What the Ashby High-Rise Case Means for the Future of Houston Development

Matthew Festa | @festamj | July 15, 2016

Signs protesting the development were once ubiquitous in the area surrounding the proposed project. Image via Ryan Holeywell.

Signs protesting the development were once ubiquitous in the area surrounding the proposed project. Image via Ryan Holeywell.

Matthew Festa is a professor at the Houston College of Law and a Kinder Scholar at Rice University, specializing in property, land use and local government law. This piece is cross-posted at the Land Use Prof Blog. The views expressed here are those of the author and do not necessarily reflect the views of the Kinder Institute for Urban Research or its staff.

A Texas Court of appeals ruling this month on the controversial “Ashby High-Rise” case provides needed clarity for property law — and for the future of development in Houston and in other American communities.

The ruling — that a project that’s legally permissible can’t be stopped or penalized by neighbors — means that a property owner or developer can rely on the land use rules that are on the books without having to worry about a neighborhood veto of an otherwise legal plan.

The case has gotten some national and plenty of local attention, and it is an important decision for property rights, land use regulation and the rule of law.

The controversy has been raging since 2007, when developers sought approval for a 23-story residential project on a 1.6-acre tract in an affluent neighborhood close to the central city area of Houston. There were many high-profile protests to “Stop [the] Ashby High-Rise”; failed attempts at changing the law to stop it; and a lawsuit against the City of Houston. Ultimately, perhaps in part because of strong Texas property-rights laws, the City of Houston agreed to grant the permit. In 2013, the neighbors sued, claiming that the project would be a nuisance (I testified as an expert witness for the developers at trial).

Traditional property law is that an owner of property can use it any way he or she wants. The doctrine of nuisance limits that freedom to prevent an owner from using that property in a way that intentionally or unreasonably injures another. The Ashby neighbors invoked nuisance law to argue that they were unreasonably harmed by a project that was legally permitted but allegedly “out of place” in their neighborhood near downtown Houston.

In a huge win for the developers, the court declared that the neighbors can’t get nuisance damages for a project that hasn’t yet been built — that is, there can’t be a remedy for a merely “prospective” nuisance. It also upheld the trial court’s decision that there is no basis to stop a project that is legally entitled, because that would be and end-run around the planning, zoning and permitting process.

Construction has yet to begin at the site of the contentious development. Image via Ryan Holeywell.

Construction has yet to begin at the site of the contentious development. Image via Ryan Holeywell.

The trial was conducted by excellent lawyers on both sides. The jury found that the project, if it were to be built, would constitute a nuisance — but only to the immediately adjacent neighbors. After further hearings, the court upheld the nuisance verdict but denied the neighbors’ real wish: an injunction to stop the project. Both sides appealed: the developers argued that there can be no damages for a merely “prospective” nuisance; and the neighbors disputed the denial of their more important goal, the injunction.

The appellate court held that the neighbors of the proposed high-rise aren’t entitled to damages for a project that hasn’t yet been built. The law of nuisance is limited to awarding remedies for a harm that has actually been caused. In holding that there can be no right to damages for a merely prospective nuisance, the court of appeals correctly interpreted the law. This will provide needed clarity for property law after a case that has received national attention.

Some might be tempted to blame the drawn-out controversy on Houston’s lack of traditional zoning. But the case actually turned on the fact that Houston still does have a lot of land use rules, and the courts held that the developers had followed them.

The whole point of modern land use law is to provide some guidance for these case-by-case disagreements about nuisances. If a property owner wants to build, rebuild or modify his or her built environment, then the land use regulations on the books should be the guide — without having to guess, and then pay off for, the potential objections of neighbors invoking “not in my backyard” (“NIMBY”) rhetoric. In fact, this is a big part of why the planning and zoning movement took off in the Progressive Era of the early 20th Century: to have prospective rules in place, rather than relying on unsatisfying after-the-fact remedies through nuisance law.

Houston is famous (or infamous) as the only large city in America that doesn’t have traditional zoning. We are, in fact, very lucky to be the “Unzoned City.” Leading land use experts from across the political spectrum agree that an over-regulated system chokes off the kind of contemporary development that many people want — mixed-use, walkable, transit-oriented “smart growth” urbanism. In most cities, this type of traditional neighborhood development is illegal. Zoning also constricts and channels suburban development, and forces those who prefer a more suburban lifestyle to commute ever-longer distances to race beyond the sprawl.

If a zoning code is based on a previous generation’s land use ideals — and it almost inevitably will be, because land use rules are “sticky”— then it will thwart the kind of modern development that part of the market desires — meaning that we won’t have as many options for where to live, work and play. In the current market, both millennials and retiring boomers show signs of wanting to live in communities with more density and walkable urbanism. Middle-aged Gen-Xers and others are moving to or remaining in the suburbs. If Houston is truly the “Opportunity City,” then it should continue to provide this wide range of options, and the law shouldn’t constrain either preference. Partly because of Houston’s unique position, this case has been discussed in national property law forums and media outlets, as well as here at the Kinder Institute. This case is a perfect example of the challenges of preserving property rights and community desires in America’s “unzoned city.”

But even our unique “zoning lite” system in Houston still has a lot of land use and development rules — minimum lot sizes, high-density rules, urban/suburban distinctions, historic preservation, parking requirements, and other land use laws that, in any other city, would be part of the zoning code. You could even call our system “de facto zoning.” We should resist the temptation to over-regulate, because this relative freedom is an important part of Houston’s history and gives us the opportunity to try new things in land use and development.

The upshot of the Ashby case is that if an owner follows the rules, then his or her property rights should be protected. If someone wants to use and develop their property, and his plans comply with all of the legal requirements, he shouldn’t be vetoed by neighbors. NIMBY arguments tend to restrict freedom, deny property rights and thwart the development that the market desires, just to try and keep undesirable projects and people out of the community.

The Ashby high-rise saga also reflects a fundamental inequity in the housing market and the political process. If a wealthy neighborhood could pool resources to stop an undesired luxury high-rise, what recourse would other communities have? In any land use regime — typical over-regulation, or Houston’s “zoning lite” — the basic purpose of land use law is to provide the ground rules of the game so that everybody knows how to play and what they can do within their property rights.

The greatest feature of Houston’s land use regulatory system is that it provides some basic rules for development but still allows a wide range of options for property use. This allows the Houston community — meaning property owners, developers, and future residents looking to join us — to respond to changing market demands. Our “zoning lite” approach is one of the key things that makes us unique and positioned to succeed as a leading global city for the future. The Ashby decision gets the law right and maintains this unique balance for the future.

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11 Responses

  1. Jay Blazek Crossley says:

    There was another significant outcome of the original debate. The city had a long process to decide what to do about these kinds of controversies and that ended with the High Density Ordinance, which uses traffic impact studies – which are known to be flawed and overestimate traffic from urban projects – to discourage urban development. While we of course have continued to see the market trying to meet the massive unmet demand for walkable urbanism since passage of this ordinance, it has definitely had a marginal effect on blocking it, contributing to the regional over building of car dependent housing neighborhoods, which has actually caused more traffic region wide.

    http://www.houstontomorrow.org/livability/story/city-of-houston-proposes-high-density-ordinance/

  2. ZAW says:

    It’s easy to fall on the side of the developers in the Ashby High Rise case. After all, the people who were opposed to the project were rich – presumably well connected. But this “if my law book says it’s legal then you can’t stop me” view of development could be very risky.
    .
    Think about another land use case a few years ago: the Sunnyside concrete crushing plant. Concrete crushers are a nuisance: they create dust, noise, and they put heavy trucks on adjacent roads. Officially they are considered temporary (though few concrete crusher operators are willing to give a set period of operation for their equipment in a given location), so permitting them is very easy: all that’s required is a two page document that gets filed with the TCEQ. It’s not clear what, if any, other regulations these operations are subject to – I saw one application and it was glaringly missing any site plan, setbacks, curb cuts, or any of the other things usually reviewed by authorities for development.
    .
    Like with the Ashby High Rise, residents in Sunnyside were able to appeal to then mayor Annise Parker to put a stop to the concrete crusher. And it’s lucky they did. Their children could be breathing dust and getting sick.
    .
    The point is: Just because it’s legal doesn’t mean it’s right. It’s especially important here in Houston, not because we don’t have zoning, but because Texas is so lax on environmental laws and even worse on enforcing them. The people in Sunnyside were lucky to be able to stop the concrete crusher. In your ideal world I’m not sure they could have.

  3. Thomas says:

    The developer’s motive is profit and there is little if any interest in the public good intended. Mr. Crossley sees a “massive unmet demand for walkable urbanism”? What is stopping people from walking now. This is not San Fransico, it is Houston.

  4. Jay Blazek Crossley says:

    Hi Thomas,

    Houston is a highly over-regulated development market where sub-urban car dependent urban form is required by City of Houston law everywhere except within walking distance of a light rail station. To build walkable urban style development everywhere else requires seeking a variance and additional costs. And the traffic impact analysis process noted above also discourages dense development and encourages greater regional traffic.

    TXDOT policies for several decades have subsidized car-dependent, unhealthy lifestyles, perverting the marketplace further away from meeting the demand for walkable urban options, while making the region more expensive to live in.

    People are also stopped from walking by the massive lack of basic safe walking transportation infrastructure.

    Here is an article that explains the extent of the pent up demand for walkable urbanism: http://urbanedge.blogs.rice.edu/2016/04/25/half-of-houstonians-want-to-live-in-walkable-communities/

  5. Thomas says:

    Jay,

    You cover many interesting topics. But staying with walking, what stops people from walking in Houston is the weather, the lack of useful public transit and decentralization. I believe Houston’s problems are best addressed with a practical awareness of our demographics, geography, and history.

    I have lived in Houston all my life and in different parts of the city. I have logged many miles skating and biking. Where do I see people walk? Along the bayou parks, around the colleges and down the tree-lined boulevards.

    If TXDOT started supporting people-powered commuting, would there be a sudden shift in the number of people walking to work? I think not likely.

    Where Houston is becoming denser, are people walking to work and play? In EOD, not so much. Washington Avenue, mostly young people, bar hoping. Rice Village, mostly people traveling by car and then walking between shops and restaurants.

    Why do families move to lower-density neighborhoods like West U, Bellaire and West Memorial? For the schools, security, a yard for the kids and to avoid having Ashby Towers in their backyard. Can TXDOT change that?

    I doubt the majority of the residents of the Ashby Tower will be leaving their cars in the garage. So maybe we should talk about practical solutions for this city, short and long term.

  6. Jay Blazek Crossley says:

    Hi Thomas,

    There are real significant differences in Houston. The average household in Montrose or Gulfton drives about 14,000 miles a year, while the average household along the Grand Parkways drives about 27,000 miles a year. So those subsidized sub-urban dwellers are imposing basically twice the cost on our car transportation system and twice the risk of injury or death to everyone else as their counterparts in more dense walkable areas.

    Adding Ashby high-rise to that neighborhood (especially if they went back to the original mixed use plan) would allow more people to live in a somewhat dense urban neighborhood while also making that neighborhood more dense. In general this would mean less driving for the region (and for the individuals in that neighborhood).

    West U and Bellaire are actually nowhere near like the low density sprawl that is costing our region so much and leading the destruction of our ecosystems and causing traffic. They’re kind of middle ground in terms of density and access. And while you may have a perception about families you know choosing those areas, there are families living in all kinds of different situations all across the Houston region, including many many families that live in dense apartments.

  7. Thomas says:

    Jay…

    I can’t see density is not a cure-all solution for Houston’s problems you list. But let’s look at the facts and not perceptions.

    Please provide your data source on driving, injury, and death. Also a source of data on related to those walking and define a dense urban area.

    Do other high-rise buildings show increased walking? Is walking or riding a bike in a dense neighborhood more beneficial than in a lower density neighborhood?

    Density in West U and Bellaire have increased substantially over the last few years and are cited as a cause of increased flooding due to loss of permiable land. Is that not real destruction?

  8. Jay Blazek Crossley says:

    Here is a data source on the variation of VMT across the Houston region: http://htaindex.cnt.org/map/?mapR=107,-95.46229649999998,29.81763241646481,9,place,9202

    If you would like to look through the various different indicators available on that map, you will find geographic variation in transit use shown. Also you will see that more dense areas have lower automobile ownership, lower VMT, lower carbon emissions per capita, are more affordable, etc. There is a lot of different material and sources to talk about in this conversation we are having, and I am sorry that I don’t know that I will be able to satisfy your desired level of “proof” as we are simply commenting on a blog post. However, I believe the general stories I have been arguing are true and generally supportable by evidence.

    Part of the problem in particular with walking is that our transportation planning systems are not currently set up to collect and incorporate good data on walking or biking. Census data on commuting is pretty much the best we have, but commuting is only about 15 to 20% of the trips that people make.

    People who think density increases flooding are incorrect and not understanding the Houston region’s growth, in my opinion. You can read my take here: http://www.houstonchronicle.com/local/gray-matters/article/Stop-building-neighborhoods-that-cause-other-7377091.php

  9. Thomas says:

    Jay…
    Let’s find some solutions.

    Not many families of 4 in Houston are moving into a highrise. And solutions have to fit Houston and be cost effective. By the way, Houston is #11 in TomTom’s ranking in travel times. I believe Houston is the 4th largest city.

    My suggestions…
    1) No more METRORail. Rail cost twice as much to build and twice as much to operate according to the National Transit Database. It is not working.
    2) Build a decentralized bus system. Houston is decentralized. Use smaller, more frequent very punctual buses on interconnecting routes.
    3) Build extensive, interconnecting bike trails with lighting and security. Terry Hersey Park is a good example. Plans to extend the trail and connect with trails further East have been canceled.
    4) Offer tax incentives for regional centers. CityCentre is a big success as a mixed-use center.

    The answers start getting harder to find from here for me.

    * Support urban schools. The number one reason young families move West is the schools.

    * Stop building highways. The disruption is devastating to the surrounding tax base and neighborhoods when highways are widened.

    * Somehow encourage companies to have lockers and showers for bikers.

    * Somehow force drivers to respect bikers.

    You tell me.

  10. Jay Blazek Crossley says:

    I don’t know if we should keep going around. However, it seems you would really enjoy some of the programming of Houston Tomorrow (I just moved from Houston and left Houston Tomorrow). You can check it out and sign up for the newsletter at houstontomorrow.org. It seems you would be a welcome voice and enjoy the conversations at the various events to discuss these kinds of things.

    1. Not sure what numbers you’re looking at. Houston main street light rail is the model of efficiency other cities look at.

    2. check out #NewBusNetwork?

    3. check out Bayou Greenways?

    4. CityCentre is not a very accessible location, in terms of walking or biking or riding transit to it.

    But i really agree with most of what you’re going for…

    Cheers,
    Jay

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