Some of you may have seen the article on the West U. Examiner website about the Ashby developers filing a new lawsuit and wondered whether this represents a significant development. The short answer is probably not, for reasons that will be of little interest to anyone but lawyers.
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.
We will keep you advised of any significant developments in the lawsuit against the City.
Thank you for your continued support.
Stop AshbyHighRise Task Force