First the basics: Developer Tim Headington — the guy behind the revitalized Joule Hotel — wants to build an outlet of the upscale retailer Forty Five Ten across Main Street from the boutique hotel. He's torn down a couple of old buildings abutting the similarly old Wilson Building. That building's owned by apartment management company Forest City, which also owns the Mercantile, Continental and Element buildings downtown. Initially, the plan was to put Forty Five Ten in the existing buildings, but structural issues forced their demolition. Forest City, under the impression that no units in the Wilson would be affected by the new store, got upset when it found out that the new construction would be two stories higher than they expected. At least eight units in the Wilson, according to the management company, would become virtually uninhabitable if the new store — intended to go up just five feet from the apartment building — gets built, because they wouldn't have sufficient access to light and air.
Forest City sued Headington, claiming that denying air and light to the units would constitute a nuisance under Texas law. Headington has fired back, asserting in a filing that "air and light" aren't rights in Texas. The lawsuit should be tossed out, Headington says, because Forest City can't show any damages that don't stem from the legal development of the Forty Five Ten property.
In response to Headington's shrug in the direction of light and air, Forest City has filed an amended lawsuit, soft-pedaling their initial nuisance claims. Instead, Forest City is now focusing on damage it claims the Wilson suffered during Headington's demolition of the previous two buildings.
"In preparation for the new construction of this retail structure, one or both of the Defendants demolished an existing structure on the Adjacent Property. The then-existing structure, constructed in or around 1911, stood 3 stories tall and abutted the Wilson Building at the shared property line between the two buildings. During the demolition process, one or both of the Defendants caused significant damage to the western wall of the Wilson Building, including damage to bricks, plaster, windows, and in two locations, a complete piercing of the western wall of the Wilson Building," Forest City said.
When Forest City wanted to repair the Wilson, it says, Headington denied the company access to the building to fix its facade.
"Defendants’ proposed use of the Adjacent Property to construct a retail structure abutting the Wilson Building’s western façade will constitute a nuisance and will substantially and unreasonably interfere with Forest City’s use and enjoyment of the historic Wilson Building, such construction will also interfere with necessary repairs to the Wilson Building. Defendants’ refusal to acknowledge responsibility for the damage to the western wall and its refusal to provide for or permit the repair of the western wall are intentional, and Defendants know that this proposed development will cause damage to the Wilson Building. Defendants’ substantial and unreasonable interference and trespass will cause permanent damage to the Wilson Building and thereby significantly diminish the market value of the property," Forest City said.
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Bill Brewer, the lawyer representing Headington, blamed the damage on the Wilson's construction.
"It is not surprising to our client that Forest City is making such claims, given that the demolition of the existing structure on our client's property revealed the faulty construction of the Wilson Annex," he said in statement. "Our client continues to believe the lawsuit by Forest City lacks merit. We welcome the opportunity to bring the facts of this case into full public view. This project is widely supported in the community — and promises to contribute to the revitalization of the central business district."
The first hearing in the case is scheduled for August 31.
(Note: I live in the Wilson. My apartment would not be affected by the new building.)