A Threat To Retrofitting Sprawl?

Because Houston has no formal zoning code, one might think that infill is easier there than in other cities.  But a few neighborhood activists may create a new obstacle to infll: nuisance law.

Historically, a landowner may be liable for nuisance only if their behavior unreasonably interferes with another's use of land.  Nuisance law has usually been applied only to polluting industries.  But in Houston, residents of a wealthy Houston neighborhood are suing to prevent a developer from building a high-rise on a nearby street.  Instead of following the traditional nuisance standard, the judge instructed the jury to find a nuisance if the high-rise was "abnormal and out of place in its surroundings."  Not surprisingly, the jury said "yes" and found a nuisance. If other courts applied this "out of place" standard, nuisance law could be used to enshrine sprawl and eliminate new urbanism forever, since even low-rise walkable development is "abnormal" and "out of place" in most of the United States.  Fortunately, the developer will appeal this ruling.