Ashby ‘in limbo’
Two years after judge’s ruling on proposed high-rise, two sides await court’s decision on their appeals
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.
An attorney for the developers previously said that Buckhead lost its contractor and that construction costs led
to delays.
Development, particularly of multifamily family buildings inside the 610 Loop, boomed in the wake of the Ashby ruling, but depressed oil prices have now led to tightened financing for such projects. Real estate experts say that the market is overbuilt for high-end apartment projects in Houston.
“The delay from litigation may actually have benefited the developers by avoiding an adverse market,” said John Mixon, a retired University of Houston law professor who specializes in property rights. “I doubt that the developers would have chosen this outcome, though.”
‘Even the well-to-do’
But Mixon also said the Ashby fight exemplifies the downside of Houston’s lack of zoning.
“Even the well-to-do can’t prevent unwelcome development from impacting their neighborhood,” he said.
One direct result was a new city ordinance requiring high-rise projects to include a residential buffer between the building and any single-family homes. Part of city code was also adjusted to create additional traffic impact rules for dense projects in smaller neighborhoods, said Josh Sanders, executive director of Houstonians for Responsible Growth, which represents developers and formed as a result of the Ashby case.
He said some developers became more savvy in the wake of Ashby.
“We went through a massive development boom, and projects are rising all over the place,” Sanders said. “Has it had this chilling effect? No, it sure hasn’t.”
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, ar- gued 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.
Rejecting zoning
“Whether Houston will move to some form of zoning by prospective legislation as an alternative to zoning by judicial fiat is unclear,” Viada said this week. “However, what is clear is that zoning by nuisance litigation is highly disruptive to that orderly, fair development of the city, and the courthouse is being used more and more as a means for imposing post-hoc land-use controls, even though the people of Houston have repeatedly rejected zoning.”
Residents’ attorney Jean Frizzell countered that the court was wrong to deny the permanent injunction to stop the tower, after the jury found it would constitute a permanent nuisance. Frizzell said in the appeals documents that the developer is attempting to disprove each of the complaints of the residents, instead of reviewing evidence as a whole.
When the Ashby project was announced in 2007, the neighborhood rallied against it, wielding yellow-and-black signs decrying the “Tower of Traffic.” Residents argued in court that the project would increase traffic, lower property values, damage foundations of nearby homes, cast unwanted shadows and invade the privacy of neighbors.
Loughhead, a social worker who has lived on Wroxton Court for 20 years, says she is realistic that the 21-story tower will likely be built. But she hopes the plaintiffs’ efforts at least might have a positive effect on awareness of the need to protect property rights.
“I still hope for a park back there,” she said, “or at least something just not so overwhelmingly tall.”