"Air and Light" Aren't Rights in Texas, Developer Says

A fight centered in what seems to be one of the most contentious blocks of downtown Dallas continued last week with developer Tim Headington asserting that Texas law doesn't guarantee apartment dwellers the right to access "air, light or a view." He was talking about tenants in the Wilson Building on Main Street, which used to be next door to several buildings knocked down by Headington's company in order to build an outlet for luxury goods store Forty Five Ten. 

Forest City, the management company that owns the Wilson and several other apartment buildings downtown, says it was misled by Headington about the Forty Five Ten project. It didn't expect the store to be five stories high, as now proposed, or just 5 feet from the Wilson. Multiple units on the Wilson's south side, Forest City says, will be virtually uninhabitable if Forty Five Ten gets built in its current guise.  

"Headington’s proposed use of the adjacent property to construct a retail structure will constitute a nuisance and will substantially and unreasonably interfere with Forest City’s use and enjoyment of the historic Wilson Building. Headington’s actions are intentional and Headington knows that its proposed development will cause damage to the Wilson Building. At least eight apartments in the Wilson Building will be denied almost all access to air, light, and view by the proposed development, and the damage resulting from this substantial and unreasonable interference will cause permanent damage to the Wilson Building and thereby significantly diminish the market value of the property," Forest city said in a lawsuit filed against Headington last month.

Thursday, Headington responded to Forest City's claims with a big "so what if it does:"

"Plaintiff's nuisance claim and requested relief should be denied because they conflict with well-established Texas law for at least five reasons: (i) no legal duty exists under Texas law to provide access to air or light or to refrain from blocking a view and, therefore the proposed building does not constitute a nuisance as a matter of law; (ii) diminution in property value due to the legal use of neighboring property is not a cognizable injury in Texas (iii) a nuisance does not exist under Texas law merely because of aesthetical-based complaints, as is the case here; (iv) Plaintiffs inclusion of a redundant request for declaratory relief solely for the purpose of requesting an award of attorneys' fees is improper in Texas; and (v) Plaintiffs requested injunctive relief is not cognizable under Texas law given the nature of the harm alleged in the Petition. Thus, Plaintiff's nuisance claim, including all the relief requested, should be dismissed for failure to state a claim upon which relief can be granted."

Headington says Forest City's lawsuit should be thrown out with prejudice, because the management company can't prove any potential damages that don't arise from Headington legally developing his property. Additionally, according to Headington's filing, Texas courts have never found a nuisance to exist merely because of aesthetical based complaints. That is because a nuisance generally requires an invasion of property by light, sound, odor or "foreign substance." In this case, Headington is merely potentially denying the affected Wilson-dwellers light and air, not adding anything new to their environment.

A hearing to discuss Headington's request for dismissal is set for August 31.

(Note: I live in the Wilson, but my apartment would not be one of those affected by the development.)

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