford the costly litigation involved in the Ashby and San Felipe cases.

“Maybe this is a case where people have so much money, it’s a way to cause pain to the developer, even though they recognize they can’t stop the tower,” Klein said. “It could simply be spite on their part to cause the developer more trials and tribulations. … Most neighborhoods don’t have people that can take the legal gamble like this. I don’t expect this will happen in many parts of Houston.”

Stay tuned.