Ashby developers refile lawsuit

Originally filed in county court, the lawsuit by the Ashby Highrise developers has been re-filed in state district court.

[The suit] will focus more heavily on claims the project was denied permits for its original design because it was subjected to “capricious and unreasonable” standards.

Court documents submitted by attorneys for the Buckhead Development Partners, show the suit against Houston continues to center on the city’s application of the driveway ordinance as a basis to refuse a final building permit.

The city has said it is correct in its application of the ordinance and the inclusion of “trip-count” standards to guarantee safety and ensure streets in the neighborhood remain passable.

The plaintiffs continue to claim the city has reinterpreted the guidelines as a method of applying selective arbitrary conditions that have not been used in considering similar projects.

They cite a number of other recent projects that did get permitted as part of their case. I don’t know how similar those other developments actually are, but I suppose the point is to show that they were treated differently. Stop Ashby Highrise has read the suit (case number 201022700 – 7 on the District Clerk website) and offers this analysis:

In response to the developers’ initial lawsuit, which was filed in February, the City of Houston made a number of motions to dismiss certain of the developers’ claims. Without responding to any of the City’s motions, the developers apparently decided that they needed to revise their claims and they filed an amended complaint. In doing so, however, they dropped their takings (inverse condemnation) claim in favor of a damages claim under a federal law known as Section 1983. Section 1983 provides a cause of action for anyone who is deprived of a Constitutional right by a government representative purporting to act under authority of law. Section 1983 is a frequent vehicle for appealing unfavorable land use and zoning decisions made by local governments.

However, by repleading their case to drop their takings claim, the developers eliminated the jurisdiction of the court in which they originally filed the lawsuit (Harris County Court at Law, which hears condemnation cases). The City brought this defect to the attention of the developers’ lawyers, who then non-suited their case in County Court at Law and refiled their amended case in Harris County District Court. But it is essentially the same lawsuit, except that their demand for $42 million in damages is now based on the claim that their federal and state Constitutional due process rights were violated by the City’s actions. They also continue to assert a so-called “vested rights” claim, which if successful, would result in their being issued a permit for the project as they applied for it in April 2009 (the project with 184 peak hour trips instead of the 120 peak hour trips application in August 2009 that was granted). If they are successful on both their damages and vested rights claims, they will have to decide whether they want whatever money the court awards them or the permit, because they can’t have both. However, it is our assessment that they are unlikely to be successful on either claim, and the fact that they have had to revise and refile their lawsuit less than two months after filing it may be a harbinger of the obstacles that lie ahead.

Any lawyers want to comment on that? Prime Property and Swamplot have more.

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