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."

My problem is that the outcome here—letting the building stand—is not cost-neutral. The neighbors pay the cost in their own home values. And other builders who go by the rules pay the cost, whereas this guy gets to build an entire floor of sellable space that they did not get to build on the same amount of land.

What's on that top floor? I looked it up in the real estate listings: the fourth floor consists of two penthouse units now on the market for $329,000 apiece. That's two-thirds of a million bucks worth of real estate that this guy got just by filling boxes with dirt. He calls the building "The Novela," by the way. Glad he didn't name it "The Cuento Corto" (short story).

Jordan Schweitzer, a member of the panel who voted against the dirt skirts, asked Todd Duerksen, a city official, how high the builder could have piled his dirt in order to justify piling more stories on top of the building. Duerksen launched into a long answer about slopes and grades and retaining walls. Finally Schweitzer interrupted and said, "But this is a planter box."

Eventually Duerksen was forced to concede that under the city official's ruling in this case there really was no limit.

Steve Clicque, a developer who was sitting in the audience, slipped up to my chair and showed me a drawing for a brilliant invention of his own design—fat PVC pipes attached to the corners of a building and filled with dirt. By the city's own theory, Clicque's dirt-pipes would allow someone to erect the Empire State Building on a lot in East Dallas.

Clicque created his dirt-pipe drawing as a kind of bitter joke, to show how crazy this whole thing was. But I can absolutely guarantee you that the next builder who tears down a duplex in that neighborhood is going to try to do the dirt-skirt trick. And why not? Wouldn't you build some planter boxes, if it meant an extra $660,000 on your deal?

For that very reason, city council member Angela Hunt, who represents the neighborhood, told me she is supporting an ordinance to kill this practice once and forever. At least somebody down there gets it.

Jamie Pierson, the neighbor, had to pay a fee of almost $1,000 to get the Board of Adjustment to give him a hearing. He paid $375 an hour in attorney's fees to be represented at the hearing. The builder didn't even show up for the hearing. He was represented for free, in effect, by the Dallas City Attorney's Office.

Pierson told the Board of Adjustment that the City of Dallas building official's decision in favor of the dirt skirts "defies the laws of nature and of logic but most importantly, it defies common sense." He asked the panel to reverse the building official's decision and compel the demolition of the building.

A majority of the Board of Adjustment voted with Pierson, but the rules call for an 80 percent majority to overrule the building official. So Pierson lost.

Look, this isn't only a wacky story about City Hall foibles, or I wouldn't waste your time. Well, maybe I would. But not this time. This remarkable little saga is important because it's emblematic of a larger struggle at City Hall, one with serious implications for the entire city.

City government, as you know, is cash-starved. The mayor and city council won't vote for new taxes. But they have to get money somehow. Their mantra is always, "Grow the tax base, grow the tax base." But our mayor, a former construction industry executive, and a majority of our council members believe that the only way you can grow the tax base is with new construction.

East Dallas, left to its own devices, is proof that they are wrong. Consistently over the last several years, every time Dallas Morning News real estate editor Steve Brown has published one of his home-value surveys, East Dallas has outranked every other inner-city neighborhood except Oak Lawn in terms of home appreciation.

And what is East Dallas famous for? Conservation districts, historic districts, neighborhood activism. Admittedly it's a balancing act. East Dallas has to watch itself so it won't run off good investment. But the lesson of East Dallas—repeated in restrictive communities across the country—is that real value, the big value, the big growth in a residential tax base comes from carefully controlled neighborhoods with high emphasis on quality of life.

Not dirt skirts.

The Saga of the Dirt Skirts is a symptom of desperation. It's City Hall saying, "Just throw up some crap and pay us your taxes. We don't care." It's the crack cocaine of urban finance. Sure, you get a rush now. But you ruin your life.

We're in an exciting period of transition right now. Much of Dallas seems to be doing better than it has in 30 years. From Gaston Avenue to Fort Worth Avenue, from Jefferson Avenue to McKinney Avenue, every sign indicates the inner city may be on the verge of a vigorous boom. Perhaps that shouldn't surprise us, given all of the national predictions of a reversal from the 20th-century suburban paradigm.

But just like the suburban movement of the last century, the back-to-the-city movement will be spurred less by price than by that more powerful human experience—dreaming. We dream of a better, more interesting, more civilized life.

A very few people in our political life in Dallas get it. Like I said, council member Hunt does. She knows what care the city must take not to kill this delicate, golden gosling. Too often she is alone.

The sloppy, crass, ham-fisted behavior of City Hall in the dirt skirts saga—not to mention looking goofy—is disturbing proof that a majority at City Hall still doesn't have an inkling. That's a real problem for us. We'll have to do something.

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