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The reverse Ashby

You have to admit, this is kind of clever.

Sue me!

A Houston developer has filed a pre-emptive strike against the owners of a luxury high-rise near the Galleria to head off an “inevitable lawsuit” over its plans to build a tower next door.

“We’re a little bit in shock,” said Karen Brown, president of the Cosmopolitan Condominium Association, which is now a defendant in a lawsuit filed by the developer this week in Harris County.

Brown said Wednesday that her group met with the developer, Dinerstein Co., several times to discuss homeowners’ concerns over the size of the proposed tower, its proximity to their own 22-story building, and related traffic and safety issues. She said the association wants the building to be half as tall and 100 feet farther away.

“They want to build a 40-story building 10 feet from us,” Brown said. “We think that’s unreasonable.”

But she said she was surprised to learn that the owner of the lot next door, an affiliate of Dinerstein Co., had filed suit against her group.

The dispute concerns a proposal to build a high-rise condo on the northwest corner of Post Oak and San Felipe, adjacent to the Cosmopolitan, 1600 Post Oak Blvd. The developer purchased the 1.5-acre parcel, currently a shopping center, last year.

In its lawsuit, the developer is asking for a declaratory judgment prohibiting the homeowners association from asserting a nuisance claim for the construction of the tower. It also wants a judge to declare that the association does not have standing to assert an action “based on alleged violations of city ordinances.” Attorney’s fees are also being sought.

The developer claims in the lawsuit that it addressed concerns raised by the condo owners by modifying the proposed building’s design. The changes included lowering the height of the parking garage, allowing it to line up with the Cosmopolitan’s garage; moving the building’s cooling systems to the roof; and designing the structure so views from the Cosmopolitan would be less obstructed.

Basically, “we’re suing you before you can sue us”. Well, the best defense is a good offense, so one can see the allure. Nancy Sarnoff adds a few details.

“It’s an interesting strategy for the developer to file first and to be the plaintiff,” said Matthew Festa, a South Texas College of Law professor who specializes in land-use issues.

But other than the role reversal, “it’s replay of the Ashby,” said Festa, referring to the nearly 10-year-old case in which homeowners opposed a developer’s fully entitled plans to build a residential tower in their upscale neighborhood near Rice University.

[…]

In a paper presented at a land-use conference in Austin last year, Houston real estate lawyer Reid Wilson wondered if nuisance law could become a routine land use weapon to oppose new development in what he calls “nuisance zoning.”

“Nuisance law is intended to protect an owner from adjacent uses which substantially interfere with the owner’s use and enjoyment of their land,” he said. “The problem is that nuisance is determined by a judge, so a developer never knows for sure if the ‘nuisance zoning’ will apply until the judge rules.”

In the Ashby case, the plaintiffs argued multiple claims, including that the high-rise would worsen traffic and block sunlight, and that its construction would damage the plaintiffs’ house foundations.

Wilson, whose firm defended the Ashby developer in litigation, said nuisance law needs to be clarified. He hopes the pending opinion in the appeal will do just that.

See here for all my prior Ashby blogging, and here for more on the appeal of that verdict, which who knows when will be resolved. I’m just gonna keep the popcorn warm and see how this goes. Swamplot has more.

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  1. […] noted in the story, one of the legacies of the Ashby highrise is the reverse Ashby lawsuit that was recently filed. You have to wonder if we’d be having these issues now if we’d […]