Backdoor Zoning: Complaint in San Felipe “Nuisance” Case

July 30th, 2014

Yesterday I bogged about a new complaint filed in Houston over the San Felipe “High Rise,” in the wake of the Ashby High Rise decision. Here is the complaint. There seems to be three¬†main claims: (1) it will increase traffic with 400 new parking spots, (2) it will decrease the values of homes (casting a shadow over the home, blocking¬†rain, and damaging gardens), (3) deprive owners of privacy (high-rise will have a view into windows or yards), and (4) erosion of the character of the neighborhood” (by chopping down huge oak trees).

The first cause of action, for a “private nuisance,” claims the high-rise is “abnormal for the area”:

The 17-story San Felipe high-rise office building is abnormal for the area and unquestionably alters the characteristics of the neighborhood. This has and will continue to substantially decrease the value of Plaintiff’s home and property and has and will continue to constitute an unintentional and unreasonable invasion of Plaintiffs’ interests in their real property.

This tracks almost verbatim with the Ashby jury instruction:

Question No. 1

Is 1717 Bissonnett’s proposed Project abnormal and out of place in its surroundings such that it will constitute a private nuisance if built?

1717 Bissonnet creates a “private nuisance” if its Project substantially interferes with Plaintiff’s use and enjoyment of land.

“Substantial interference” means that the Project must cause unreasonable discomfort or unreasonable annoyance to a person of ordinary sensibilities attempting to use and enjoy the person’s land. It is more than a slight inconvenience or petty annoyance.

A nuisance, if it exists, is not excused by the fact that it arises from operation that is in itself lawful or useful.

The second cause of action claims a “public nuisance,” citing dangers and traffic congestion from all of the new cars.

Interestingly, the Plaintiffs are only seeking actual damages (direct and consequential for loss in value of property), but no injunctive relief. The construction is under way.

This species of backdoor zoning aims to shift the costs. Rather than the homeowners internalizing the cost of the new building, the developers will bear that cost. Of course, this creates a specter of litigation over all development, where it is impossible to know ex ante what the costs will be. More zoning fun in the unzoned city.