[Urbannizer]

Battle heats up over proposed tower in Uptown

A Houston developer has filed a pre-emptive strike against the owners of a luxury high-rise near the Galleria to head off an "inevitable lawsuit" over its plans to build a tower next door.

Brown said Wednesday that her group met with the developer, Dinerstein Co., several times to discuss homeowners' concerns over the size of the proposed tower, its proximity to their own 22-story building, and related traffic and safety issues. She said the association wants the building to be half as tall and 100 feet farther away.

But she said she was surprised to learn that the owner of the lot next door, an affiliate of Dinerstein Co., had filed suit against her group.

In its lawsuit, the developer is asking for a declaratory judgment prohibiting the homeowners association from asserting a nuisance claim for the construction of the tower. It also wants a judge to declare that the association does not have standing to assert an action "based on alleged violations of city ordinances." Attorney's fees are also being sought.

The developer claims in the lawsuit that it addressed concerns raised by the condo owners by modifying the proposed building's design. The changes included lowering the height of the parking garage, allowing it to line up with the Cosmopolitan's garage; moving the building's cooling systems to the roof; and designing the structure so views from the Cosmopolitan would be less obstructed.

Another key point in the lawsuit is a construction agreement between both property owners that was put in place when the Cosmopolitan was being developed in 2006.

That developer obtained a "temporary use and aerial encroachment easement agreement" from the then-owner of the Post Oak property. The agreement allowed construction equipment to essentially swing above the neighboring property.

As part of that agreement, the Cosmopolitan developer granted a reciprocal easement, allowing the Post Oak property owner to build a high-rise on its land in the future with the same construction rights.

Bill Miller, a consultant hired by Dinerstein, said the company hopes to resolve the matter peacefully.