Off the Kuff Rotating Header Image

Ashby highrise

Appeals court reverses Ashby damages award

It’s kind of amazing to me that the Ashby Highrise saga is still a newsmaker.

Sue me!

In a major ruling that could stymie future legal challenges against developers, a state appellate court has reversed a key portion of the 2014 judgment awarding damages to residents opposed to the controversial Ashby high-rise.

Neighbors of the residential tower proposed for 1717 Bissonnet at Ashby had claimed it would reduce the value of their homes, intrude on their privacy and create a slew of other problems. A judge in Houston two years ago concluded there was no way to legally stop the project.

But he said the residents were entitled to $ 1.2 million in damages, even though construction had yet to begin.

The eagerly awaited opinion filed Thursday in the 14th Court of Appeals is a big win for the Houston development community and it brought the partners involved a sense of vindication as they prepare to move forward with the project.

“A decision to uphold damages in this type of case would have set a dangerous precedent for urban growth and economic prosperity, not just in the city of Houston but throughout the state of Texas,” Matthew Morgan of Houston-based Buckhead Investment Partners said Friday. “We are grateful to the Texas Court of Appeals for making it clear that zoning by nuisance law is not how things get done in Houston, Texas.”

The reversal applies to damages awarded to 20 homeowners near the site at 1717 Bissonnet and Ashby where Buckhead has been planning a 21-story residential tower the company said it still plans to build in the leafy neighborhood near Rice University.

[…]

Thursday’s opinion also reversed the ruling that the developers would have to pay the homeowners’ legal fees.

The appeals court affirmed the remainder of the judgment, including the trial judge’s refusal to grant an injunction halting the project.

In recent years and likely a result of the earlier Ashby ruling, property owners in Houston’s urban core have filed lawsuits to stop developers from building.

If the court had upheld the damages, it would have set a precedent for future cases, said Matthew Festa, a professor at Houston College of Law who specializes in land-use issues and who testified for the developers’ side during the December 2013 trial.

“Basically it would have hung a million-dollar price tag on the building permit,” he said.

A copy of the decision is here. The original ruling was made in 2014, and we are past the tenth anniversary of this case. As the story notes, the residents could try again after the thing gets built and it is shown to lower their property values, but who knows if that will ever happen? Despite the setback, as a Swamplot commenter notes, they’ve delayed the project well past the real estate boom time in Houston, and if nothing else bought themselves at least a decade of not having this highrise as their neighbor. Not that bad an outcome no matter what happens next, really.

Will the Ashby highrise ever get built?

Who knows?

Sue me!

Penelope Loughhead’s house in the leafy neighborhood near Rice University abuts the land where, nearly a decade ago, a proposed high-rise sparked a land-use battle that resonated citywide and throughout the local development community.

This week marks two years since a judge ruled the proposed Ashby tower could go forward after a monthlong trial and jury verdict that agreed with residents that the 21-story tower would be a nuisance to surrounding property owners. The judge agreed to some of the roughly $1 million in damages jurors assessed against Houston-based Buckhead Investment Partners but denied residents the permanent injunction they were seeking to halt the project.

Yet the 1.6-acre lot sits empty as both sides await a decision on their appeals.

“It feels like we’re in limbo,” Loughhead said. “We’re in the dark. We know they are allowed to build, but no ground has been broken.”

The developers declined to comment, citing the ongoing appeals process. They did not answer questions about the status of the project, although they previously told the Chronicle that the construction was moving along despite the appeal.

[…]

Attorneys for both sides made their cases during an appellate hearing in September. A decision could come down any day, attorneys say.

In documents filed with the 14th Court of Appeals, the attorney for the developers, Raymond Viada, argued against the damages that jurors awarded 20 residents who live near the Ashby project’s 1717 Bissonnet address. He wrote, in part, that the developers altered plans for the project after the jury’s decision and before the injunction hearing. Therefore, the project discussed in trial, which was ruled by the jury to be a nuisance, was no longer what his clients were proposing.

Viada wrote that the developers, who have already invested $14 million in the project, changed plans to reduce lighting from the garage, place planters on the amenity deck to add privacy and reconstruct its foundation to limit the impact of damage to surrounding homes. He wrote that the developers expect to net $72 million in profit if the project is not stopped.

See here for all the Ashby blogging you can stand. As I said the last time, it really boggles the mind to realize how long some lots in extremely desirable parts of town have been empty. The old Robinson Warehouse, Allen House, The Stables, and Ashby sites have been fallow for going on ten years. They remained unbuilt through a multi-year real estate boom that was especially hungry for inside-the-Loop properties. Now, in the midst of a low-oil-price downturn, it’s hard to imagine any of them changing status any time soon, and that’s without taking the Ashby lawsuit appeals process into account. I keep thinking that one of these days something will change, but all I’ve gotten for my trouble is that much older.

The Ashby legacy

What hath it wrought?

Sue me!

The plot of land where developers promised the so-called Ashby high-rise would be built in an affluent neighborhood still sits empty.

Yet the 1.6-acre lot at 1717 Bissonnet, which in 2007 sparked a battle that came to symbolize the impact of a lack of formal zoning in Houston, is still high on the minds of land-use experts, city leaders and developers grappling with development policy around the region, an expert panel said Monday.

“We are watching for the repercussions going forward,” said South Texas College of Law professor Matthew Festa, who specializes in land use. “We start in a city without a formal zoning code. But we have a lot of those types of rules.”

[…]

Festa said that with the various land use restrictions in Houston, in the form of minimum-lot sizes, historic districts and residential buffer ordinances, the region has “de-facto zoning.” This has led to many questions and sets up battles over where to build and about density versus preserving what is already there.

He said there are equity issues on both sides.

“Wealthy neighbors pass the hat and hire top-notch attorneys. What happens to the ones that don’t have those resources?” Festa said. “Nowhere is this stuff more intense than land-use battles.”

[…]

There is also an ongoing battle over a proposed affordable housing complex in a neighborhood between Tanglewood and the Galleria. That Houston Housing Authority project is a test case for new federal pressures and a Supreme Court decision that requires that affordable housing is built in high-opportunity neighborhoods, said Kyle Shelton, a researcher with the Kinder Institute at Rice University.

“It intimately ties into the same debate as Ashby,” Shelton said. “It raises the question for Houston: Does this ‘de-facto zoning’ get us a Houston that works for everybody? Ashby provided an interesting contradiction for Houston.”

Festa, who testified for the developers’ side during the Ashby trial, said he has watched the case since the beginning. He said the property rights issue is a sensitive one because people will sense a threat to their homes, their biggest purchase and largest asset.

“Land use really does motivate people,” he said. “It’s the communities that we live in.”

As 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 passed that zoning referendum in the 90s. Be that as it may, I still believe the following: One, the Ashby location was a terrible place for a 21-story high-rise. This Swamplot comment puts it in a way that I hadn’t previously considered but which makes perfect sense. Two, we really need to revisit this issue as a city. What are the legitimate ways that a homeowner or neighborhood can oppose a proposed development near them? Combat by lawsuit isn’t doing anyone but the lawyers any good. And three, will the inner city’s best known long-vacant sites like the Ashby location and the Robinson warehouse ever get redeveloped? Now that we’re on the downslope of the last economic boom, it’s hard to see why anything would change if it hadn’t during the good times. The Robinson site will “celebrate” ten years of nothingness in January (the Ashby site will hit that mark later next year). When you consider how much construction has occurred around it in that time, it’s almost mind-boggling. Maybe they’re just cursed, I don’t know. We’ll see what happens next when there’s a ruling in the Ashby appeal.

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.

An outsider’s view of the Ashby Highrise

From Governing.com. It contains the Z word, so you might want to shield the eyes of innocent children and Joel Kotkin.

Sue me!

Whatever views one may hold about a city without zoning, it’s hard to deny that Houston has done pretty well for itself over the past generation or so. Its population has grown faster than that of almost any other American city. Its unemployment rate is among the lowest. It continues to attract new businesses no matter what slogan it chooses to adopt for itself. And a growing number of scholars, notably the urbanologist Edward Glaeser, have argued that Houston has done well precisely because it imposes so few restrictions on development.

But will a developmental free-for-all bring Houston the same heady results in the coming decades that it brought in the preceding ones? Or is it, at long last, time to impose a little more order on the unwieldy metropolis? Those are questions that Houston’s development community has spent the past couple of years trying to puzzle out, as it has negotiated the twists and turns of a legal event known to just about everybody as the Ashby case.

[…]

At a minimum, a comprehensive zoning code would dramatically revalue properties all over the city, amounting to a substantial redistribution of private wealth. No elected city leader, not even an outspokenly progressive one like [Mayor Annise] Parker, is going to advocate that.

But neither would it be correct to suggest that free-for-all development will proceed in the future as it did in pre-Ashby times. A precedent for awarding nuisance damages has been set, assuming it is not reversed on appeal. The concessions offered by the Ashby developers over the past seven years seem certain to place pressure on others building where there is significant local opposition. The city government, while backing away from zoning, will be asked to impose new regulations on future projects. One such rule, allowing neighborhood groups to apply for minimum lot size restrictions, has already become law.

But the most interesting question emerging from the case may be whether it will lead to more large infill projects in the central areas of the city. On the one hand, the court and the city government have made it clear that Houston’s build-it-anywhere legal structure will remain more or less intact. On the other hand, the sheer amount of time and effort required of the developers on the Ashby project may send a signal that it remains easier and cheaper to build in the exurbs where they do not have to deal with entrenched community feeling.

Or, still another possibility — developers might draw the lesson that there is plenty of useful work to do in creating urban density, but they have to go about it in a more sensitive and appropriate way than they did on Ashby. That might be the best outcome of all.

One must always be careful to distinguish between the city of Houston, which has grown modestly over the past decade or so, and the greater Houston area, which has grown like gangbusters. Much of that growth in places that aren’t Houston proper has been in empty, generally unincorporated areas. Those places don’t have zoning either, of course, but I think it’s fair to say that the widespread availability of undeveloped land in close proximity to a major urban center is at least as big a factor in the Houston area’s growth as the presence or absence of any municipal codes. San Francisco may be a Kotkinesque nightmare, but I’m pretty sure that if a few hundred square miles of empty turf within commuting distance of the Bay Area were to suddenly materialize, developers would trip over each other rushing out there to buy it up for whatever pieces of cul-de-sac heaven they could build. Anyway, I posted this mostly to provide a recap for anyone who needs to be caught up on the topic, and also because I like the author’s vision of an ideal outcome. These things never happen, of course, but it’s nice to think about once in awhile.

Finally, as an aside and because I don’t feel like writing a separate post for this, the plaintiffs in the Ashby lawsuit – you know, the guys who won the judgment against the developers – have now filed an appeal as well; the developers filed their motion to appeal a couple of weeks ago. They weren’t satisfied with just the money, they don’t want it to be built, which the judge refused to forbid. So we’ll get to litigate this all over again soon enough.

More on San Felipe Highrise Lawsuit II

Here’s the Chron story on the latest adventure in urban planning via the courtroom. The basics are covered here so I’m going to cut to the speculation about effect.

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.

Another San Felipe highrise lawsuit

It’s like deja vu all over again, only different.

A NEW LAWSUIT filed last week against the developers of the 2229 San Felipe office tower currently under construction between Shepherd and Kirby is a bit different from the one that a group of neighbors initiated against the same party back in February, a reader notes. The plaintiffs in the new lawsuit are the owners of a River Oaks home directly across the street from the construction site, and they appear to have studied the ruling issued in the Ashby Highrise lawsuit carefully. (Back in May, Judge Randy Wilson ordered the developers of that building to pay neighbors $1.2 million to compensate them for “lost market damages,” but denied their request to halt the building’s construction)

Unlike their neighbors who sued before them, the residents of 2237 Stanmore Dr. are not seeking to prevent or delay the construction of Hines’s neighborhood office tower. Instead, it appears they are only seeking compensation for both public and private “nuisances” created by the 17-story building, including pollution, noise, and ground vibration during its construction and the resulting loss of sunlight and rain on their property.

See here and here for the background. Funny thing about precedent, it just keeps popping up again and again. If the developer community didn’t like the Ashby result, they’re really going to hate this lawsuit. Not much else to do for now but keep an eye on it. Prime Property has more.

Judge will allow Ashby to rise

We have a decision.

Sue me!

Developers can move forward with the proposed Ashby high-rise after a much-anticipated ruling Thursday by a judge who agreed the tower is a nuisance for its immediate neighbors but concluded there was no way he could stop the project or determine a more appropriate alternative.

“If an injunction is granted, there is no question but that it will have a chilling effect on other developments in Houston,” wrote state District Judge Randy Wilson, a stance that drew mostly positive comments from the development community for eliminating uncertainty for groups considering future projects.

But Wilson also awarded $1.2 million in damages to 20 of those residents who had filed suit against the developer, Buckhead Investment Partners of Houston. While that is $438,000 less than a jury recommended in December, it still reflects a belief that those who live closest to the project, on a 1.6-acre site at 1717 Bissonnet, will see their property values suffer.

In firmly denying the residents’ primary request, however, Wilson said a permanent injunction would be difficult to enforce and would invite an “endless series of lawsuits” testing various tweaks and revisions to the project’s scope.

“A 21-story residential development is believed by the neighbors (and the jury) to be too big,” Wilson said in the ruling. “However, this court has zero evidence with which to find what size is just right.”

[…]

Buckhead welcomed the ruling but said it would appeal the monetary damages. It also said construction will resume as soon as possible.

“With hundreds of new Houstonians moving to our city each day, this type of urban housing option is becoming increasingly more necessary and desirable,” the company said in a statement. “We remain concerned about the dangerous precedent that any fully entitled and lawfully permitted real estate project may be penalized by the awarding of damages.”

Jean Frizzell, attorney for the disappointed residents, said they are considering their legal options.

“This case has never been about money and has always been about their community and homes,” he said in an email.

Via Swamplot, you can see a copy of the judge’s order here. Judge Wilson mentioned the z-word (“zoning”, for you non-Houstonians) in his decision, which undoubtedly had a lot of people crossing themselves and fashioning garlic necklaces. I said before that I had no idea what he should do, but this seems as sensible to me as anything. Not that it matters in some sense, since it’s going to get appealed – the developers have already said they’ll appeal the damages award, and the residents may appeal the go-ahead for construction, which will happen straightaway barring any further rulings or injunctions. It will still be a few years before the last chapter of this story is written. Prime Property and Hair Balls have more.

Everybody wants to help the judge rule on the Ashby lawsuit

I really don’t envy Judge Randy Wilson the task he has.

Sue me!

Lawyers aren’t the only ones peppering the judge in the Ashby high-rise case with last-minute paperwork. A former city councilman, a pro-developer interest group and residents who live near the planned tower have all submitted pleas in hope of influencing his decision. One arrived in an email addressing the judge in the case by his first name and closing with, “Sent from my iPad.”

In addition to formal correspondence from the lawyers who participated in the monthlong trial that resulted in a jury verdict that favored opponents, four other letters and a friend-of-the-court brief from a Houston attorney also have been entered into the official court record since state District Judge Randy Wilson heard their final arguments to a week ago.

[…]

Peter Brown, director of Better Houston, a nonprofit urban planning group, sent a letter to the court also. In the letter, Brown, who was on City Council from 2006 to 2010, also sided with the residents.

“A ruling in favor of the developers in this case would perpetuate the unplanned, hap-hazard, inefficient development patterns which negatively impact city life,” Brown wrote in part. “A ruling in favor of the developers would unnecessarily limit the authority of the City to enact reasonable rules, standards and incentives to promote important initiatives now underway.”

He recommended downsizing the tower to seven stories or 90 feet and to require a public space. He also suggested the judge mandate a basic overhaul of city development regulations to ensure more security for developers for future projects.

The Houston Real Estate Council took the side of Buckhead in its statement to the court. The group noted that an earlier friend-of-the-court brief submitted by Houstonians for Responsible Growth, a nonprofit that represents developers, which argued against a permanent injunction for a project that otherwise complied with city regulations and state law.

See here, here, and here for the background. I truly have no idea what Judge Wilson should do, or what he might do. The only thing I feel confident about is that someone will appeal his ruling, whatever it is.

Will the Ashby Highrise ever be built?

The Chron reviews the bidding so far prior to Monday’s Ashby hearing.

Sue me!

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.”

I have no idea what he will rule. We’ll just how quickly he produces his opinion. Prime Property and Stop Ashby Highrise have more.

City asks court to let Ashby Highrise be built

Interesting.

Sue me!

The city on Friday asked a judge to let the Ashby high-rise project go forward after seven years of wrangling and a recent jury verdict in favor of nearby residents who oppose the 21-story tower planned for 1717 Bissonnet.

City Attorney David Feldman said halting construction of a project that satisfied the regulations in place at the time it was granted a permit would “irreparably impair future developments in the city.”

“The uncertainty surrounding the outcome of such lawsuits would hinder developers from financing, leasing and constructing real estate developments in Houston, which require long-term secure contracts,” Feldman wrote in a letter delivered to state District Judge Randy Wilson. “We urge the court to consider the serious public policy considerations involved.”

[…]

“We’re not endeavoring to take a position in this specific situation,” Feldman said Friday. “It’s a broader question of whether, in a city such as ours without zoning, development can reasonably be expected to occur if a developer that complies with all laws and deed restrictions can be enjoined from building … What kind of effect would that have on development in a city such as ours? That’s the point that we felt was important to raise with the court.”

The city’s stance surprised Earle Martin, one of the residents who brought the suit. He said that even when the city settled a separate lawsuit with Buckhead in 2012, Mayor Annise Parker continued to insist the project was not suitable for the area.

“The letter is completely inconsistent with what the mayor has said so far,” Martin said. “I cannot understand this. I’m sure there is pressure from the development community.”

[…]

Expert testimony presented during the monthlong trial showed the building would severely damage several homes, causing walls to lean, foundations to crack and pipes to shift. The jury also heard evidence that the project would cause significant traffic problems, and that it is out of place and abnormal in the neighborhood.

Residents’ attorney Jean Frizzell said Friday that the city letter ignores evidence presented at trial that the developers misled the city to obtain permits, and that an ordinance enacted after the battle began ensured similar projects could not be built so close to existing homes.

“This letter appears to ignore that,” Frizzell said.

Josh Sanders, executive director of Houstonians for Responsible Growth, a nonprofit organization that represents developers, said the city weighed in on the court case because stopping the project would have a major impact on development. His group submitted a friend of the court brief, which Feldman referenced in his letter, that argued against permanent injunction.

“The city is stepping in and saying, ‘Why are you overriding our regulatory structure?’ ” Sanders said. “If a permanent injunction is granted, it throws all the rules out the window.”

See here for the last update. I’m really not sure what to make of this. I get where the city is coming from, and as you know I never really believed the plaintiffs had a case, but neither do I think the regulatory structure is sacrosanct. If this lawsuit has shown it to be fatally flawed, then let the court do its job and allow for a remedy. I’m skeptical this is the case, but let’s let the judge sort it out. Final arguments are today about whether the project can go forward, and I’m sure whatever the judge says it will be appealed. What do you think?

No stopping the San Felipe Skyscraper

Not at this time, anyway.

A Harris County district court judge has denied an opposition group’s request to immediately halt construction on a 17-story office tower in a River Oaks area neighborhood.

The group, which filed suit in February against the project at 2229 San Felipe being developed by Houston-based Hines, has said it will continue to fight the tower.

Its lawsuit argues the project would be “abnormal and out of place” in the neighborhood. Last week, five more residents joined the six who sued, and attorneys targeted the contractor, Gilbane Building Co., in addition to the developer.

In its request for a temporary restraining order, the group claimed that since the work on the site began in December cracks have appeared in residents’ patios, noise and exhaust from construction equipment have invaded properties and property values have dropped by the day.

The group also claims that the developers and contractors hope to progress far enough into construction to reach a “point of no return.”

Both sides presented arguments to State District Judge Elaine Palmer Thursday. She denied the request for a temporary restraining order, which would have immediately stopped construction for a short time. The resident group plans next to request a temporary injunction, which would halt construction, but for longer.

In a response to the restraining order request, the Hines attorneys argued the residents cite no legal reason supporting a drastic action like stopping construction and said the residents offered no substantial proof to back claims for such an “extraordinary” action.

They also said that the project is fully permitted by the city and argued that the city, which has been monitoring construction, has not issued any traffic or noise citations and that there have been no accidents or injuries.

See here for the background. The lawsuit sounds a lot like the Ashby Highrise lawsuit, but I suppose there are enough differences between that project, and that lawsuit, and this one to allow this one to go forward. For now, anyway. We entered uncharted waters with the outcome of the Ashby lawsuit, so who knows what comes next.

Ashby II: Highrise Boogaloo

The Ashby Highrise lawsuit may be over, but its legacy lives on.

A lawsuit seeking to stop a 17-story office tower under development in a River Oaks-area neighborhood blasts the project as “abnormal and out of place” in a grass-roots effort that observers suggest was emboldened by the recent success of the high-profile fight against the Ashby high-rise.

Cranes are already at work at 2229 San Felipe, despite the abundance of “Stop the San Felipe Skyscraper” yard signs in the neighborhood between Shepherd and Kirby. Opposition to the project, under development by Houston-based Hines, has included an online petition with more than 1,000 signatures, a website to fight the development and personal pleas to City Council.

The residents’ lawsuit filed last week in a Harris County civil court argues, among several factors, that the height of the building would interfere with privacy and that it would cause unreasonable traffic delays, devalue surrounding properties and erode the character of the neighborhood.

[…]

Hines spokesman George Lancaster on Friday called the 2229 San Felipe project “an important and appropriate development for an area mixed with residential, commercial and multifamily properties.”

He said it is fully permitted by the city, meets all building codes and legal requirements, and will add landscaping and sidewalks.

He also said it will meet demand for new office space in that part of town.

[…]

Matthew Festa, a South Texas College of Law professor who specializes in land-use regulations, said the new lawsuit suggests last year’s Ashby verdict set a precedent.

“It shows that in a city that is famous for having less restrictive land use, one of the dangers is that particular projects can be opposed on a case-by-case basis by neighborhood groups,” Festa said. “The other thing it shows is that when one group can be successful in fighting a development project, other people are going to follow that model.”

Festa testified for the developers in the trial over the Ashby high-rise, presenting a history of land-use regulations in Houston.

I’ve noted this fight before; as that was before the surprising-to-me victory by the Ashby plaintiffs, I was rather skeptical of their efforts. Given that verdict, however, it would seem the game has changed in more or less the manner described by Prof. Festa. Given how our famous lack of zoning is seen as making Houston a libertarian paradise for developers and a key component to our economic growth, the irony is pretty thick. The two sides are currently in mediation and there have not been any hearings on this yet, so things may change. I don’t have much to add to this other than to say I’ll be keeping an eye on it. The anti-highrise group’s webpage is here and their change.org petition is here; that and their news page has links to a lot of previous coverage of this, if you want to catch up on it. Prime Property, which has a copy of the lawsuit, has more.

Ashby plaintiffs score a win

Most of them, anyway.

Sue me!

A Harris County jury sided with residents of a neighborhood near Rice University and awarded some of them damages totaling close to $1.7 million in their fight to keep developers from building a 21-story high-rise in their midst.

The jury’s unanimous verdict Tuesday ended the month-long trial over a lawsuit filed by 30 residents from the affluent neighborhood against the developers of 1717 Bissonnet, the project widely known as the Ashby high-rise.

The 12-person jury awarded the damages to 20 of the nearby households if the high-rise is built, agreeing that it’s the wrong project on the wrong site. Only those within about one block of the high-rise were awarded damages.

State district Judge Randy Wilson will hold a separate hearing to rule whether to let the project go forward. No date was set, but it will likely be after Jan. 1.

[…]

Developer Matthew Morgan of Buckhead Investment Partners was shocked by the jury’s decision and said it may have widespread fallout on development in the city.

“We are kind of dismayed by the decision of this jury and are hopeful this court will allow us to move forward with the project,” Morgan said. “This is a dark day for the future of the real estate development business, not just in Houston but in the entire state of Texas.”

The developers said they will appeal.

See here for who was awarded what; here, here, here, and here for my blogging about the trial; and here for the Prime Property coverage. I’m more than a little surprised that the jury awarded damages to the plaintiffs, but I’ll be really surprised if that stands up on appeal, and that’s without taking the Supreme Court’s anti-plaintiff bias into account. First we’ll see if the judge lets the construction go on as planned or if he moves to block it. If he lets it proceed, we might see appeals from both parties. And here I thought this was coming to some kind of conclusion.

Ashby trial update

We’re more than two weeks into the Ashby highrise lawsuit trial, and the defense is now presenting its case. Let’s check in on them, shall we?

Sue me!

One of the developers hoping to build a high-rise near Rice University made a personal appeal as the defense portion of a lengthy civil trial got underway Wednesday in state District Court.

“I grew up in this neighborhood. I have a great fondness for it,” Kevin Kirton, CEO of Houston-based Buckhead Investment Partners, told jurors who will be asked to rule on the project’s fate.

He recalled his youth in the area, riding his bike and playing basketball there, and he vigorously defended the 21-story residential project at 1717 Bissonnet, widely referred to as the Ashby high-rise and the object of a very public conflict for the past six years.

“I think this project is good for the neighborhood,” Kirton said. “I think this project is good for Houston. … We have a lot of people coming to town that need a place to live.”

[…]

Kirton pointed on a map to several non-residential projects, existing and planned, in the area around the Ashby site.

They include a synagogue, a catering business, a law office, a beauty parlor and a six-story medical clinic. He noted a planned six-story multifamily development and other new residential projects nearby.

He also noted that the 1.5 acres planned for the site had previously contained a grocery store, a retail strip center and most recently an apartment complex.

“It provides a living option that doesn’t currently exist there,” Kirton said. “We have taken care to design the project to blend with the neighborhood.”

How the proposed highrise fits or doesn’t fit into the neighborhood is of course the dispute. I don’t think it does, but I also don’t think the plaintiffs have any hope of winning. They did survive a motion to dismiss, though, so what do I know?

More from the defense.

The head of an engineering company involved with the so-called Ashby high-rise on Thursday defended the project as structurally sound, countering earlier court testimony that the proposed tower could damage surrounding homes.

Woody Vogt, president of Paradigm Consultants, an engineering consulting firm that had prepared a report about the structure’s impact as part of the city’s permitting process, said he used different calculations to predict the effect of the building on the soil and surrounding foundations.

He said his analysis showed minimal effects on the ground and no adverse effect on the surrounding homes.

A week earlier, another consultant testified for residents fighting the project that 10 existing homes near the site of the high-rise could suffer moderate to severe damage, including cracked slabs, buckled walls and busted pipes. Rick Ellman of New York-based Muesler Rutledge Consulting Engineers predicted the ground would “settle” four inches, as opposed to the one inch predicted by Paradigm.

“The way he went about it was correct, but the numbers he plugged into his equation were not correct,” Vogt said of Ellman’s work.

I’ve been following this case for a long time, and this is the first I can recall there being a claim of potential structural damage to neighboring homes. Damage to property values, sure, plus increased traffic and stuff like that, but unless I’ve just missed this before, it’s new. I can see how that might be a valid claim, but we’ll see. I expect this will wrap up next week. Prime Property has more.

Ashby Highrise lawsuit gets underway

Better settle in and get comfy, we’re going to be here awhile.

Sue me!

The trial that began Tuesday over the Ashby high-rise planned for a neighborhood near Rice University is poised to be a battle of experts.

A Harris County jury will hear arguments for the next four weeks in State District Judge Randy Wilson’s court from attorneys representing the residents of the affluent neighborhood and those of developers of the 21-story high-rise at 1717 Bissonnet.

[…]

Jean Frizzell, who represents the residents, said he will question one of the developers, Matthew Morgan, and call several expert witnesses, including traffic and foundation experts, architects and a horticulturist, as well as a real estate expert, to discuss property values. Of the residents in the suit, 27 will testify.

Fred Cook, who represents the developers, will also question the Buckhead developers. The defense will also present testimony from the project’s traffic engineer, who prepared a traffic impact analysis approved by the city, along with a traffic expert, engineers, architects and an appraiser.

The defense will also present testimony from a law professor who specializes in property rights to discuss land development over time in Houston, and will bring five residents from the neighborhood to the stand who are in favor of the project, Cook said.

Four weeks? Good Lord, capital murder trials don’t usually take that long. (And crazily enough, it could have gone longer.) I obviously don’t know what the plaintiffs have in store, but it’s a little hard for me to see the marginal value of the 27th resident’s testimony. This will either be one of the more entertaining legal events in recent years or it will be a colossal snoozefest. Prime Property has more.

Ashby Highrise trial begins today

This has been a long time coming.

Sue me!

The case in state District Judge Randy Wilson’s court will begin Tuesday and is expected to last four weeks. A jury will hear from the parties involved and experts on both sides to decide whether the project would substantially interfere with the residents’ property rights.

If they rule for the residents, jurors could decide to award damages. The court also has discretion to issue an injunction limiting the size and scope of the project or stopping it altogether.

Jean Frizzell, a Houston-based attorney for the neighborhood group, said his side will present traffic, foundation and architectural experts and a horticulturist to address the potential impact of the high-rise on the Southampton neighborhood. Residents will also testify, he said.

“There are high-rises all over Houston. What’s different about this project is where it’s located,” Frizzell said. “We are not anti-development, per se. This is simply too high-density of a building and there is not enough infrastructure to support it.”

[…]

Josh Blackman, assistant professor at the South Texas College of Law, who specializes in property law, said this case will be monitored closely by developers and by neighborhood groups fighting projects.

“This is really breaking new ground,” Blackman said. “This is the furthest that any residents have tried to challenge something in Houston history. It will set a precedent for what happens with future developments.”

He said a ruling in favor of the neighbors may deter developers and give credence to neighborhood efforts.

“If this is successful, this is one more tool in the arsenal of the neighborhood,” Blackman said. “If the developers win, it shows you aren’t going to win in this town.”

See here for the previous update, and here for all posts tagged “Ashby Highrise”. As you know, my sympathies lie with the neighborhood – I have always agreed that the problem with this development is that it’s in the wrong place – but I’ve never believed they could do anything about it. The project is legal by city standards, and I just don’t think they’re going to be able to show that they’ve been damaged in a way that merits redress. If property values are rising in the neighborhood, it may be hard to show they’ve been damaged at all. On a broader note, while I believe neighborhoods need to have more tools at their disposal to exercise some say over what gets built, it needs to be done within a regulatory framework. Leaving it to the courts is guaranteed to be more chaotic and uneven, and only available to the wealthiest neighborhoods. I’ll be interested to see what evidence the plaintiffs present to back up all the claims they’ve been making over the years, but I remain very skeptical of this.

Ashby lawsuit to proceed

I’ll be darned.

Sue me!

A judge has declined to dismiss a key piece of a lawsuit against the developers of 1717 Bissonnet, a proposed 21-story residential building widely referred to as the Ashby high-rise.

The developers were denied a request that would have thrown out the plaintiffs’ attempt to seek a permanent injunction to halt the project.

The case is now headed for a jury trial set to begin in November.

[…]

State District Judge Randy Wilson issued a denial for partial summary judgment requested by the defendant on Sept. 20.

In a written statement, Buckhead said the petition’s claims are without merit and could lead to a “chilling effect on the development of new real estate projects.”

“This lawsuit is a serious threat to urban growth and economic prosperity throughout the state of Texas,” it said. “If successful, the resulting lack of predictability and uncertainty in the law would invite a flood of similarly styled litigation aimed at stopping projects subjectively deemed as inappropriate or undesirable by any individual or like-minded group of would-be plaintiffs.”

The lawsuit was filed in May. I didn’t think much of its chances, and to be honest I still don’t. But who knows? The old apartments on the Ashby site have been demolished, the developers have their permits, and they vow construction will begin this fall. We’ll see if they’re right.

Maybe the Ashby Highrise isn’t as evil as we thought

Home prices don’t lie, I guess.

Appreciate the appreciation, dude

So far, the controversial high-rise under development near Rice University hasn’t hurt the housing market in the neighborhoods around it.

The average home price in the nearby Boulevard Oaks area was $1.36 million in the first half of the year. That’s up 58 percent over the same period in 2012 and the highest increase among 18 high-end neighborhoods tracked by the Greenwood King real estate brokerage. The average sales price in the adjacent Southampton neighborhood was $1.2 million, up 29 percent from last year.

Homes in those neighborhoods have been selling at a faster clip than many others. The average time it took to sell a house from January through the end of June was 25 days for Boulevard Oaks and 23 days for Southampton, the Greenwood King report said.

Based on the numbers, residents can’t exactly complain their area has been negatively impacted. In an open letter to the developers, residents fighting against the project said the tower at 1717 Bissonnet at Ashby would “devastate” property values.

As you know, I’m no fan of the Ashby highrise. Soaring property values in this highly desirable neighborhood aside, I remain convinced it’s the wrong location for the project. We also have no way of knowing what would have happened to property values in a non-Ashby world. All that said, this is a pretty striking blow against one of the main arguments against this kind of development. Material harm isn’t the only way to measure the effect of having a multi-story building as a neighbor, but the absence of such harm will make it a lot more difficult to get relief from the courts.

Ashby everywhere: The San Felipe highrise

Hard to keep track of them all.

THESE UNDERSTATED “Stop the San Felipe Skyscraper” signs started going up about knee-high this weekend in River Oaks and Vermont Commons to protest that shiny 17-story office tower that Hines is proposing to build nearby. Though these signs — spotted at the corner of Spann and Welch and San Felipe and Spann, catty-corner from the proposed site — might be lacking the services of an imaginative cartoonist like their yellow precursors across town in Boulevard Oaks, their message still comes through, directing the onlooker as well to a recently launched website for all things skyscraper-stopping:

Of course, Hines continues to say through PR man George Lancaster that the company plans to build something “upscale and handsome, befitting its River Oaks address.” The rendering shown here is the most recent version of that; it differs a bit from the one Swamplot published in May that seems to have sparked much of the ire — and which boiled over in what the new website describes as a “heated” and “tense” community meeting last night with reps from Public Works and city council member Oliver Pennington: “Many participants came away from the meeting with the idea that the only way to stop the project will be through immediate legal action.”

“Good luck with that”, said everyone who opposed the Ashby Highrise. You can see the antis’ webpage here. They address what I consider to be the main question here:

Aren’t there already other high-rises in this same area?
There are three other high-rises within four blocks of the site. Of these, two are office buildings that are shorter by several stories. A residential high-rise (the Huntingdon) is taller. Here are the differences:

– All three of the other high-rises are on major thoroughfares with six lanes (Kirby) or four lanes (Shepherd).
– The other high-rises are separated from nearby residences by high walls (Huntingdon), open space (Shepherd), or other intervening structures (Compass building).
– 2229 San Felipe has larger garage capacity but will be surrounded by two-lane streets
– 2229 San Felipe has only a 10-foot setback from the street.

Residential buildings have a much lower density than comparable office buildings. As an idea, the Wingate and St. Honore developments on San Felipe at Revere may add 20-30 cars to an entire block, as compared to the 400 cars being added at 2229 San Felipe.

I have no idea what they’re getting at in that last paragraph. “Density” is people per square mile, so by their own reckoning the 2229 San Felipe building contributes greatly to it. Be that as it may, I have some sympathy for these folks, since that stretch of San Felipe is just like the part of Bissonnet where the Ashby will be – one lane each direction. On the other hand, as they themselves admit, there are three other highrises in the area. It’s a little hard to claim that a new highrise would stand out.

My general rule on these things is whether or not the location makes sense. This one is more of a gray area than others. I don’t think the neighbors will have any luck blocking it, but I suppose they haven’t yet broken ground on the Ashby, so who knows. The one sure thing is that we’ll continue to see situations like this, until either the real estate market inside the Loop gets saturated, or city ordinances get a drastic makeover. I’m not sure which is more likely to happen first.

Ashbys all over

Here’s that Chron story that I mentioned yesterday, which talks about increasing neighborhood resistance to multi-story residential projects in areas that mostly have single-family houses.

Tension mounted as 20 or so Morrison Street residents, armed with city documents and Internet research, squared off with a developer building a midrise apartment complex in their midst.

In a small music room at the Zion Lutheran Church, the residents and developer Terry Fisher debated whether the Woodland Heights neighborhood, known for its century-old bungalows and quirky charm, would be diminished by the apartments.

“It’s a wonderful neighborhood,” Fisher agreed at the meeting last month. “We saw a lady walking down the street with a St. Bernard, twirling a leash with the sun setting behind. It was a revelation that I should build in that location.”

For an hour, neighbors pressed Fisher about traffic, potential sewage problems and property values. One neighbor stormed out; another allowed that she had no plans to be “professional or courteous.”

Fisher kept stressing that he broke no city rules and had every right to develop the property into a five-story, 36-unit apartment complex. Construction is underway and expected to be completed in eight to nine months.

“I moved to Spring for the specific reason I don’t want to live next to a high-rise,” Fisher told the room at one point. “At the end of the day, there is no zoning in Houston.”

“I’m not rolling over anyone,” he continued. “I’m building what is legal for my lot.”

That blunt answer is being invoked more often, as pent-up demand gives way to building projects across the city and into the suburbs – and as neighbors fight back, worried about the impact of the new, often high-density projects.

As I said yesterday, the key issue here is one of location, just as it has always been with the infamous Ashby Highrise. Morrison is a little side street. It’s surrounded by houses. A five story apartment complex will stand out like a zit on a forehead. The developer, who from what I understand is as charming as he comes across in this story, doesn’t care that people bought into this neighborhood for the same reason he moved to Spring. It’s not his problem, and other than putting up websites and Facebook pages, there’s not much anyone can do about it.

I suppose there is one thing that could eventually do something about development like this, and it inevitably comes up in the comments to this post on the Blight In The Heights Facebook page. I’m talking about zoning, of course, that magic yet forbidden word in Houston that means what you want it to mean. We couldn’t have another charter referendum until May of 2015 at the earliest, so even if such a movement were to take place it would happen far too late to affect a project like this. I don’t expect such a thing to happen, and I’m not sure I’d support it if it did, but I bring it up to note that the last time there was an effort to enact zoning in Houston was 20 years ago, and as Campos notes, the vote for it didn’t lose by much. I have no idea what such a vote would look like now, in a very different Houston.

That makes for interesting speculation, but not much more. In the meantime, this is the reality. I think the best you can hope for as a resident near this thing is that it will fail as a business venture, which might have the effect of making other developers a little more leery about building in places where they’re really not wanted. I still don’t know why anyone would want to live in a place like the Ashby Highrise when they must know how much all their neighbors hate it. Maybe after it and the Morrison complex are built, we’ll find out if that is a factor in the where-to-live decision making process.

Ashby developers sued

I don’t know about this.

Sue me!

A group of residents who live near the site of the high-rise planned for 1717 Bissonnet filed suit against the developer in state district court Wednesday, another attempt to stop construction of the 21-story building.

The seven plaintiffs say if the property is built it will cause harm to them and their homes. They are concerned about physical damage to surrounding structures and safety issues associated with construction.

They say the building would stand 260 feet above grade, “casting an enormous shadow over dozens of surrounding homes and blocking sun and rain from reaching the yards of neighboring properties.” The building would “make it impossible for certain of the plaintiffs to maintain their gardens,” as well as affect the privacy of the homeowners.

The petition also says the developer is planning to remove old oak trees, which would “further erode the character of the neighborhood and diminish surrounding property values.” The property is near Rice University and the Museum District.

Officials with developer Buckhead Investment Partners said the suit has no merit.

I gotta say, I’m no fan of the Ashby project, but I’m inclined to agree with Buckhead on this. As we well know, the project violates no laws, and is now properly permitted. How are you going to prove any of these allegations? Anything is possible, and Lord knows there’s no shortage of talented and creative litigators in this town, but my money’s on the defense. The case number is 201326155, and it’s in Civil District Court 80, in case you’re curious. I’d love to hear what the lawyers out there think of this one.

Ashby Highrise gets its permit

Ready or not, here it comes.

Look out below!

The city of Houston [last] week granted full permitting approval for the 21-story apartment building planned near Rice University at 1717 Bissonnet and Ashby.

An existing apartment complex at the site is now vacant and will be demolished soon, the developers recently said. But one major piece of the puzzle is still missing: a general contractor.

Last week, the head of Linbeck Group said the company had withdrawn from the project.

Developers Matthew Morgan and Kevin Kirton of Buckhead Investment Partners said they have nothing yet to announce on Linbeck’s replacement, but information would be “forthcoming soon.”

See here and here for previous updates. CultureMap notes that since Leo Linbeck III lived near the Ashby location, with Linbeck Group out of the project there may not be any force for neighborhood mitigation. We’ll see what the next step is for the folks that have been fighting this for so many years.

Alexan Heights update

The developers of the Alexan Heights project on Yale will go before the Planning Commission tomorrow to get a variance that would remove a single-family restriction on part of the property. Some folks in the neighborhood have been petitioning against the variance. The Leader reports from a meeting that was supposed to be between residents and the developer, except that the developer didn’t show.

Plans submitted by Terra Associates, affiliated with several luxury Alexan apartments throughout the Houston area, show a 350-plus unit complex with 4 stories of apartment units over two levels of parking, one of which is below grade. Currently a mixed-use block in the Maple Heights subdivision, the 3.5-acre site fronts Yale between 6th and 7th, with Allston Street its interior border and the Heights Hike-and-Bike Trail to its north.

Last week, Houston Planning Commission deferred its decision on whether to grant a variance request to replat as unrestricted reserved a single-family portion of the site. Since it has twice-deferred the variance request, however, the planning commission must make a decision at its next meeting, with or without the traffic study reportedly being conducted by the developer and expected in mid-February.

Whether passed or denied, however, a version of the project is likely to advance in some form, said Bill Pellerin, land use committee chairman, who also said neither the committee nor the association has taken a position on the proposed project.

Residents, however, were outspoken on the project’s potential impact on traffic in an already-bottlenecked stretch of roadway, on access and flow, on setbacks, on sidewalks, on drainage and on the overall presence of a mid-rise building abutting an otherwise single-family neighborhood.

“The variance is the project,” one attendee said, calling for residents to give the planning commission “reasons to deny it” and to remind commissioners as well as council members that seeking a variance means something is not in compliance. “Stick to the rules,” said another resident.

The West Heights Coalition is leading the resistance, with assistance from RUDH. I have sympathy for the WHC, but I have a hard time seeing how the Planning Commission denies the variance. There’s a similar high-end apartment complex about a mile north, at 2125 Yale, and between 6th and I-10 Yale is basically all industrial. Yale is a thoroughfare in the way that Bissonnet where the Ashby Highrise will be isn’t. It’s true that the traffic is awful right there, but as far as I can tell that’s because of the traffic light that went in after the I-10 service road was extended west of Yale. You could probably mitigate some of this traffic by building a dedicated right-turn lane for the service road, which is something I know was talked about as mitigation for the Wal-Mart construction. Anyone know whatever happened with that? Tweaking the timing on that light to give a longer green and a shorter red for Yale would also help some. I certainly agree that between this, the Wal-Mart and Wal-Mart-related development, and whatever is to come on the San Jacinto Stone site, Yale is going to become an unholy mess to drive on. But given all that, it’s hard to see how this one project will make that much difference.

More on Ashby Heights

That’s not this project‘s name, but it’s how I think of it.

Canadian developers of a condominium project on a wooded 1.4-acre plot near the Heights Bike Trail and White Oak Bayou late have dropped their request for a variance to develop the site – thereby allowing the city of Houston far less control over their revised plans.

Suzy Hartgrove, spokeswoman for Houston’s planning & development department, confirmed to The Leader that The Viewpoint at The Heights, L.P., altered its plans for “Emes Place” and will now construct a public street over a bridge and install a cul de sac. Earlier plans had called for a private street that would have required a variance and allowed the Planning & Zoning Commission some latitude in approving the project.

Now, said Hartgrove, if the plans meet minimum standards of Chapter 42 of the city’s Code of Ordinances, the commission will have no choice legally but to approve it.

While the initial plans for the property, which borders the hike-and-bike trail and Fifth Street, were for 84 condo units, Hartgrove said the new plans have not specified the density.

City staff was reviewing the new plans to make a recommendation to the Planning Commission, and Hartgrove said she expected it to be on the agenda on Thursday of this week.

See here for the background. I have heard that folks in the neighborhood are pushing for the Planning Department to defer this decision for a month to investigate the developer’s claims about meeting Chapter 42 standards. I think that’s a fine idea, because there’s no other mechanism to put a check on this unloved project if one is needed. Surely it’s part of the process for the city to verify claims about meeting code standards, right? It’s on you now, Planning Department.

On a tangential note, in the event this thing does eventually get built, I have to wonder about the type of person who would want to buy a unit in it. As with the Ashby Highrise, any cursory research on a buyer’s part would make them realize that the vast majority of their new neighbors-to-be despise the building they’re about to move into, and probably will not have very warm feelings towards them as well, at least at first. Maybe it’s just me, but I would feel like that’s a significant negative, more than enough to make me consider other options. These are nice neighborhoods, but they’re not the only nice neighborhoods, and if you can afford a condo in either of these developments, you definitely have other possibilities available to you. What do you think?

UPDATE: Via CM Ellen Cohen’s office, this is what the Planning Department has said regarding Emes Place:

Inner Loop has now revised their plans in order to comply with Chapter 42 of the City’s Code of Ordinances, which governs this type of development. PD has determined that their application now meets the minimum requirements for Planning Commission approval, and the Commission is required by law to approve a subdivision plat application that meets these minimum requirements. This item will be considered by the Commission for a final vote this afternoon and, due to deadlines established by state law, cannot be deferred until a later date.

However, the subdivision plat is only the first step in the development process and any development moving forward must still meet all applicable City requirements. For instance, plans for the street build-out must meet the Public Works and Engineering (PWE) Department’s Infrastructure and Design Manual criteria. No plans for the street have yet been submitted, and when they are, PWE will evaluate to determine if the criteria are met (it is not in the Planning Commission’s purview to determine whether those standards are met.) This will give the City another opportunity to examine whether the developer meets the necessary requirements.

Additionally, the indication on the submitted plat of “future right of way” is being removed. No such right of way has been dedicated, and the City has no intention of buying or condemning any right of way for a private project.

So there you have it.

Et tu, Leo?

At least one person living near the Ashby Highrise is looking forward to its construction.

Coming to a neighborhood near you

Linbeck Group, a general contractor whose top executive lives in the neighborhood adjacent to the building site, is expected to start construction at the beginning of next year.

Executive chairman Leo Linbeck III said the company is taking on the project because it believes it “will be able to do the best job of mitigating the impact of the construction process.”

“I realize that folks may decide to attack us for our involvement. A lot of my neighbors are very unhappy, and I can’t change that,” he said. “But we really are trying to help, and I hope that they appreciate that.”

The developer, who announced Linbeck’s involvement late Wednesday, also said it had partnered with an El Paso real-estate firm, Hunt Cos., to develop and finance the project.

[…]

Bill Scott, division president at Linbeck Group, said the high-rise will be a technically challenging construction project. If it’s going to be built, “it ought to get built by someone that can do a very good job and can do it safely.”

Yes, if it’s going to be built at all it may as well be built well. As Swamplot notes, the construction schedule has slipped a bit since the last update, but on the other hand they now have funding, and that’s more important. We’ll see how much trouble gets stirred up as this proceeds.

Ashby everywhere

Nancy Sarnoff notes a trend.

Coming to a neighborhood near you

Homeowners in the Memorial area held a meeting last month in the lobby of a nearby medical office building to discuss what to do about a large apartment complex being planned in their neighborhood.

They said the project – and other new developments in the area – would lead to too many cars on the narrow, curvy road in front of the apartment site, making an already busy area more congested and dangerous. The residents have spoken at City Council meetings and are planning to commission a traffic study they expect will show severe mobility problems in their upscale neighborhood near Fondren and Woodway.

“We’re intelligent enough to understand that something is going to be built there,” said Rod Crosby, president of the Lake Vargo Homeowners Association. “But we want answers on how that would work out.”

Similar situations have emerged elsewhere around the Houston area as homeowners are increasingly coming together to fight what they see as inappropriate development in their backyards. The instances appear to stem from an improving economy, a stronger interest in urban living and increased development.

The battles have ranged from letter-writing campaigns to carefully planned strategies involving private meetings, public protests and political outreach.

Arguably the strongest example yet involves the so-called Ashby high-rise. Residents of the affluent neighborhoods surrounding the proposed residential tower near Rice University have been protesting the project for years. They’re still fighting against it even though the city said there was nothing that could be done to stop it. The developer recently applied for a construction permit.

The well-publicized battle may be encouraging others groups to take on unwanted development.

“The Ashby protests have definitely provided a blueprint for other neighborhoods to show they can at least make their case in the court of public opinion,” said Matthew Festa, a South Texas College of Law professor who specializes in property law and land use.

I’m not sure how good a model the anti-Ashby activism has been given that construction is scheduled to begin on the hated highrise, but then I suppose there aren’t any better examples to follow. I’m just going to keep flogging the theme that increased density requires increased investment in transit, walkability, and other non-automotive infrastructure. The traffic concerns are real, whether any one location is suitable for a highrise or apartment development or whatever else. We have to give people viable alternatives to the increasingly crowded streets.

Ashby set to rise

Ready or not, here it comes.

Look out below!

Construction on the 21-story luxury apartment building at 1717 Bissonnet is scheduled to begin by the fourth quarter of this year and is expected to take 18 to 24 months to complete.

Kevin Kirton of Buckhead Investment Partners, which is developing the project, said he plans to go to the city for permitting in the “very near future.”

The project, which has become known as the Ashby high-rise, still doesn’t have an official name, but has faced objection from the surrounding community because of its location in a mostly residential area. Neighbors fear that the massive building will have a negative effect on traffic and property values.

Yes, it does have an official name. It’s the Ashby Highrise. I don’t care what the developers eventually decide to call it, it will forever be the Ashby Highrise. Frankly, Kirton should save us all some trouble and just formalize it.

One more thing:

In addition, Kirton expects the project to create 2,500 full-time jobs and generate $1.5 million in tax revenue annually.

The high-rise will feature a restaurant, but the developer has done away with plans for a day spa and significant amount of office space to reduce traffic headaches. In addition, the project was originally planned as a condo project, but is now a luxury apartment building due to market conditions, Kirton said.

Um, what? 2,500 full-time jobs? Based on what, exactly? I’m trying not to be snarky here, I’m trying to envision how a mostly residential building could possibly do that. Do you think Kirton has an economic study stashed somewhere, or did he throw that out to see if it would get reported as is? Help me out here, I have no context for this, it just sounds ridiculous to me. What do you think? Swamplot has more.

Discussing the Z word

I have three things to say about this.

Going up whether you like it or not

The go-ahead for the Ashby high rise has left me feeling really depressed. If affluent residents with all their political and social connections can’t keep a 21-story skyscraper out of their bucolic neighborhood, what hope is there for the rest of us?

When Mayor “I’m against the project, but I can’t do anything about it” Parker touts lopping two stories off and instituting a shuttle service that few people will likely use as some sort of neighborhood victory, you know it’s time to talk about the “Z” word.

Yes, zoning.

The fact of the matter is that Houstonians have virtually no tools to stop developments that promise to irrevocably alter the character of a neighborhood. As my CultureMap colleague Katie Oxford has written, why do developers build such projects in the face of overwhelming neighborhood opposition?

Because they can.

[…many examples of development projects that neighborhoods don’t like…]

I realize that critics will carp that those opposing such projects are elitists with a “Not in My Backyard” mentality. However, I don’t think there’s anything wrong with fighting to preserve the character and integrity of Houston neighborhoods and asking for an orderly process of notification and neighborhood input before construction commences.

One thing seems clear: This messy patchwork of limited protections doesn’t seem to be working well. That’s why I think it’s time to talk about land use and — yes —zoning.

Otherwise it will only get worse.

1. I don’t know how you can discuss having a conversation about the Z word without at least mentioning the C word – “charter”. Zoning is forbidden by the city’s charter, so unless you’re also talking about organizing an effort to repeal that charter amendment, the discussion you want to have is strictly academic.

2. More basically, if you want to have a conversation about zoning, the first thing you really need to do is define exactly what zoning is. I say this because “zoning” is a shibboleth, used primarily as a code word for “horrible government overreach that destroys cities”. Just look at the comments in this article to see what I mean. On the flip side, since author Pugh never talks about what zoning is or what a zoning ordinance might do to deal with the problems he identifies, it’s also code for “magic government powers that can prevent whatever awful development I don’t like from being approved”. It’s kind of hard to have a productive discussion starting with those premises.

3. Beyond all that, there are plenty of options that aren’t zoning to give neighborhoods the ability to push back on development they object to, including things like minimum lot sizes, setback requirements, and form-based codes. The city is still working on its revamp of Chapter 42, which governs a lot of these things. Perhaps a better use of one’s time would be to catch oneself up on these things, and get involved in that process. At least it won’t require a charter amendment to get it done.

When will Ashby rise?

Real Soon Now, developers promise.

Going up whether you like it or not

After more than four years in the works, the so-called Ashby high-rise is expected to break ground by year-end.

A lawsuit keeping the project from being built was settled last week. The proposed building pitted the developer against the city of Houston and a well-to-do neighborhood – some of whose residents went to great lengths to stop the Ashby project.

“A few may continue to complain, but this development will not be stopped because good projects always get built,” developer Matthew Morgan said in a written statement. “The settlement of this lawsuit should send a clear signal to them that any similar attempts to delay the project will not succeed.”

[…]

If the project breaks ground before the fourth quarter, units could be available by the end of 2013 at the earliest.

Anyone want to place a bet on that happening as claimed? I don’t put a whole lot of stock in the saber-rattling of the neighborhood, but I do think the city is going to check very closely to ensure all I’s are dotted and T’s are crossed on every permit application, and won’t give them any slack on blocking the streets. That ought to be good for a slipped deadline or two. I also have a hard time believing this project will be completed before Regent Square or whatever was supposed to be built on the site of The Stables, but maybe that’s just me. So I’m curious, do you think Buckhead can back up that claim, or are they just blowing hot air?

Mayor tells Ashby foes it’s over

Mayor Annise Parker told the attendees at that neighborhood meeting to discuss the proposed settlement of the Ashby highrise lawsuit that it’s a done deal.

Going up whether you like it or not

“We have exhausted all legal means to stop this project,” said Parker, reiterating her opposition against the project.

Next week, Buckhead and its architects will begin meeting to make changes to the plans based on the settlement, said Buckhead’s Kevin Kirton.

Residents who have spent years fighting the project expressed further disappointment at Monday night’s meeting at Congregation Emanu El.

“I feel wholly deflated,” said Jim Reeder, co-chair of the Stop Ashby High Rise Task Force.

The Stop Ashby folks expressed their opinion of the proposal before the meeting. I can’t tell from the Chron story how, or if, their concerns were addressed, but Your Houston News tells us a bit about what was brought up.

Going back to 2005, documentation existed – both with the Southampton Civic Club and the City of Houston- indicating knowledge of this development taking shape, but know one publicly acknowledged or acted upon it.

http://www.yourhoustonnews.com/river_oaks/news/a-lesson-in-civics/article_aa6b7d0e-3765-52bc-8792-ba9db194b853.html

http://www.yourhoustonnews.com/west_university/news/drainage-documents-pointed-to-high-rise-in/article_7b3fe94f-3b06-5e3f-a6fb-f2ef7ce3c049.html

I can only imagine where our neighborhood would be today if the folks referred to in these articles – key figures at both the Civic Club and community as well as elected officials at the city –had acted to stop the project back then, instead of waiting until 2007 to begin publicly admonishing the project. It may be coincidence, but the same folks came together to support a similar high-density project in the Rice Village area during that time. Early opposition to the Ashby high-rise at that time could have jeopardized the project in the Village area – the one in which the city faced opposition from area residents and which involved the selling of a block of Bolsover Street to developers by the city.

Many folks listed in those articles – Kathy Easterly, Erik Eriksson, and others – were in attendance at this meeting, but chose not to speak. In fact, other elected officials, including At-Large Position 1 Council member Stephen Costello, former At-Large Council member Sue Lovell and others, were in attendance but also chose not to speak. The former District C council member, Southampton resident, and former president of the Southampton Civic Club, Anne Clutterbuck, was not in attendance.

Many more folks lined up at the microphones to comment and ask questions that, according to the mayor, were put into the public record. Comments ranged from a passionate plea by one resident questioning safety measures that would protect her child from harm by speeding traffic being forced onto Wroxton Road by the new construction to demands that the city forcibly take the property by eminent domain. Another resident, once again, floated the idea that the city could create a nonprofit entity by which residents could begin the process of raising money to buy the property from the developers – an idea that a representative of the developers attending the meeting said they would consider.

I don’t know what Mayor Parker or City Attorney David Feldman said to these concerns, but this is what I would have said: 1) Wroxton is still going to be a little side road with a lot of stop signs on it. More stop signs, and maybe some speed bumps, can be added if needed. No one is going to drive on Wroxton if they want to get somewhere in a hurry. 2) Under what pretext, exactly, would the city invoke eminent domain that wouldn’t subsequently be laughed out of court in the ensuing lawsuit? 3) Buckhead asked for $40 million in damages in the lawsuit the city is now settling. While I’m sure they’d have accepted a lower price for a buyout, I’m also sure there are better uses for the money.

The bottom line is that in a city with no zoning and relatively few constraints on development (at least, at the time this project was first proposed), what exactly was there for the city to do about this? I understand the residents’ concerns, and I have a lot of sympathy for them. I agree this is a poorly conceived and poorly located project. It’s entirely possible the city could have gotten a better settlement, though given the empty hand they were playing it’s hard to see how. We all knew how this was going to turn out, barring a loss of nerve or some kind of implosion on Buckhead’s part. What else was there to do?

Anyway. Here’s a photo gallery from the meeting. Did anybody here attend this? If so, what was your impression? Prime Property and Swamplot have more. Be sure to read this comment for an interesting prediction about what may come next.

City to meet with anti-Ashby forces

I’m not sure if they’re at anger, denial, or bargaining yet, but we’ll know soon enough.

But not quite as high as before

The city of Houston plans to meet with residents of the Southampton and Boulevard neighborhoods March 12 to discuss the Ashby high-rise settlement.

In an email to members [last] Friday, the Stop Ashby Highrise Task Force said its leadership was “distressed” to learn about several conditions of the agreement to end litigation filed by developer Buckhead Investment Partners. Among those, the inclusion of 18 more apartment units than would not have been acceptable bases on a traffic impact study of Bissonnet and Shepherd streets.

“It was never our understanding that the city had the intention or the authority to ‘stop’ the Ashby High Rise, but we did expect the city to use its authority to mitigate the impact of the project if it were to be built,” the email said.

[…]

The community meeting will be held at 6:30 p.m. March 12 at Congregation Emanu El, 1500 Sunset Boulevard.

If anyone goes to this, please give a report on what happens.

City to settle Ashby lawsuit

Another saga draws to a close.

But not quite as high as before

Mayor Annise Parker has sent a letter to residents of the Southampton area saying the city has no legal basis to stop developers from building the controversial Ashby high-rise as outlined in their 2009 plans.

“I am accepting the advice of city legal counsel and recommending the settlement of the lawsuit,” she said in the Feb. 29 letter.

Under the terms of the settlement, the city would approve a 21-story building consisting of 228 residential units, 10,075 square feet of restaurant space and four town homes. It will also incorporate a pedestrian plaza to enhance the area along Bissonnet Street.

The Chron story has some reactions to the city’s move.

Matthew Morgan, president of Buckhead Investment Partners, said Friday that settlement discussions with the city have “yielded some encouraging results.” Neither he nor his business partner Kevin Kirton would discuss the matter further.

“Until something final has been filed with the court, I don’t think we can really say much more,” Morgan said.

[…]

Jim Reeder, co-chair of the Stop Ashby High Rise Task Force, said the settlement details do not adequately mitigate the impact of the project if it were to be built.

The corner of Ashby and Bissonnet is already congested, he said, and traffic is likely to further encroach into the neighborhood with hundreds of apartments and a restaurant.

“People are concerned about the quality of life, their property values; they’re concerned about maintaining the character of their neighborhood; and they’re concerned about safety,” said Reeder, a resident of Southampton, an upscale neighborhood near Rice University and the Museum District.

You can see the letter and some more information here. It’s pretty much what we’ve known all along, that there was nothing the city could do to stop this thing. Which, in a different and more suitable location, sounds like it would be a fine project. Hope whoever moves into those residential units is real good at making friends. Swamplot has more.

Council passes high rise ordinance

And with that, Council is done for the year.

After four years of planning and discussion, the Houston City Council on Wednesday approved new restrictions on residential high rises.

The restrictions, which passed after a failed proposal to delay a vote on the ordinance, would require that neighborhood high rises be built at least 30 or 40 feet from surrounding homes, depending on street sizes.

[…]

Council members Oliver Pennington, Brenda Stardig, James Rodriguez, Mike Sullivan and Jolanda Jones voted against the ordinance.

They argued that many residents had not had appropriate feedback in the process of crafting the legislation.

This had been tagged last week. Other agenda items, including parking requirements, Chapter 42 revisions, and auto repair rules, will be put off till next year so they can be taken up by the new Council. I don’t know if that will make any difference, but that was a sentiment echoed by some Council members. As for the high rise ordinance, as we know some neighborhood activists were not satisfied with it, but I have a feeling we have not heard the last of this. When that happens, and when the new Council gets to the Chapter 42 revisions, neoHouston has a simple suggestion for how to proceed.