The Chron reviews the bidding so far prior to Monday’s Ashby hearing.
Key to the jury’s finding was that the project should be considered a nuisance. The residents’ attorneys will ask the judge to grant a permanent injunction for the Ashby high-rise, stopping the project from being built. The developers’ side will ask the judge not to enter judgment on the jury’s findings and allow the project to go forward, arguing in part that the evidence was not presented in trial to prove the project was “abnormal and out of place.”
“It’s very hard to balance the interests and assign a remedy that will compensate anyone who suffered harm, but try not to impede the property rights and system of development for the state as a whole,” said Matthew Festa, professor at South Texas College of Law, who specializes in land use and testified during last year’s trial.
Festa said the judge can take the jury finding of nuisance and award a permanent injunction, compensate residents with the monetary award or rule that the verdict did not comply with the law. He said the court will likely factor in the delays to the project, the investments and costs to developers in his decision.
“This could have some pretty interesting implications for development, not just in Houston and Texas, but nationally,” he said. “The idea of being able to stop something otherwise legal before it’s built is novel.”
It’s a tough call. If the project is a genuine nuisance, then it doesn’t make sense to let it be built as is. But if that’s the case, then what can be built there? And if it’s not a nuisance, then what’s the problem? The residents will be awarded damages, which in theory at least makes them whole. It’s no wonder the city submitted a brief asking for the project to be allowed. It’s a big mess from a regulatory perspective otherwise.
I don’t envy the judge in the case, who is fully aware that all eyes are on him.
Having heard the last of the legal arguments on Monday, state District Judge Randy Wilson acknowledged a dilemma he faces in having to rule whether the Ashby high-rise can go forward: If he stops the 21-story tower, could developers come back with, say, a 20-story model that might spark another lawsuit from outraged neighbors?
The case of 1717 Bissonnet differs from some previous nuisance cases that were more clear-cut, he said, such as a slaughterhouse or tanning facility that was planned alongside private residences. In this case, a permanent injunction would block a residential tower that would replace the two-story Maryland Manor apartments that were demolished.
“It’s not putting a racetrack next to somebody, so what type of residences should be permitted?” Wilson asked. “We know a Maryland Manor is fine, but 21 stories is not fine. But what is? That’s a horse of a different color.”
The judge asked for a final set of documents from attorneys on both sides and promised to make a decision promptly.
“This case has intense public interest and has stretched for some time,” Wilson told a courtroom packed with observers interested in the outcome of the seven-year-long battle. “Because of this, I will rule quickly.”