Vet sues city over 1922 restriction
Midtown Veterinary Hospital owner points to other businesses along West Alabama
The Midtown Veterinary Hospital was outgrowing its space on West Alabama Street, so owner Richard Clive bought a new property a couple of blocks away in 2018 to expand.
He hired a contractor and demolished part of the interior first floor to transform the space into a veterinary clinic. The contractor was about to pick up permits from the city in 2019 when Clive received a cease-and-desist letter from the city telling him he could not use the property for his practice.
The city attorney’s office cited a 1922 deed restriction that says most properties on the south side of the 1600 block of West Alabama cannot host a business.
This property, however, had been used commercially for decades and previously belonged to Arden’s Framing Shop. Other properties on the block — subject to the same deed restrictions — house a law firm, a salon and a watercolor art gallery. An eightstory apartment building is two doors away on West Alabama, the mostly commercial corridor known for a popular ice house and its string of restaurants, grocery stores and other businesses.
Clive’s current location has the same restriction, he said, and it never presented a problem.
“We got the letter and I thought there just has to be a way around this. It was a business already and there are businesses all around it,” he said.
The veterinarian sued the city last month, seeking to force officials to grant his business permit and allow him to open the new location.
Clive’s plans ran into the often uneven enforcement of Houston deed restrictions, the hyper-lo
cal rules that govern land use absent zoning in Houston. The city can enforce certain restrictions and frequently does when someone complains. Often, though, no one objects or the city does not intervene, allowing property owners to carry on with their plans uninterrupted. The result can be an arbitrary process that Clive’s attorneys argue lacks transparency about who gets waived and who gets blocked.
They say the city attorney’s office told them someone complained about Clive’s plans, but officials could not tell them who or explain why Clive cannot operate a business there while others can.
Clive’s lawsuit, filed by attorney Carl Allred, claims the vet “has lost hundreds of thousands of dollars in forfeited revenues, payments for construction and architectural design, legal fees, and other monetary and other damages” because he has not been able to operate at the location.
Sara Bronin, Clive’s niece and a professor of property law at the University of Connecticut who has helped with the case, said it amounts to “property law 101.” The city has abandoned enforcement of the deed restrictions by allowing other businesses to open nearby, she argued, and West Alabama has materially changed into a commercial area from the residential neighborhood it might have been 99 years ago, when the restriction first was implemented.
“The crazy thing is that they don't have to try to enforce this on the property owner,” said Bronin, a Houston native. “The idea that that property will now convert to a single family residence is completely ludicrous.”
In a statement, the city legal department told the Chronicle that the deed restriction is “valid and enforceable” despite its dated history. The next section of the deed says only Caucasians can own the property, a common rule in earlier-era deeds that no longer is enforceable legally.
The businesses operating on that stretch of West Alabama despite the deed restriction do “not rise to the level of waiver or abandonment according to case law,” according to the city. Such a waiver would be “based on a numerical percentage of properties that violate the same deed restriction” in the subdivision, which is largely residential behind West Alabama.
The city also argues that Clive’s veterinary clinic marks a “major change in the commercial impact on the subdivision, from its prior use as an art gallery.”
The city said a residential neighborhood behind West Alabama “wants to preserve its residential nature,” though it did not identify a formal complainant.
The Lancaster Place Civic Association, which includes the affected block of West Alabama Street, did not respond to requests for comment.
Bronin said the city’s argument that only some of the properties on that block of West Alabama are commercial is “absurd on its face,” citing a property that has parking space to fit 14 cars, along with a day spa, which Bronin said
“from a land use perspective is very much like a veterinary clinic.”
“How did those uses get permitted, and why is Midtown Vet — an excellent neighbor by all accounts — being treated differently?” Bronin said. She argued the city can apply the waiver to properties on West Alabama without affecting residents behind it.
Jake Mase, president of the adjacent Mandell Place Civic Association, which includes the opposite side of West Alabama, said he was surprised to see the restriction enforced on Clive’s property.
“This is the first I’ve heard of someone blowing up at a building that is the existing structure, that doesn’t sound like it would be too detrimental,” Mase said, though he noted Lancaster Place otherwise remains significantly residential. He said a 1988 judicial ruling ordered Mandell Place to abandon similar deed restrictions on Alabama and Westheimer, now almost entirely commercial corridors.
Clive said he is doing his best to remain patient more than two years after he bought the property. He said the clinic has been able to get by in its cramped space in the meantime.
“We make do, but we need room to grow, we need to offer better parking and a better experience for our clients,” Clive said. “To me, it seems like it would be pretty simple: It was a business there for 20 years.”
The case is in the 269th District Court, and a hearing has not been scheduled.