How the Jury Tried to Resolve the Upper Kirby Funeral Home Bar Battle

The verdicts handed down this week in the court case connected to a dispute between the owners of 3 bars carved out of the former Settegast Kopf funeral home on Kirby Dr. at Colquitt, their landlord, and residents of the subdivision that surrounds it are a tad complicated. As a result of the jury decisions, neighborhood homeowners are now asking the judge to force 2 of the bars — Roak and Hendricks Pub — to stop selling alcohol. One of the jurors in the case offers Swamplot readers a detailed explanation of the decision:

***

It’s important to understand a couple of things. First, the David Crockett Addition includes 2 commercial blocks facing on Kirby. When John Sharp incorporated this addition in 1949 he laid out restrictions that cover both the residential and the commercial lots – no distinction between the two. The four restrictions in question here are 1) a prohibition against the sale of alcoholic beverages on any lot; 2) a prohibition against operating a trade or activity that a reasonable person would consider noxious or offensive on any lot; 3) a prohibition against any activity on any lot that creates a nuisance or annoyance to other lot owners; and 4) a requirement that lot owners submit plans and specifications for any new construction or changes to existing structures to an architectural control committee for approval.

The property owners have been scrupulous about enforcing these and all other restrictions in the residential section of the addition. However, their enforcement of the requirement for plans and specs on commercial lots has been spotty at best, and they have never attempted to enforce the alcohol sales prohibition restriction. Every lot in Block 1, the block in contention here, has at one time or another, held some sort of TABC license, and at the time the project got underway 2 had (and continue to have today) active licenses — Cafe Express and The Owl. Their justification for inaction is that these places sell a relatively small amount of alcohol and have never caused a problem in the residential portion of the addition.

In May 2011 a group of homeowners filed suit against Thor Equities (the property owner); GWV Kirby LLC (the operator of Roak and Hendricks Pub); GWV Patio LLC (the operator of OTC) and against 4 individuals, the original principals for GWV Kirby LLC and GWV Patio LLC. The suit was filed before any of the establishments opened for business. The four individuals countersued for race discrimination, alleging they were being treated differently because of their ethnic backgrounds (Middle Eastern/Asian).

Over the course of the trial a few things became clear — the clubs, and especially Roak, had created a nuisance and annoyance based on the volume of patrons and cars flooding the neighborhood. The jury also felt there was really no evidence of racial discrimination against the four individuals. The questions around noxious/offensive trade and abandonment of the deed restrictions were much more difficult to decide. In the end we decided that the homeowners had not abandoned the restrictions, but that the restriction against alcohol sales was unenforceable due to the changed conditions in the area — remember, this is right in Upper Kirby. We finally agreed that Roak could be considered to be conducting noxious trade or activity (based on its high volume of alcohol sales), but not OTC. We were not able to separate Hendricks from Roak as they are owned by the same LLC.

Our intent was not to shut down any or all of these clubs, and we hope our decisions will push the parties to the bargaining table to find a way to allow the businesses to continue to operate, but in a manner that is not offensive or a nuisance to the residential area. We also hope that the property owners in both commercial blocks will be welcomed into the homeowners association and will take an active part in that organization going forward.

So, what comes next?

The judge will make some decisions about [attorneys] fees. Several [jurors] spoke with [one of the plaintiffs' attorneys] after the trial and he indicated there would be an attempt to work out some mutually acceptable compromise. If they are unable to do so I think the verdicts give the homeowners the ammunition they need to try to close the place. If they are successful Thor will probably have a tough battle trying to get another bar or club in there.

Photo of Roak, 3320 Kirby Dr.: Candace Garcia

9 Comment

  • Back to Lizards….

  • Great info and very interesting. Good post.

  • the commercial lots are commonly included with the HOA of the residential community they were developed with………I am sick and tired of this arguement of no rules free to do whatever idea of business and development in this town……if we are to remain a civil society that lives in peace then we follow the rules and do not try to jump in to a loophole we created for ourselves or just plain ignore and pretend the HOA is no longer active………HOA rules are deed restrictions people so even if the board is no longer active the rules attacted to the land still apply………any title company will tell you that and if you have ever bought an older property good title company will have all the restrictions listed which include height restrictions (Ashby NoRise) plus most restrict the max amount of housing the land can be used for as a way to prevent the overcrowding of the schools zoned for the area…….Houston has numerous old clubs downtown that are much better and nicer inside, but let’s piss on our neighbors on Kirby so we can prove a point that makes no sense…….I hope the land is leveled and the development that was going their comes back to life since it was a total rebuild of that ulgy corner……….also 2727 is still almost empty so how can Ashby ever get a bank to fund construction? just saying, some things are beyond stupid bankers……..

  • another empty glass box, The Royalton, but let’s build Ashby or any other highrise condo……..so dumb……..how about we lend to businesses who need to expand or commercial firms who need to rebuild old shopping centers that are way beyond their useful years……..also stop lending to the strip center builders who put up these cheap mini strips of horrible shops with no major anchors……also I am damn tired of these gamerooms being allowed to be open…….WHERE IS HPD, WTF is what people say when they see that crap and the rest of start to think why do we bother building nice things when others just want to make a quick cheap buck while driving a neighborhood in to the ground……

  • @Charles: feel better now?
    .
    This was a very informative post. I have to agree with the decision regarding the liquor licenses. The residents can’t be choosy. Either you enforce the rule of no alcohol sales from the beginning, or you don’t and you give up the right to do so in the future. The quantity being sold has nothing to do with it.
    .
    I am glad that they were able to demonstrate Roak as conducting “noxious trade.” There’s at least some hope of a change in the situation. I wish we could do the same with some of the bars on Washington Ave.

  • Charles, I understand that this is the Internet and you don’t need to write like you’re in freshman composition, but punctuation other than overgrown ellipses really helps to make your rants legible.

  • Isn’t that place haunted?

    “CHEERS” it ain’t.

  • I am with the bars on this one. Take a look at google maps, Richmond and Kirby as well as all Kirby frontage North to Westheimer is basically commercial space. This sectional neighborhood inside the loop is completely surrounded by office and commercial that has probably witnessed different kinds of growth all around it. I have been to OTC, ROAK, The Owl, Cafe Express, I did not see any overly noxious activity, other than people enjoying some nightlife. I am pretty sure there is no street parking allowed on Lake St. anyway.