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.”
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.”
Bill Kroger, a partner with Baker Botts, which is defending Hines, said the Ashby case is far from resolved and the arguments of the River Oaks neighbors in the latest lawsuit are very different.
Kroger said there has not been a flood of litigation against high-rise office buildings, despite the boom in construction.
Yet John Mixon, a retired University of Houston law professor who specializes in property law, said the lawsuit against Hines signals an “open season” on development and highlights the needs for zoning.
“Developers are now paying the price for not having a system for rational regulation to settle these issues,” he said. “I think we are going to see some fireworks over the next few years.”
I’m more inclined to agree with Klein and Kroger here than with Festa and Mixon. The Ashby decision is going to be appealed – in fact, the defense has just filed a motion to appeal – and it’s possible the plaintiffs could follow suit since the judge gave it the go-ahead to be built despite the damages awarded. In both of these cases you have people with the wherewithal to pursue legal action doing so. Not every neighborhood can meet that. The fact that as yet I’ve heard of no legal action planned by any of my Heights neighbors over the multiple projects going on that they scorn suggests to me this kind of litigation will be the exception rather than the rule. Plus, who knows, the San Felipe plaintiffs may lose. I for one think that the Ashby location was a lot less sensible than this one is for a highrise, and the fact that it was so much of an outlier may be the difference. Of course, I thought the Ashby plaintiffs were going to lose as well, so what do I know. It’ll be a long time before we know for sure what the outcomes will be.