Ashby developers sue city of Houston
Ashby developers sue city of Houston
They seek more than $40 million over rejection of high-rise project
By MIKE SNYDER
HOUSTON CHRONICLE
Feb. 11, 2010, 8:23PM
The battle over the Ashby high-rise moved to the courthouse Thursday as the project's developers, rebuffed by city officials for 2½ years, sought more than $40 million in damages from Houston taxpayers.
A lawsuit filed by Buckhead Investment Partners Inc. argues that the city bowed to neighborhood pressure and exceeded its legal authority in its 11 denials of the company's applications for permits to build a 23-story, mixed-use tower at 1717 Bissonnet.
City Attorney Arturo Michel vowed to contest the suit, saying Houston applied its laws appropriately to ensure that traffic generated by the development wouldn't clog nearby streets with traffic. And A neighborhood opposition leader suggested the developers were trying to make money in court that they couldn't earn in the marketplace.
Residents of surrounding neighborhoods launched an aggressive, well-funded opposition movement after the developers first sought permits in July 2007. The controversy renewed debate over how the nation's only major city without a zoning ordinance should balance neighborhood and real estate interests, a question that remains unresolved.
“The future of development in Houston rests in this case,” Kevin Kirton, the chief executive of Buckhead Investment Partners, said in a news release announcing the lawsuit. “It is about whether we are governed by law or by those with influence and political access.”
Based on ordinance
The legal dispute rests on the city's application of a driveway location ordinance, last amended in 1968, as the basis for refusing to permit the development. After the initial controversy, city officials worked for months on a new regulatory ordinance before abandoning that effort and applying the driveway ordinance.
The lawsuit says the city singled out the Ashby project to apply this ordinance in a “new and unprecedented” way, but Michel said this was not the case.
The city approved the developers' application last August after they removed most commercial uses to reduce traffic counts, but the developers never picked up those permits and instead appealed the city's denials of their original design. Kirton's partner, Matthew Morgan, said Thursday that the developers still intend to build something on the site, but the design and scope of their project will depend on the outcome of the lawsuit.
Although the petition filed in a Harris County civil court-at-law does not specify damages, Kirton and Morgan said they are seeking more than $40 million, which they said is the value the city's actions have taken from their project.
Chris Amandes, co-chairman of the Stop Ashby High-Rise task force, questioned this sum. The city allowed Buckhead to build a 23-story building with 210 apartments and 10,000 square feet of commercial space, he said, while they initially wanted to build 226 apartments and 25,000 square feet of commercial space.
“It is hard to see how that difference is worth more than $40 million,” Amandes said. “It appears that after realizing that their project cannot be financed in the marketplace, the Ashby developers are hoping that their profit might be found at the courthouse.”
Morgan and Kirton have said they had financing arranged for the development, and the only obstacle was the lack of a city permit.
Hoping for new policies
In the early months of the controversy, advocates of stronger land-use planning in Houston said they hoped the case would lead to new policies that encouraged dense development in appropriate places while protecting established neighborhoods.
But Tom Dornbusch, a neighborhood advocate who wasn't involved in the Ashby case, said he hasn't seen much progress.
“It comes down to what's appropriate to build considering the existing conditions,” Dornbusch said. He acknowledged that this often is a judgment call.
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