Raise high the roof

A battle Uptown targets the city for bending its own rules

Claude Albritton, owner of the celebrated McKinney Avenue Contemporary arts and performance space in Uptown, is steamed. Last year, city building inspectors forced him to heed zoning restrictions and scale back his plans to expand the MAC's Kitchen Dog Theater.

Because of the order, Albritton, one of Dallas' top arts patrons, stood to lose about 80 potential seats and the revenue that went with them -- a big blow to a small arts venue's bottom line. But in the end, he complied with the law.

Now, Albritton says the same inspectors are shortchanging him and his Uptown neighbors. He charges they have failed to demonstrate sufficient zeal against a nearby townhouse builder, who he alleges is shredding zoning rules, and he thinks he knows why.

"The city is selling out the neighborhood to developers," Albritton says. "You have some people who have to conform to the codes as they are written, and you have some people who do not." The significance of it all, he fears, is that development forces that have stripped the downtown business district of its "human qualities" are seeping north into Uptown.

The dispute centers on a small parcel of land at the corner of Oak Grove and North Hall Street, where local developer Richard Finlay is rapidly building three luxury townhouses he plans to sell for up to $1.5 million each.

Finlay, charge Albritton and other neighbors, is ignoring Oak Lawn district (which includes Uptown) zoning rules that limit building height to no more than 48 feet -- or 55 feet in this case, since the city Board of Adjustment, which grants zoning exemptions, gave Finlay a variance. The code also calls for front yard "setbacks" of at least 10 feet, maximum lot coverage of no more than 80 percent of the property, and minimum landscaping requirements.

But Finlay is building up to the property line. Angry neighbors say the project exceeds lot-coverage limits, leaves little room for landscaping, and violates height rules as well, even beyond the variance he was granted. The building's eventual height, they insist, will be more like 64 feet. "They're trying to put too much building on too little a piece of property," says Edward Bennett, an architect who owns a small office building next door. "The whole thing is a real travesty."

The lack of setbacks is especially worrisome, say neighbors, since the intersection lacks a traffic light and is already a magnet for accidents. "There's gonna be deaths out there, because people come flying down that intersection," says Bennett, who recalled an incident two decades ago in which department-store magnate Stanley Marcus was sideswiped there. His car, Bennett recalls, crashed into the porch of a since torn-down frame house.

Angered by what they charge is a double standard -- and worried the project will blight the neighborhood and hurt property values -- Albritton, Bennett, and nearby homeowner Joel Sanders on October 28 sued the city to enforce its own laws. The lawsuit also names Finlay and project architect Jack C. Irwin (who, interestingly, leases office space from Bennett), demanding they immediately comply with zoning codes.

But city officials aren't up in arms. Citing an obscure loophole, they have given the project their blessing. The loophole: They claim the other zoning restrictions (setback, lot coverage, and landscaping) don't apply if the building's height is measured beginning at the top of its parking garage, which is 9 feet off the ground, rather than the typical "grade level" of cold, hard earth.

Under this rubric, the house that sits on top of the parking garage meets setback and other rules, which is what city officials say counts. While they claim at least two precedents for this method, it appears this type of measurement from the ground is peculiar to Dallas.

The Uniform Building Code, national professional standards that Dallas has adopted and amended, cites no such methods for setting grade level. "I've never heard of that before," says Larry King, manager of building inspection in suburban Mesquite, when apprised of Dallas' unique methods.

Perhaps the developers surmise they possess biblical powers, jokes attorney Karen Gammon, who represents Albritton and his allies. "Moses may have parted the Red Sea, but now Finlay and Irwin attempt to levitate the ground," she wrote in the group's lawsuit. By "raising the ground" in such a manner, she says, any builder can "manipulate [zoning laws] by raising 'ground level' to the heavens."

Despite all this, an official with the city attorney's office, who spoke on the condition that his name not be used, says his office stands by the judgments of city building inspectors. The official says the community was given an ample period of time to contest the permits. "If the plaintiffs can get [the court] to revoke the permits," he says, "then what permits in this town are safe?"

Finlay insists his project is "absolutely not" in violation of zoning codes, but declines to elaborate further. So does his lawyer, zoning and land-use attorney Kirk Williams. Irwin, who applied for the original permits last February, argues that the townhouses will enhance, not diminish, neighborhood property values.

He threatened a possible defamation lawsuit if the Dallas Observer went forward with a story. "This has been tried in the courts," he says. "It's a dead issue. It's a non-issue."

Not exactly.

So far, the Uptown trio's lawsuit has met some success. On December 3, Judge David R. Gibson agreed that building permits for the townhouse project were issued "in clear violation of Dallas City Ordinance 21859." But he declined to take action, claiming he lacked jurisdiction because the group failed to exhaust their appeals to the Board of Adjustment.

The city didn't act on Gibson's advice. The anonymous official dismisses the judge's declaration of city malfeasance as "dicta," which is lawyerese for "superfluous bullshit."

Meanwhile, attorney Gammon argues that Gibson's comment wasn't meaningless "dicta" but sage advice that city officials should heed. Nonetheless, she says Gibson's order for her clients to exhaust their appeals isn't germane. Her clients have already tried that with little success, she says, and therefore are stuck in a Catch-22.

That's because the board won't even accept the group's appeals, citing a 10-day deadline that expired months ago. Even so, the issue is moot, Gammon argues, because her clients aren't appealing a "variance" to zoning codes the developers requested, under which a deadline would apply. Rather, she says, they are attempting to roll back a project that breaks the law.

Meanwhile, Gammon is appealing Gibson's ruling by calling on another judge, Bob Jenevein, to declare that Gibson has authority to rule on the matter, a ruling that could be handed down later this week. The twists and turns of the case through several city agencies, she says, illustrate her belief that the city is becoming as corrupt and arbitrary as Chicago or New Orleans in enforcing its own building laws.

"I have never been so frustrated," says Gammon, who normally handles corporate cases. "It's like they make their own rules."

Gammon's clients may be in the same boat as homeowners near Lower Greenville Avenue's bar strip who fault city zoning enforcers for arbitrary enforcement. Angry over a lack of parking space at local bars that forces noisy revelers to park on their streets, they charge that zoning officials are too quick to grant exceptions (Buzz, January 6).

Upset that the Board of Adjustment recently issued a variance to a Dodie's Seafood Café that allows it to make room for a veranda by cutting parking spaces, the homeowners complained to council members Veletta Forsythe Lill and John Loza, who pressed for city intervention. Because the council lacks authority to reverse Board of Adjustment decisions -- only a court can do that -- the city last month came close to suing itself to settle the matter (Mayor Ron Kirk scuttled the idea).

So far, however, Lill and city attorneys are less sympathetic to the beefs of Albritton's crew. "What the city has to do is rely on the interpretation of its building officials," says Lill, who points to a new internal review panel as evidence the zoning board is getting its act together.

Why has the city not taken action against the townhouse developers? The disgruntled property owners claim top officials performed a cost-benefit analysis that put the city's bottom line over enforcement of its own laws. Bennett claims Lill, who represents Uptown, confirmed this to him in a September 30 phone conversation.

"Veletta made the comment that even though the city might be at fault, she has been advised by [assistant city attorney] John Rogers that the city...will suffer less damages if the neighbors sue the city than if the developers' big law firm sues," he recorded in his notes.

Rogers didn't return calls for comment, but Lill flatly denies making the remark.

Bennett, who sits on Richardson's zoning board, says he wonders what happened to the vigilance Lill showed in the Lower Greenville dispute, which didn't even occur in her district. "Here, she won't even help out with a problem in her district that's a lot worse," he says, pointing out that Lill serves with project architect Jack Irwin on the leadership of the Uptown Public Improvement District, a civic group that pays for neighborhood improvements. (She says she barely knows Irwin.)

Lill argues the circumstances are different between the two conflicts and says officials may have to let construction of the townhouses continue because former city zoning chief Claude Forte approved the project as far back as 1992 -- even though official permits weren't granted until last February.

Before the lawsuit, Bennett was perplexed when building officials took action on his complaints to withdraw the permits, only to back off later. Reiterating Bennett's complaints word for word, Ed Simons, development coordinator for the city's building inspection division, on September 16 revoked Finlay's building permits, an action that derailed the project. He also left a message on Bennett's answering machine stating the permits had "shaky value."

But then Simons, who is also targeted in the suit, had a change of heart. On September 24, he issued a terse, two-sentence letter that reinstated the permits -- without stating why the project now met zoning criteria.

Bennett, who initiated the first complaints against the project, laughs in disbelief when he recounts the case's many details. He says he's glad to be retiring soon and leaving the Dallas development milieu. Eventually, he may not renew Irwin's lease in his building, he says.

"These guys are getting in bed together and doing what they damn well please at everyone else's expense," he says. "The whole thing keeps dragging out, and all the time these guys keep building and building."

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