Eat My Dirt

A builder's guide to skirting the zoning laws and making the city look goofy

I know. We'll just do this as an IQ test. Here's the situation: You're a builder. The law says you can only build a new condo building on Oram Street in East Dallas 36 feet or three stories up from the ground. You want to go up four stories, so you can sell more condo units. That would be illegal.

But you go ahead and build all four stories. You also build tall, open masonry boxes at all four corners of your building, and you fill these boxes with dirt. When the building official comes to inspect, this is what you tell him:

"Look, Mr. Building Guy, these boxes are filled to the brim with dirt. Am I right? The ground, as we call it, is basically dirt, right? So dirt is also ground. Right? Try to concentrate.

"OK, the roof of my building is only three stories up from the ground in these boxes. So I'm within the law. Right?"

Here's the IQ test part. Your question is, what happens next (choose one):

1) The official removes one work glove from his hand, takes it loosely in the other hand and uses it to deliver several quick, sharp slaps to your face.

2) The official asks what month it is and can you name the President of the United States?

3) The official says, "Oh, good point. I never thought of just piling up dirt in boxes and then claiming the tops of the boxes are the ground. Yes, indeed, you have outfoxed the law, you wily devil. You may proceed unencumbered by my attentions."

If you answered No. 3—proceed unencumbered—then you must have a very high IQ, because that's exactly what the City of Dallas building official told Tom Nelson, the developer at 6159 Oram. More to the point, the official's decision was just upheld by the Dallas Board of Adjustment after a lengthy hearing August 12.

Wait! This is a real case? Oh, yes, indeed, dear reader. It's as real as things get at City Hall.

It happened. A guy really did put 7-foot boxes of dirt next to his building so he could argue that the ground was 7 feet higher than it really was. And the City of Dallas really did agree with him.

This is a case I wrote about months ago when neighbors in East Dallas first realized what was going on ("Skirting the Zoning Laws," January 10, 2008). Back then, even Nelson, the builder, was amazed that he could get away with such a shenanigan.

"I was like, 'How in the hell can that pass?' I'm like everybody else," Nelson told me. "I hired an architect, and he goes, 'Well, now, I'll go check it out.' And he checked it out. Went through [City of Dallas] plan review. He said, 'Well, this is what you have to do. This is how you do it.' And lo and behold, it worked."

The hearing last week was before a "quasi-judicial" city panel asked to decide whether this building, now complete, should be allowed to stand. Had the panel ruled against the builder, he would have been forced to tear down the top floor of his edifice, a 14-unit condo building in a neighborhood of 1930s brick Tudor duplexes.

Make him tear off the top floor? Does that sound harsh to you? Look at it this way. Jamie Pierson, the neighbor who brought the matter to the Board of Adjustment, testified that his house, a two-story across the alley from Dirt Skirt Tower, already has diminished in value because of the tower, according to the county tax appraisal district.

Arguing against letting the builder get away with it, attorney Jonathan Vinson told the panel about Texas Supreme Court case law that says a city is not bound by its own official's dumb-bad decision. And Vinson showed the panel specifically where, why and how the dirt skirt project flies in the face of the city's own development code.

In fact nobody who testified—even the witnesses on the city's side—tried to say that you can raise the ground-level of your lot by filling planter boxes up with dirt. The people on the city's side just kept repeating that the deed was done, and the neighbors would have to eat it.

The Board of Adjustment is sort of like City Zoning Court. It's where you go if you think your neighbor has violated the zoning laws. The chairman of this particular panel was Rob Richmond, a person I have known for years, in whose integrity I have great faith. But we were really on opposite sides of the field on this one.

Richmond couldn't discuss the case with me, because of the quasi-judicial thing, but it was clear from all he said at the hearing that he thought it would be unfair to rake the builder over the coals, given that the building official had given him the go-ahead.

Before casting the deciding vote in favor of the dirt skirts and against the neighbors, Richmond said, "That was the building official's position, no matter how ridiculous it was."

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