1717 Bissonnet, L.L.C. v. Penelope Loughhead
2016 WL 5462579, 500 S.W.3d 488, 2016 Tex. App. LEXIS 7073 (2016)
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Rule of Law:
Texas law does not recognize a cause of action for damages resulting from a prospective nuisance. A claim for nuisance damages, such as diminished property value, only accrues when an existing condition substantially interferes with the use and enjoyment of land.
Facts:
- In 2006, 1717 Bissonnet, LLC ('Developer') purchased a 1.6-acre lot in a Houston neighborhood that was occupied by a two-story apartment complex.
- In 2007, Developer announced plans to construct a 23-story (later revised to 21-story) mixed-use high-rise building on the property.
- A group of area residents ('Homeowners') strongly opposed the project, expressing concerns about potential negative impacts on traffic, aesthetics, privacy, and their property values.
- After numerous rejections of its plans, Developer entered into a settlement agreement with the City of Houston in March 2012, which provided for the approval of building permits subject to certain modifications and mitigation measures.
- The City issued the final building permit in March 2013.
- Following the permit's issuance, Developer demolished the existing apartment complex on the property but had not begun construction of the new high-rise project at the time of trial.
- Homeowners alleged that their properties had already suffered a loss in market value due to the public announcement and plans for the project.
Procedural Posture:
- Homeowners sued Developer in a Texas trial court, alleging the proposed high-rise project would constitute a future private nuisance.
- Homeowners sought a permanent injunction to prevent construction, or, in the alternative, monetary damages.
- A jury found that the project, 'if built,' would constitute a private nuisance to twenty-nine of the plaintiffs ('Homeowners').
- The jury awarded these Homeowners damages for 'Loss of Market Value' and 'Loss of Use and Enjoyment.'
- The trial court entered a final judgment that awarded Homeowners the lost-market-value damages but disregarded the damages for loss of use and enjoyment as not yet ripe.
- The trial court also denied the Homeowners' request for a permanent injunction to halt construction.
- Developer appealed the damages award to the Texas Court of Appeals, and Homeowners cross-appealed the denial of the injunction.
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Issue:
Does Texas law permit the recovery of monetary damages for the loss of property market value caused by a planned construction project that a jury has determined will constitute a nuisance if built, but which has not yet been constructed?
Opinions:
Majority - John Donovan, Justice
No, Texas law does not permit the recovery of damages for a prospective nuisance. A cause of action for nuisance requires an existing condition that substantially interferes with the use and enjoyment of land; a mere plan to build a project in the future is not a legally cognizable nuisance that can support an award of damages. The court reasoned that a tort claim for nuisance damages only accrues when the condition first 'substantially interferes' with property, as established in precedents like Schneider Nat’l Carriers, Inc. v. Bates. A decline in market value, standing alone, is not recoverable without a viable underlying cause of action, as a property's value can be affected by many non-tortious factors. Citing Sanders v. Miller, the court affirmed that an anticipated injury from a future condition cannot form the basis for a present damages award. Because the project had not been built, no nuisance yet existed, and therefore the jury's award of lost-market-value damages was based on an immaterial finding of a prospective, non-actionable nuisance.
Analysis:
This decision establishes a bright-line rule distinguishing between remedies for threatened versus existing nuisances in Texas. By precluding damage awards for prospective nuisances, the court shields developers from liability based on market speculation and public apprehension before a project is even built. The ruling clarifies that plaintiffs must wait for an actual, physical interference with their property rights before a claim for damages becomes ripe. This creates a clear temporal framework for nuisance litigation, bifurcating the pre-construction phase, where injunctive relief is the primary remedy, from the post-construction phase, where monetary damages can be pursued.
