Any experience with commercial development busting restrictions (Texas)?

Started by RogerJ1 • 15 replies • 232 views

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RogerJ1 (Texas)
Posts: 550

Posted:

Anyone have experience with commercial development busting POA restrictions in Texas?

I saw it happen in front of The Woodlands, along I-45, north of Houston. The east side HOA let its restrictions expire without renewing/refiling them. Just weeks or months afterwards, a business developed on a vacant lot, then others followed, then houses converted to businesses.

What about when restrictions do not lapse. What other means do developers have to bust open HOA restrictions for commercial development?

In particular to me. There are two vacant lots north of me. One of them was bought by a corporation for higher than normal value, over $100K per acre which is higher than normal for residential in my area but a bargain for commercial. That small corporation's line of business is small retail outlets and it is growing rapidly (a year ago when it bought the lot, its website indicated about 40 outlets, now it has almost twice that), so fair chance that is it aim considering the price it paid for the lot.

I am not sure if my POA has the appetite to fight that owner if he/corporation do try to develop it. If it is purely retail, I do not care as I assume it would open others ability to go commercial. My concern would be a gas station since we use private water wells and I assume that would have a chance to poison the water table. So unless something like that, I would put up no protest.

Any have experience with an HOA/POA going commercial in Texas? If so, how did it happen?

AugustinD
Posts: 3,698

Posted:

As long as the developer has the approval of the city or county, and per meetings of commissions and councils that are typically well-noticed to adjoining neighbors and give the neighbors a chance to state their legal and "moral" (yeah right) objections, fighting any developer rarely results in success. An attorney would be essential (so that any violations of the law can be identified), and it will cost the HOA/COA a lot of money.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By AugustinD on 02/21/2022 8:11 AM
As long as the developer has the approval of the city or county, and per meetings of commissions and councils that are typically well-noticed to adjoining neighbors and give the neighbors a chance to state their legal and "moral" (yeah right) objections, fighting any developer rarely results in success. An attorney would be essential (so that any violations of the law can be identified), and it will cost the HOA/COA a lot of money.

In what states would your quote above apply?

Also, our lots are in and unincorporated area, so no municipality - only county. The City of Houston has extra jurisdictional rights in our area but I think it only applies to drainage and traffic and to have veto on the smaller cities trying to expand.

So would my County's Commissioners Court be the only obstacle?

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By AugustinD on 02/21/2022 8:11 AM
An attorney would be essential (so that any violations of the law can be identified), and it will cost the HOA/COA a lot of money.

The previous owner of the now-corporate-owned lot, filed a restriction discloser, "Notice to Purchasers" in county records that the new owner signed that acknowledges "THE RESTRICTIONS LIMIT YOUR USE OF THE PROPERTY..................."

What that public filing be enough to stop that particular owner?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By RogerJ1 on 02/21/2022 8:19 AM

In what states would your quote above apply?

I believe all states, cities, counties and the federal government regulate land use.

Quote:

Posted By RogerJ1 on 02/21/2022 8:19 AM
Also, our lots are in and unincorporated area, so no municipality - only county. The City of Houston has extra jurisdictional rights in our area but I think it only applies to drainage and traffic and to have veto on the smaller cities trying to expand.
So would my County's Commissioners Court be the only obstacle?

What do you mean by "obstacle"? Are you asking whether filing a suit is the only way to stop developers? If so, my answer is "It depends."

In what stage is the development? Has ground been broken? Is everything already built? Is it now being added to? Has the developer merely applied to the County Land Use yada department to do xyz but not begun building abc?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By RogerJ1 on 02/21/2022 8:31 AM
The previous owner of the now-corporate-owned lot, filed a restriction discloser, "Notice to Purchasers" in county records that the new owner signed that acknowledges "THE RESTRICTIONS LIMIT YOUR USE OF THE PROPERTY..................."

What that public filing be enough to stop that particular owner?

The current owner is bound by whatever covenants are on file with the county clerk, which would include whatever is on the plats. (Or vice versa. I think plats trump covenants when it comes to governing documents. Or the plats are officially a part of the covenants.) Do you have a right to enforce these covenants or what's on a plat through, say, a lawsuit? Or maybe starting with a demand letter, which might get you what you want? Or even better, by notifying the county that an owner is violating the plats (which the county spent a lot of money reviewing for compliance with county ordinances et cetera)?

Probably.

What I am posting here is at most, preparation for meeting with a land use-specialized attorney.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By AugustinD on 02/21/2022 8:35 AM

Posted By RogerJ1 on 02/21/2022 8:19 AM

In what stage is the development? Has ground been broken? Is everything already built? Is it now being added to? Has the developer merely applied to the County Land Use yada department to do xyz but not begun building abc?

Survey, with pin put in middle of lot and all corners. While maybe there is a residential reason for the middle pin, surveyors have told me it is often done in commercial development as the lot is dividend into separate parcels and often centered around that middle pin.

A company was doing soil samples, with a industrial truck with a large water tank on it, on the lot a few months ago eitehr right before or right after the surveying - all that was a year after the current owner bought it so it had nothing to do with the selling of the property. At first I thought it was a water well drilling company but it did digs all over the lot all day. Based on research, I found it is a soil sampling done to determine load bearing. It could be done for a large home, which is possible as there are a few 10K sq foot houses in my area, it is often done for commercial centers.

RogerJ1 (Texas)
Posts: 550

Posted:

Also, unrelated but demonstrates why I do not think the new owner would be shy challenging an HOA.

The new owner was a principal party in a small business group that recently, and successfully, sued the State of Texas, getting an injunction against a recent state law that hampered their business.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By RogerJ1 on 02/21/2022 8:42 AM

Survey, with pin put in middle of lot and all corners. While maybe there is a residential reason for the middle pin, surveyors have told me it is often done in commercial development as the lot is dividend into separate parcels and often centered around that middle pin.

A company was doing soil samples, with a industrial truck with a large water tank on it, on the lot a few months ago eitehr right before or right after the surveying - all that was a year after the current owner bought it so it had nothing to do with the selling of the property. At first I thought it was a water well drilling company but it did digs all over the lot all day. Based on research, I found it is a soil sampling done to determine load bearing. It could be done for a large home, which is possible as there are a few 10K sq foot houses in my area, it is often done for commercial centers.

Formulate your questions about whether something in violation of the covenants or plats is going on. Have a copy of the covenants and plats in your hand and know them well enough to communicate your questions. Call the staff at the County Land Use yada department and ask your questions.

Be prepared to not have the "land use vocabulary" the staff has and doing a lot of work to try to get command of this vocabulary.

A good land use attorney not only did law school and passed the bar, but has years of experience and training getting command of land use law, including of course vocabulary that is obscure to a layperson.

RogerJ1 (Texas)
Posts: 550

Posted:

I forgot to ask on last post:

If that owner does develop it commercially, which would impact adjacent properties directly, and the POA did not stop that owner, would the POA then be able to keep the other properties from developing to commercial? Wouldn't the POA have a pretty weak argument if it did try to stop others?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By RogerJ1 on 02/21/2022 8:58 AM
If that owner does develop it commercially, which would impact adjacent properties directly, and the POA did not stop that owner, would the POA then be able to keep the other properties from developing to commercial? Wouldn't the POA have a pretty weak argument if it did try to stop others?

Even if I were an attorney, answering such a question would require much more information.

I will say that, if a land owner is violating the covenants or plats, the longer adjoining land owners wait to object, the lower the chances of the adjoining land owners prevailing will be. For a few reasons.

When legal questions about what a land owner is doing arise, one of the first steps a land use attorney working for adjoining land owners may take is send a letter ordering the land owner to stop now and wait until the dispute is resolved. If the letter does not get a favorable response, the attorney may go to court to get a court order to stop the development until disputes are resolved.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By RogerJ1 on 02/21/2022 8:54 AM
Also, unrelated but demonstrates why I do not think the new owner would be shy challenging an HOA.

The new owner was a principal party in a small business group that recently, and successfully, sued the State of Texas, getting an injunction against a recent state law that hampered their business.

In my experience, or in my opinion, the reason developers seem to run roughshod over HOAs, adjoining land owners et cetera is (1) because development is nearly always said to intensely serve the economic needs of a city, county or the state; and (2) developers tend to be a part of well-funded corporate America and have the money for attorneys, lobbyists, and political donations to often get what they want.

I think I am being cute when I say that, "When a developer's lips are moving, he (or she) is lying." But from my observations it's true.

Some cities are talking about stricter land use codes that address climate change. Fat chance, given all the money at stake here.

I expect "Tragedy of the Commons" will be a well-known schoolgirl and schoolboy phrase 100 years from now.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Roger

More then one Texan has told me that Houston Zoning Restrictions are near zero thus a real hodge podge.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By JohnC46 on 02/21/2022 10:51 AM
Roger

More then one Texan has told me that Houston Zoning Restrictions are near zero thus a real hodge podge.

I am 10 miles from an obscure sliver of Houston city limits. I just mentioned it because it has high level jurisdiction mainly dealing with infrastructure and limiting other municipalities from expanding. I just mentioned it because it exists.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By JohnC46 on 02/21/2022 10:51 AM
Roger

More then one Texan has told me that Houston Zoning Restrictions are near zero thus a real hodge podge.

Thanks though. And that is most of Texas as far as zoning as I understand it.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By AugustinD on 02/21/2022 9:04 AM

I will say that, if a land owner is violating the covenants or plats, the longer adjoining land owners wait to object, the lower the chances of the adjoining land owners prevailing will be. For a few reasons.

When legal questions about what a land owner is doing arise, one of the first steps a land use attorney working for adjoining land owners may take is send a letter ordering the land owner to stop now and wait until the dispute is resolved. If the letter does not get a favorable response, the attorney may go to court to get a court order to stop the development until disputes are resolved.

This make me wonder if that is/was the strategy. The first thing the new owner did was put a large, commercial sign, advertising his corporation on the lot. I complained but the Board seemed to do nothing about it, including not letting me bring it up as an agenda item at a board meeting six months later as the sign sat there. Also, I called the number on the sign asking about the property. I was told the asking price was $850K for the lot which was over $300K an acre and almost 2.5 times what the owner paid. The lady also stated it was commercial only - she replied you could not build a house when I asked.

Now, I am suspecting the owner might have been doing that to give evidence if the POA never did anything about the commercial sign. The sign came down after about 7 months. I never heard if the POA forced it but I doubt it as the Board is more concerned over a small limb being in someone's yard than large issues - large issues normally are ignored.

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