Whose Rights?

Early this month, a Texas judge ruled that developers can proceed with the Ashby high-rise in Houston, but that they have to pay nearby residents $1.2 million for damaging their property values. Planning advocates say this makes the case for zoning, while zoning critics say the damage award will merely encourage NIMBYs.

Developers plan to proceed with construction even as they promise to appeal the damage award. The case has been in court for seven years, damaging Houston’s reputation as a place where developers can easily get permits and build for the market.

Planning advocates should be careful what they wish for. As residents of Vancouver, BC, Portland, Seattle, and the San Francisco Bay Area have learned, zoning can be used to impose high rises and other high-density developments on neighborhoods that didn’t want them just as easily as it can be used to prevent such developments.

The Antiplanner wouldn’t want to see a high rise next door to my house. But Houston has a system of dealing with land-use disputes that is unusual if not unique. Most residential areas in the urban area, including about half the residential areas in the city of Houston, have deed restrictions and homeowner associations to monitor, enforce, and change those restrictions.

Residents of Rice Village, the neighborhood that objected to the high rise, either weren’t under such deed restrictions or their neighborhood didn’t include the parcels on which the high rise is to be built. In Houston, residents living in an area without restrictions can petition their neighbors and, if 75 percent agree, they can write their own deed restrictions. But apparently no one in Rice Village took the trouble to do this until after the high rises became an issue.

Property rights should be simple: you either have them or you don’t. If they had a right to limit the height of buildings in their neighborhood, they could have prevented the Ashby high-rise. But they didn’t have that right, so when they purchased their homes they should have been aware that such a high-rise could be built. As one of the Ashby developers said of the “damage” award, “you can’t be damaged by something that doesn’t exist.”

Zoning takes issues like this out of the area of rights and into the realm of politics, making it possible to change it on a political whim. Is the fad for high rises this month? Rezone someone’s land. Do industrial developers want more land and did they make the right campaign contributions in the last election? Then rezone someone’s land.

Will a land-use regime based on property rights always be perfect? No, but it will be better than one based on political power.


9 thoughts on “Whose Rights?

  1. prk166

    No one has a right to limit the height of the building. They do have a right to property which would be affected a tall building next door. For example, a previously sunny backyard may no longer get sunlight. I’m not sure why the Anti Planner doesn’t recognize this.

  2. bennett

    Damaging property values? In cities like Austin, which have zoning, building high rise structures (aka increasing density) leads to skyrocketing property values. The West Campus neighborhood is seeing this right now.

    I’m always interested in the semantics of property values. Antiplanners see planning as making housing too expensive. Planning advocates see planning as increasing the value of property. At public meetings developers and real estate agents always show up demanding that land use regulation is going to decrease property values. As Mr. O’Toole has pointed out several times, the opposite is usually true. I’m not the planning advocate that denies that planning has an impact on property values, I just find it interesting how for the sake of argumentation the same impact can be used as a good or bad outcome.

  3. Jardinero1

    I live in the Houston Metro. I have followed this for a long while. Locally, this has provided a great deal of entertainment value. Your typical Houstonian enjoys watching the rich and powerful fight one another.

    The nuisance, in this case, was ground movement caused by the weight of the development and the adverse impact it would on the surrounding structures. The jury ruled and the judge ordered in spite of the fact that the nuisance was theoretical and no party has yet suffered harm. The developer may proceed as long as he pays the plaintiffs. The structure will have a minimum of 139 units which means that the jury award will add about 8600 dollars to the price of each condo. The developer is appealing and many bright minds believe he will prevail on appeal.

    Living next to a tower is not that big a deal. I live in the shadow of this one: http://www.endeavour-condo.com/ Everybody complained when it went up but nobody cares about it anymore. Houston is littered with towers adjacent to single story residential. It’s not that big a deal and it really does boost values in the adjacent neighborhoods. The rather dense tree canopy prevents you from seeing them. The Oaks in my neighborhood obscure the view of the tower near my house.

  4. Jardinero1

    Zoning does not prevent these things from going up. The tower in my neighborhood is located just across the city boundary, in Pasadena, which has Euclidean zoning. My house is on the other side of the boundary, in Taylor Lake Village, which also has Euclidean zoning. Nobody in Pasadena complained about the tower and nobody in my city could complain.

  5. Dan

    Before I read Jardinero’s comment I would have thought that the objection would be the shadowing. Large shadows from an early high-rise in NYC – IIRC covering ~7 ac – prompted one of the first zoning codes in the country. A subsequent decision in Florida ensured that neighbors in the US have no solar access rights, which is the common reason for opposing high-rises, as we can’t rely on law like most other places to preserve sunlight. In Great Britain, they had to issue a clarification to their solar rights laws to remind everyone that things you do may affect others.

    Nevertheless, fascinating outcome – I’m going to pay closer attention for a while.


  6. Jardinero1

    In Houston, it is frequently overcast or raining, especially in the Spring, Summer, Fall and Winter. People here rarely notice shadows from buildings because buildings so rarely cast a shadow. Or, if they do, the shadow is blocked by the tree canopy.

  7. Tory

    First, let me point out that the sun moves across the sky both over the course of a day and the seasons, so any shadows are only partial/temporary (think of a sundial). In Houston, a big shadow would be a godsend in the summer – probably cut your A/C bills in half.

    Second, the city passed a new setback ordinance for high-rises after the Ashby controversy got started, so future high-rises in the city will have much more spacing from residential homes, which should resolve a lot of the problems. Ashby was grandfathered under the old rules since that’s when it sought its permits. But I do think it will ultimately be a non-issue once it’s built. We have towers all over, including right next to our highest end neighborhood, River Oaks, and they’re not a problem and don’t reduce property values.

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