Perhaps by now you’ve read my little 5,000 word ditty about Museum Tower and how it is destroying the Nasher Sculpture Center. There’s one aspect of the story that I didn’t get to address in the printed version: what happens if the two sides go to court? I don’t think that will happen for several reasons, not the least of which is that David Haemisegger, president of both NorthPark Management Company and the Nasher’s board, doesn’t want to sue. But, still, a lawsuit lies within the realm of possibility.
More than one knowledgeable person told me that a fix on the Museum Tower side could run to $20 million. How do you attach a brise soleil to a 42-story building that was never intended to support such a structure? The fix would be expensive. And it would wipe out any profit that the building’s owner, the Dallas Police & Fire Pension System, could hope to reap. In fact, it could put the project in the red. So they won’t want to fix the problem on their side.
On the other side, you have (among others) Renzo Piano. The famed architect who designed the Nasher told me that he will not change his roof. “What we can do is make a blind roof,” he said. “But I will never. Not out of respect for my work and out of respect for the legacy of Ray Nasher. I will never.” And, even if he did change his roof, that wouldn’t save the garden, which is right now being cooked by Museum Tower.
Piano acknowledged that bringing the matter to court has crossed his mind. “Those people [meaning the Museum Tower’s designers, developers, owners] don’t understand that we will make trouble for them if they don’t find a solution,” Piano said. “If there is any need of legal action, that will be done, of course. Nobody should think that they can destroy a building or an institution like this without any problem.”
So what would happen if the Nasher brought a nuisance claim against Museum Tower? One lawyer I talked to said that the Nasher would lose.
William Allensworth is an Austin construction lawyer with some skins on the wall. When I put the question to him, he was initially puzzled. He’d never handled such a “light trespass” case before. Nor could he call one to mind. So he did what any smart guy with skins on the wall would do: he had some junior associate do a whole bunch of work for him to try to figure it out. Allensworth was kind enough to send me a report on his findings. You can read the whole thing. But here’s the upshot:
To prevail in a nuisance claim, the Nasher would have to show that the Museum Tower developers invaded the Nasher’s interest in its land by conduct that was: 1) negligent; 2) intentional and unreasonable; or 3) abnormal and out of place in its surroundings.
Allensworth’s young associate wrote: “The developer was probably not negligent in constructing the new building because it did not owe a legal duty to the museum. Additionally, even if the developer’s conduct was intentional, … commercial development is not an unreasonable activity. Finally, commercial construction would not qualify as abnormal and out of place in the surroundings.”
What’s more, nuisance law relies on an objective standard. It doesn’t protect an “ultra-sensitive property owner.” That pretty well describes the Nasher.
As I say, though, all the forgoing is probably a moot issue. This thing is going to be decided in the court of public opinion, where different rules apply.