After more than 6 hours of deliberation over 2 days, the jury in the Ashby Highrise trial came back with a verdict this afternoon, awarding damage claims to a subset of the neighbors who filed suit against the developers of the highrise apartment tower planned for 1717 Bissonnet, claiming that the development would cause harm to their property. Jurors who spoke afterward to Chronicle reporter Erin Mulvaney said they believed the development was “out of place” for the Southampton neighborhood it abuts. Expert witnesses for the plaintiffs in the month-long trial presented evidence that the 21-story tower would cause lower property values, structural problems, and increased traffic for its immediate neighbors. Total bill, ordered for 20 of the 30 neighborhood households that entered into the lawsuit: $1,661,993.62. Next up: a hearing before Judge Randy Wilson over whether the project should be allowed to go forward.
- Jury sides with residents in Ashby case [Prime Property]
- Ashby Highrise coverage [Swamplot]
Rendering: Buckhead Investment Partners
It’s Judge Randy Wilson.
Fixed now. Thanks!
This judgement will be appealed. The developers followed all the rules and building codes. Saying it was “the wrong project on the wrong site” is not a legal argument, and has never applied anywhere else in Houston, that’s for sure. How can there be damages for something that isn’t built? Wonder if the developers can afford to wait out a protracted appeal, however.
At the risk of belaboring the obvious, this case was bound for the appellate courts from the moment it was filed, regardless of whose ox got gored…more likely, both sides would appeal.
Appeal or not, this sets a bad precedent for development inside the loop. Get ready for lawsuits galore. Don’t like the scale of a development nearby? SUE. Don’t want a gas station on the corner? SUE. Don’t like the architecture of the house next to you? SUE. Where is there anything to limit what one could consider “damages”….
I don’t agree or like every development going on in this city, but I also don’t think I have the right to tell another land owner what’s appropriate for his land that he paid for.
I thought the damages are contingent on the project being built. If the developer decides to not build it then no damages will accrue. If the developer opts to not pursue the project then he should put up some dilapidated housing for $120/month ALL BILLS PAID. But $1.7 mil to go forward is cheap and so he’ll pay the damages and move forward with the project assuming the judge allows it. I can’t imagine under what authority the judge could stop the project. Anyway, this is headed to the COA which I think will reverse this apparent miscarriage of justice. The neighborhood had other options such as deed restrictions and for whatever reason opted to not put those in place long ago at the time of subdividing the property or sometime after pursuant to a vote. That was their solution to this issue and this result will get bounced above.
Of course it will be laughed out of appellate court, but annoyance to the developer non the less. I say twice as high tower is an appropriate response to the nimbys and a 24 hour Mariachi band as a bonus.
Love the aqua!
I’m puzzled. When this subject comes up so many on SP LIKE the idea of this project. And are apparently anti-zoning. Just sayin’ I’m puzzled.
My hood keeps deed restrictions enforced to TRY to prevent this stuff. People who are lucky enough to have inner-loop intact neighborhoods like to keep them. I do.
I’m intrigued with the verdict. If a barking dog can be a “nuisance” a 21 story high rise certainly can be too!
Wow, so Houston DOES have zoning, if you live in Southampton.
Unbelievable.
LOL. The hapless developer who can’t get anything right. Next they will find out the land was once an ancient burial ground.
i’m with the developers on ashby. unbelievable verdict. looking forward to an appeal
dream
This is total BS! Why are dumb people being rewarded money? I am going to start buying houses that back up to commercial property then start the lawsuits!!!!
Good.
This lawsuit is The Cost of Doing Bidness in a city without zoning. If developer types want to avoid these costly legal wrangles, they should try to reach consensus with their future neighbors first, rather than cramming buildings that differ greatly from a neighborhood’s character down said neighborhood’s throat. Yes, developers have property rights. But guess what? Other property owners have rights, too, and if they’re wealthy enough (as they are in Southhampton) they can afford to sue and tie up projects. The message for savvy developers lies between the lines of the Ashby Highrise lawsuit: if you want to densify a wealthy inner-loop neighborhood, work with the ‘hood and take the litigation fees you save as profit.
This is agonizing, I live in this neighborhood and just want this to end, and their is no way the appeals court is going to let this stand.
I’m dumbfounded. They are assessing damages based on the evaluation of competing forecasts of damage that has not even occurred yet and based upon property rights that are neither codified by law or established by precedent. How did this happen?
OJ jury part deux–what a bunch of fools –it will be reversed the minute it hits the Appelate –it’s embarrassing for Houston to have juries this damn dumb
Kevin Kirton and Matthew Morgan decided to play “nicey-nicey” in the beginning and should have taken the hint when they had to file suit against the city. As soon as they settled it and the city agreed to issue the permits, the homeowners publicly stated they would continue to harass them and everyone else involved with the project which was the point Kevin Kirton and Matthew Morgan should have file suit against homeowners. for harassment. Not hard to prove given the fact the homeowners put the threat in writing. That probably would have taken care of this lawsuit. I wonder if the jury realized the homeowners had threatened to harass the developers and realized the lawsuit was just that. Harassment. Nice guys finish last. Especially when the nice guys play “nicey-nicey” with people who aren’t nice guys.
If the judge decides there’s some political advantage in granting a permanent injunction. there will be a flood of lawsuits beginning with one against Hines over his planned project on San Felipe. And we will have zoning by court order which is contrary to the city charter. Amazing the mess a bunch of pretentious spoiled brats can make isn’t it?
What precedent would this have for this development since they are forecasting damages? What about when the actually damages are found after the construction? Is the defendant no longer liable for damages since they paid them up front? If so, the developer could get out ‘cheap’.
is this really a victory for the plaintiffs? it certainly doesn’t seem like it is punitive enough to stop the project moving forward: compared to the construction of a large highrise this seems like it fits squarely within a “cost overrun” budget. i imagine the only reason they will appeal rather than just pay it and move on is the precedent it sets for future projects.
Could this set a new type of rampant lawsuit in Houston (ie Jim Adler style) where sleazy lawyers just sue everything being built in hopes of a jury award or a settlement?
It is actually pretty easy to find/pay an expert witness to make claims about “soft” issues like property value, traffic, crime rate, quality of life etc.
Just imagine…. don’t like the new bar opening on Washington… sue, don’t like the new modern house being built in Montrose… sue, don’t want a halfway house in the Heights…… sue, don’t like the new Walmart….. sue.
“Jim Adler got me $$$$ for my house! Thanks Jim!…… Have you been wronged by a new development, has your quality of life been damaged? Call Jim Adlar the Texas Hammer today for a free consultation!” Ha…….
Not an attorney, but it looks to me the the damages assessed are to resolve an illegal “taking” of the neighbor’s property rights. Structural problems due to settlement of land, and reduced property values are a clear taking in economic terms. Property rights work both ways. You can do what you want with your property, but you cannot use it to injure your neighbors. No new legal ground here, except that most property owners don’t have the resources to take others to court over illegal takings.
ShadyHeightster, you must have stayed at a Holiday Inn Express because you are 100% correct on the law. The law on trespass and nuisance is this: you break it, you buy it. It’s really that simple. So greedy vultures, build away, and then answer in damages for the harm caused to the surrounding property owners.
@Colleen
“I’m puzzled. When this subject comes up so many on SP LIKE the idea of this project. And are apparently anti-zoning. Just sayin’ I’m puzzled.”
I can’t speak for others here but I’m not in favor of of this project per se, I’m against using courts to restrict property rights on an ad hoc basis, based on the wealth and affluence of neighbors. Something like this could set a terrible precedent that could have so many unintended consequences that could virtually halt or make much more expensive all new development.
That being said I can only comment to this case on what meager things I have read. There may have been more presented int the case that hasn’t made the media.
The jury answers specific questions, “who wins” is not one of them. In this case, they were asked if the project would constitute a nuisance, and were given a definition for what a nuisance is. I’m not going to get into the weeds of evaluating whether the jury questions were correctly drafted (and if not, whether every hoop was properly jumped through on preserving the objection), but I suspect that will be a point on appeal. There will be others, too, I’m sure; but I didn’t attend the trial and thus have no way of guessing what they may be.
To the person that wrote the following “Get ready for lawsuits galore. Don’t like the scale of a development nearby? SUE. Don’t want a gas station on the corner? SUE. Don’t like the architecture of the house next to you? SUE. Where is there anything to limit what one could consider “damagesâ€â€¦.”
Wow. What a stretch! To compare a gas station or the architecture of a neighbor’s home to a MEGA-highrise right in the heart of a community is so far fetched, you must have your head up your a$$. The people that live close to this planned development have put their money, time, and effort into developing the area over decades into the community that it is today. It is for that very reason, that the developers want to build this high-rise in the area. For the developers, this would be a profit windfall and the jury recognized that. They could cheaply build a giant piece of crap next to the people living there, lower their property values, increase their traffic, increase the potential for crime, and turn everything the neighbors have worked hard for into junk. Over the short run, the investment company could make enough to pay the taxes on the property, gain some profit, and make money on the businesses they plan on leasing out at the bottom. In the long run, the renters have no vested interest in the area and if the Houston economy were to tank in 10-15 years (which also happened in the 80s), the rental prices would come down and the property values nearby for the homes of those that have lived there generations would plummet. We’ve seen this show play out before in Fondren Southwest. What used to be multi-million dollar homes are now were less than half of what the owners paid there originally. This is nothing new. The investment companies don’t give a damn about the people living in the area and the jerks that finance this monstrosity don’t live in the neighborhood. In fact, they likely don’t even live in this state. They only care about the bottom line. Those ARE real damages. So, you don’t think there should be restrictions? I guess there should be no issues with building a strip club right next door to YOUR house. How about a landfill? How about a crack house? Its jerks like you that talk all about how property owners should be able to do whatever the hell they want on their property from whats below it to what is above it but your freedom as a property owner to do as you wish without consideration for anyone else begins where my feedom as your neighbor ends. Then you cry that Houston has no zoning. Houston has no zoning! Yes, and where did you think zoming laws came from? They came from fights like this where property owners historically in other cities were getting screwed over. The whole reason Houston never had zoning wasn’t for garbage like this but to entice investment and business into Houston in order to grow Houston. I think we are passed that point of needing to entice business and investment here. We are now the 4th biggest city in the U.S. so don’t give me this zoming argument BS. You are some piece of work.
This building is hardly “garbage” and if you think so you need to get out more–and the zoning laws in Houston are lacks to increase development and this building is certainly a developement. The way the residents have bullied this developer make me ashamed to live in Southampton, they act completely entitled and their tactics are bullying in nature. The developer should add 30 stories to this building after he wins on appeal.
I can understand home owners suing for real damages and winning but here they are suing for theoretical damages before they happen. In the real world there will be no structural damages to their homes. If the builders screwed up in some way and damaged someone’s home then you sue. How can someone sue for something that might happen and win? As far as lowering property values, it won’t lower them but even if it did, can we get money from anyone who lowers our property values now? Maybe if my neighbor puts up burglar bars I can sue him for lowering my property value.
Wow, I think Stephen’s kids and wife better go out of town for a few days.
Stephen,
Your comment is perhaps one of the most inane things I have read. The Southampton homeowners should have done their due diligence when they bought their homes and realized that the Ashby site was largely unregulated. Shame on them for not doing so. That is the risk you run when you buy a house next to commercial or unregulated property. Business and society in general work best when everyone knows the rules and they are applied evenly and fairly. Just because the homeowners had the time, gall, money and ability to select a jury largely ignorant of the law and its application does not make them right. This case should be (and I understand will be) appealed and hopefully overturned.
It’s not my property, but if it were, I would consider cutting my losses and build some 3-story low income halfway house type housing there. How you like them apples, Stephen? Guess you couldn’t complain since it would be in the scale of the neighborhood.
Stephen has inspired me to go to a bank and ask for a loan to build a crack house in this neighborhood.
Think of the profits I could be realizing.
Using the legal system to obtain a ruling in their favor through a jury of their peers is not “bullying”.
Aw, poor Mr. Developer! My heart breaks evertyime I see a developer have to do sometihing or talk to a neighborhood. If you are truly for individual property rights then you can’t pick sides cause guess what, the neighbors have rights too! Amazing revelation isn’t it? So sad to see a shiny new highrise get challenged! Thats what this issue is all about afterall. Let the neighbors, developer, and court deal with the issue. In a free society, which you libertarin types aspire to desire, everyone starts with the same rights. When you believe that so totally that you don’t know how to talk and compromise, then parties end up in court and others make the decision for you that you are incapable of making any other way. We should have a Swampies award for Whiners of the Year on Swamplot, or for crapy anaconym of the year. I would have voted for the term NIMBY….please lets retire that tired, overused, and offensive term. Everyone is a NIMBY as some point in their life.
Y’all are a bunch of whiny asses. Nothing will ever change in this city if those who have the economic means to fight don’t exercise their right to contest. If this had been Sunnyside and the neighborhood rose up to fight off
some chicken rendering plant, everyone would be hooting and hollering that the little ones stood up to the Man. But, because this neighborhood is affluent and can actually make their voices heard, all of you 30k millionaires are having a class warfare hissy fit. For the 4th largest city in the country this place has been run like Hooterville for decades and maybe just maybe all of these folks that are moving here in droves have better ideas than the many of the doofuses who have historically run things are here. A quick scan of HCAD shows that the newest owner who backs up to this site bought in 2004. Some bought in 1988 and many bought 12 years ago. What crystal ball should they have had to foresee this coming? I’ll bet hardly anyone who has been here 25 years could foresee this kind of re-development.
So Shannon, spare telling us one more time how you live in Southampton. Until someone wants to put an Ashby looming directly over your house, it is irrelevant. And we all know Matt Mystery just cannot let it go with his righteous indignation for the neighborhood. I do not now nor have I ever lived in Southampton/Boulevard Oaks but am happy they can stand up and fight. They may not be successful but perhaps it can be a catalyst of change.
Hmmm…. seems I said “COULD this set a new type of rampant lawsuit in Houston…”
I asked a question hoping to spur discussion on whether sleazy lawyers might abuse this verdict to create a Jim Adler type industry where the merit of the lawsuit doesn’t matter, only the monetary outcome. Did I make a joke in my post? Yes, but it was to point out that personal injury type lawyers don’t actually care about the victims, only about making money…. which I am hoping doesn’t happen due to the precedence that may/or maynot be perceived by lawyers that are following this case.
I never even commented on the grounds OR the outcome of this specific case. I did mentioned expert witnesses because I know a lot of lawyers that have told me expert witness can be found if you are willing to pay them (again, not commenting on the expert witnesses in this specific case).
So not really sure why you felt the need to personally attack me on this case, this highrise, or zoning in general since I never even mentioned them . Guess that is Swamplot these days. Oh yeah, since you asking very specific questions about my house I guess I will answer you….. I had specific criteria I tried to meet when I bought my house knowing that zoning is what it is in Houston. Made sure it was at least 3 blocks from any major street to avoid traffic and spillover parking from possible future commercial/residential development, within 1 block from a city park (less likelyhood a park will turn into something I don’t like), within a block or two from a school (the city does restrict what can be built next to a school, so by default I am protecting myself from strip clubs and bars… and I guess landfills), I bought on a block that was a mix of new builds and old houses to minimize the risk of the whole block being torn down to build something new (which is a risk if you buy on a street of all old houses). I didn’t plan for crack houses being built because I don’t think those can be permitted with the city. I plan on staying in my house less then 10 years, so 20 years from now where I bought may be different. Was I able to meet all my criteria? No, but I came close enough that I was ok with it. Do I still run a risk of something being built, you bet, but I hopefully stacked the odds in my favor. Funny thing about this case, I am in the middle. I think both sides have very valid points, but like most people on Swamplot I am sick of it being dragged on and I am sick of the extreme views on BOTH sides.
This will be overturned, damages are not applicable until there is actual damage and of course there is none since the building hasn’t been built. The developers have every right to develop their land as they see fit as long as it meets all permitting requirements., and this project did. Look our population is soaring folks, the city will HAVE to become more dense, there will be more of these projects in the loop and one day we’ll see these high rise projects in other places outside of the loop. Homeowners did not win, after this is reversed on appeal these tactics will no longer work to stall future projects and development will actually increase. This is a win for developers who will have legal footing in future litigation. And to the residents of Southhampton, eventually the money runs out and the court process takes its toll and you will find out what less wealthy fellow citizens aleady realize, YOU CAN’T STOP PROGRESS. peace
40% of plaintiffs receiving damages live in condos built in the mid-90s that were way back when once out of place for the neighborhood.
Oops, Sorry Stephen, thought you were talking about my post. Just realized you are saying “NJR” is a “jerk”, has his “head up your a$$” . HAHAHA….. though my original questions and follow up comments are still valid.
So if I am a custom home builder improving a neighborhood with attractive new construction may I sue the neighbors for a portion of their increased property value?
12-0 in short order is quite telling on a case like this one. And, what’s with 75% of commenters commenting without having read the article? Swamplot is slowly morphing into troll town.
Brad,
Wow. You just blew this thing wide open.
Not sure why the Bolsheviks around here think that living in an expensive house disqualifies someone from trying to stop a project that adversely affects them, but it’s pretty naïve to equate the absence of zoning with the absence of land use controls. It simply means that politics and money play an even greater role in the resolution of land use conflicts. That’s historically meant that developers had the upper hand in Houston, but live by the sword, die by the sword.
“And we all know Matt Mystery just cannot let it go with his righteous indignation for the neighborhood. ”
I don’t have a problem with the neighborhood, just some of the people who live there. Which from time to time according to comments here some of the other people who live in Southampton also have a problem with. If anything those people, the “Stop Ashby” cabal, will be the reason why property values plummet. I believe the law applies to all. Some believe it doesn’t. What this comes down to. From day one these people have as much as stated as such. Shame the jury didn’t hear them. As for those who agree with me, well, most of the comments on Swamplot through all of this would indicate a majority of people do.
“…custom home builder improving a neighborhood with attractive new construction…” Ha, ha, ha, that’s rich. Pull the other one!
@ JT: JT wrote, “A quick scan of HCAD shows that the newest owner who backs up to this site bought in 2004. Some bought in 1988 and many bought 12 years ago. What crystal ball should they have had to foresee this coming? I’ll bet hardly anyone who has been here 25 years could foresee this kind of re-development.”
What you do is check your property records and HOA etc. to see if the land use is restricted in any way. In Houston, because there is no zoning, we typically rely upon deed restrictions that may limit the use of land. For example, if you were to purchase in Garden Oaks you would be protected from these types of structures within the formal neighborhood because they are prohibited by the deed restrictions. So, no, you wouldn’t need a crystal ball, you would need a little bit of real estate knowledge to understand how you might protect yourself from such a new development. Go to Garden Oaks and alleviate having to worry about a massive new structure being built next door… unless, of course, you are on the edge of the neighborhood, in which case a structure could be built next door to you just outside the neighborhood.
I don’t care which side “wins”, but GEEZ Stephen, to think that this high rise with the rents they were going to charge would increase crime is a bit on the nonsensical side!
In the absence of any viable alternatives, we have two respective parties (developers vs homeowners) fighting for their best interest. In a town where developers have historically had the upper hand, I just don’t understand the vitrol for the neighborhood residents trying to protect their interests. They aren’t breaking any laws that I’m aware of.
Their exhausting every legal measure to fight for their cause. Just like the developers will probably do over the next few months. If I had a personal property rights issue I deemed worth fighting for (and the legal and financial means to fight for it), I’d be doing the same things. So would anyone else on this website.
BBB,
No, no, no. You are talking mainly to no-zoning ideologues who would never dare sabotage their acclaimed philosophy with a complaint, let alone legal action. They would gladly accept their fate knowing that they made an informed choice (or failed to do so at all) when they bought their home.
All legal issues aside, it is interesting that when you grab 12 people off the street and give them the full story on the impact a development will have on a residential neighborhood, you get a result that is in favor of the neighborhood. Once you get out of the echo chambers of internet message boards and online comments, you find that most people do not like the idea that someone can build a 22 story highrise in your back yard.
Creole Crusher, silly you! You forgot that there are at least three more steps in the home “selection process”. Dontcha’ know you also have to check to make sure that every single house within a one mile radius of yours did not EXEMPT itself from the Deed Restrictions AND that said Deed Restrictions have not expired and make sure that you and/or the HOA have the guts and cash to enforce said Deed Restrictions down at the courthourse. It’s such a simple process, that’s why you probably forgot all about it. Just call up Stewart Title and run title on 20 or more houses and then win the lottery to finance your future TRO/Dec Action. Easy as pie!
Strange to me that people are giving their opinions on a case for which they were not present to hear the FACTS. This dedicated jury listened to the facts for 4 weeks. Understanding the historical foundation of “nuisance” in the law would help some of you who are making uninformed comments.
Something can be legal and yes, even permitted by the City, and still be a nuisance.
@Mel: Mel said, “Dontcha’ know you also have to check to make sure that every single house within a one mile radius of yours did not EXEMPT itself from the Deed Restrictions AND that said Deed Restrictions have not expired and make sure that you and/or the HOA have the guts and cash to enforce said Deed Restrictions down at the courthourse.”
A few problems here. People can not “exempt” themselves from deed restrictions. Deed restrictions run with the land and BIND ALL SUBSEQUENT OWNERS absent special circumstances. Two, deed restrictions do not ordinarily “expire” — where did you get that from? Third, you don’t need to have money, guts, and an HOA to enforce deed restrictions. The city will do it for you! See, a little knowledge would have helped these folks avoid this problem and you from posting something silly.
Here, go read this for more information regarding city enforcement of deed restrictions: http://www.houstontx.gov/legal/deed.html
I wonder what precedents this verdict was based on? The Inwood Tower smack dab in the middle of River Oaks hasn’t hurt property values for the now multi-million dollar homes all around it, 40 years on. The two enormous Four Leaf Towers which were built 30 plus years ago right next to homes in Tanglewood didn’t destroy values. All of those modest ranch homes have been replaced with multi-million dollar ones over the years. The list goes on, the Houstonian, the Tealwood, 5000 Montrose, the Huntingdon, and more were ALL built right next door to single family homes in very nice neighborhoods. None of those neighborhoods have been destroyed, none of those homes are “worthless”. This verdict is a joke, based on the hysteria of a group of people who are so privileged that they cannot fathom not getting their way, regardless of the law. I know several of the people who brought this suit and I think less of them for supporting this travesty. Sore losers, spoiled brats, entitled hypocrites are the nicer things I can say about them at this point.
Creole crusher- I see. It’s not that you forgot those steps, you just didn’t know about them. Good luck with those deed restrictions, and even better luck getting Feldman to enforce them for you. :)
@ mel – they’re cute when they’re young, aren’t they…
Creole crusher: Yes, some neighborhood deed restrictions that were written in the 20s-30s did have a finite life span.
I would think that the homes/lots that border this previous apartment complex (ashby site) sold at a discount than those home/lots that were a few streets over or a block down. This is the free market and location is everything in real estate. I think these homeowners got a lower initial price because of their exact location and knew the risk they were taking. These are not dumb people. I wouldn’t of bought a house on Wroxton or Ashby, I would buy on Alabans or Milford to guarantee that my home is not bordered by a multifamily or commercial property. Some lots are just better and more desirable. I don’t’ see how these homeowners did not realize they bought a house next to an apartment complex that was unrestricted and were unaware that their deed restrictions had expired or were unenforceable. What about all the little businesses in houses up and down bissonnet from Mandel down to Greenbriar? Do those training studios, counselors, antique shops, and massage studios have the right to operate within this neighborhood? Why aren’t they going after them, “to keep the integrity of their neighborhood that they’ve worked so hard for.” “To maintain their quality of life” I must agree that it would totally suck if a high-rise was built right next door to your house but they took that risk when they bought the cheaper house in their neighborhood.
I support the developers unrestricted right to build as allowed by the approved building codes of the City of Houston.
As an investor: I own rental property in this area and I’m in the market for more rental units because demand is so high in the area. However, this verdict gives me reservations and I’m sure it will lower my bankers confidence to loan me money when I show up with a contract on an old duplex or small apartment complex close to Rice University.
Dream
JT great point. I too am a non-crystal-ball-peering property owner, purchased close to Rice Village in 2000. Little did I know a pincer movement from both University Blvd & Holcombe are slow-marching up Morningside gobbling up blocks and replacing hovels with cheek-by-jowl stucco palaces. Could I have predicted this? Heck no, Houston was a backwater 10+ years ago (relatively) and no one back then predicted what we are seeing now in Real Estate. So again, to blame Southamptonites for “selecting” property purposefully at-risk is makes as much sense as laying blame on welfare queens who get pregnant just for the benefits. Perhaps, that is where some are getting their intel. It’s just wealth distribution aimed several stories up their *ss.
Is this like a PreCrime?
@Mel: Mel wrote, “Creole crusher- I see. It’s not that you forgot those steps, you just didn’t know about them. Good luck with those deed restrictions, and even better luck getting Feldman to enforce them for you. :)”
Thank you! Feldman has already been enforcing them in our area!!! It’s very simple actually. Also, it’s not that those steps were forgotten… it’s that they’re not needed if you do it right. But continue going about your business however you see fit. And please share with us how landowners can EXEMPT themselves from deed restrictions. This ought to be good.
@PYEWACKET2, “Creole crusher: Yes, some neighborhood deed restrictions that were written in the 20s-30s did have a finite life span.”
I see the confusion. Yes, deed restrictions may be written to expire. They do not, however, expire on their own. You could make some latches arguments etc., but that’s technically different than expiration.
Here’s the bottom line: restrictions on the USE of land are simple to ensure are in force and to enforce them. What Mel doesn’t realize is no, you don’t need to do a million things to figure out if (a) you have a deed restriction that restricts the USE of land, and (b) whether such restriction is not in effect due to, for example, a expiration date that would be on the deed restrictions and therefore readily observable or latches. To figure out the latter just open your eyes and see what the neighboring restricted land is being used for. Good luck building a 21-story residential structure on land whose use is restricted to single family homes and where only single family homes exist. And if you bought land that is restricted but with structures in plain sight violating those restrictions then tsk tsk.
So now bungalow owners in the Heights will be able to sue for the nuisance caused by McMansions?
And suburban single family owners will be able to sue for the nuisance caused by apartments proposed for their school zone?
You see how this is going to work.
@ crusher – All deed restriction schemes are not created equal.
As Mel points out, older deed restrictions included provisions for automatic expiration, or at best some sort of procedure where the landowners would have to sign and record a renewal document. So yes, in many older neighborhoods, they lapsed – hence the bungalows on Whatever Street containing businesses, and small apartment complexes plopped in the middle of an older neighborhood.
The statutes dealing with how to put deed restrictions in place with less than 100% buy in didn’t get enacted until the mid to late 80s. Those statutes include a method where someone in a neighborhood trying to enact deed restrictions can opt out.
My personal experience in getting the city to enforce deed restrictions from when I was the officer in charge of that for my neighborhood (granted, pre Feldman) was that there are only certain restrictions the city will enforce, and even then they often didn’t respond one way or the other for ages. So we would do it on our own if need be, which does get expensive.
@mollusk: “Mel points out, older deed restrictions included provisions for automatic expiration, or at best some sort of procedure where the landowners would have to sign and record a renewal document. So yes, in many older neighborhoods, they lapsed – hence the bungalows on Whatever Street containing businesses, and small apartment complexes plopped in the middle of an older neighborhood.”
Okay. And back to what I said — this shouldn’t be difficult to identify. So no, Mel’s point about this being a herculean effort is wrong. As you state in your example, there are BUSINESSES and APARTMENT COMPLEXES in an area that was at one time perhaps restricted on use to single family homes. Figuring out that those restrictions are no longer in effect for whatever reason is not rocket science in light of the BUSINESSES and APARTMENT COMPLEXES on the street. Deed restrictions are pretty simple: enforce them or lose them.
“The statutes dealing with how to put deed restrictions in place with less than 100% buy in didn’t get enacted until the mid to late 80s. Those statutes include a method where someone in a neighborhood trying to enact deed restrictions can opt out.”
Right — so they’re not EXEMPT, they are simply not subjecting their property to NEW restrictions. Do you see the distinction there? A landowner whose property IS restricted can’t later say, “oh, you know what, I’m going to go ahead and exempt myself from these restrictions.” Rather, under the statute you are referring to, it is addressing implementing NEW restrictions and the landowner says, “my property will never be subject to any restrictions” and opts out. There’s a big legal difference there. And in any event, this is public record so identifying who opted out is simple, again negating any claim that it’s a herculean effort.
“My personal experience in getting the city to enforce deed restrictions from when I was the officer in charge of that for my neighborhood (granted, pre Feldman) was that there are only certain restrictions the city will enforce, and even then they often didn’t respond one way or the other for ages. So we would do it on our own if need be, which does get expensive.”
Sure, that’s true, depending on what the violation is. For example, if you complain that a house is violating a setback by 3″ then the city may be disinclined to help you. If, on the other hand, you are trying to stop a 21-story condominium from being built among single family residences where deed restrictions dictate only single family residences may be built then you shouldn’t have any issues getting the city’s help, assuming you haven’t waived your restrictions by not enforcing them, e.g., by letting BUSINESSES and APARTMENT COMPLEXES be built on restricted land.
You guys need to see the forest through the trees here. It is not difficult to figure out if (a) there are use restrictions on land, and (b) whether those restrictions are in effect. The homeowners that are the subject of this article shouldn’t be heard complaining that they needed a crystal ball to foresee this; I understand though that this is a separate issue from whether the development is a nuisance.
creole crusher, good for you that you were able to get David Feldman to enforce your deed restrictions. And it’s great that you have so much faith in the system and trust that none of your neighbors (now or fifty or 100 years ago, whatever the case may be) exempted themselves from or opted out of the deed restrictions, that there has been no waiver or abandonment or expiration of the deed restrictions and that the City Attorney’s office will continue to enforce those deed restrictions for you and your HOA.
@ Mel: Mel wrote, “creole crusher, good for you that you were able to get David Feldman to enforce your deed restrictions. And it’s great that you have so much faith in the system and trust that none of your neighbors (now or fifty or 100 years ago, whatever the case may be) exempted themselves from or opted out of the deed restrictions, that there has been no waiver or abandonment or expiration of the deed restrictions and that the City Attorney’s office will continue to enforce those deed restrictions for you and your HOA.”
I wouldn’t say I necessarily have a lot of faith in the system; I do, however, realize that the homeowners that are the subject of this article could have researched these issues and learned long ago of the risk of buying there. Contrary to your claim, this is not that difficult. You’re right, though, waiver and abandonment are big issues in many of these cases. But this conversation is focused on use, which isn’t difficult to identify in most cases. For example, it’s pretty simply to see if your deed restrictions limit use to single family homes and whether only single family homes have been built. On the other hand, whether a setback requirement has been waived because homes are consistently a small number of feet off could be very difficult to identify — what are you going to do, go around measuring everyone’s house? But it is EASY to identify whether someone is about to be operating a BUSINESS or APARTMENT COMPLEX on restricted property and to step in to stop it. After all, if you don’t do so, you could be found to have abandoned that restriction. In fact, the use restriction is, to my mind, the most important and easiest to enforce.
I’m not going to respond further than this, however – in my seven years as the deed restriction enforcement officer for my subdivision, during which time there was a lot of new building going on, I got the city attorney’s office to say that they would help out on an issue exactly one time – and that was six or eight months after we’d managed to persuade the property owner to voluntarily comply. Was it a 22 story building? No, but it was a clear violation of a setback restriction; hence the ability to resolve it amicably.
That said, knowing that things can’t always be reduced to a simplistic ideal by shouting does not mean that one can’t differentiate between a forest and trees.
Happy holidays.