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Hardballs

Roscoe Betz has reams of engineering data to show that DART caused the flooding on his street by building a parking garage on top of a creek.

Sorry, but every once in a while life just hits you over the head. Dallas Area Rapid Transit finds out it's short a billion dollars on its construction budget. No big deal. Don't sweat it.

But let DART owe a few bucks to some humble taxpayer, and, wow, it's a different story. Call out the dogs. Line up the lawyers. This is serious.

I'll explain.

This is a story about a guy whose house has been repeatedly damaged by flooding because DART built a parking garage that acts like a river dam across the alley from him. DART is playing super-hardball on his damages.

But DART's not up for hardball when its own money is in question. You already know about DART's incredible billion-dollar budget shortfall. In November of last year, DART revealed that costs for new rail lines were suddenly a billion dollars more than what the agency had in its budget—twice the budgeted amount!

It was a shock. State legislators and city council members and citizens were insisting that DART be subjected to an outside audit to find out why DART was suddenly a billion short. But by the time the DART board got done schmoozing and cutting deals, the whole billion-dollar boo-boo was forgotten and forgiven.

No outside audit. Nothing. Find out why the budget is suddenly off by a billion dollars? Too much trouble. But pay this poor guy five grand for the damage to his house? No way. DART's all hard-core about that.

Let me say first I'm not the Lone Ranger in seeing something morally out of whack here. Former DART board member Joyce Foreman urged me to go hear Roscoe Betz's story. When she was on the DART board, she and former DART board member Beatrice Martinez tried to get DART to do right by Betz.

But Mayor Tom Leppert bumped Foreman off the board in August 2007. Martinez had been squeezed out the year before.

So once they were both off, what did we get instead from DART's board of trustees? The last six months have been a rollercoaster of budget shortfalls, conflict-of-interest imbroglios and influence peddling on the DART board, culminating in the death March 10 of former DART board president Lynn Flint-Shaw in what police have called a murder-suicide.

I have a thought. Maybe the kind of board members who could see that DART wasn't doing the right thing in the Betz case might have been able to do the right thing a little more often on some of these high-dollar issues as well. Character counts, they tell me.

This is not a complicated story.

Betz used to own a few dozen rental properties around town. He's an 89-year-old World War II veteran. "I joined the Army a year and a half before Pearl Harbor," he told me last week. We were sitting in his car.

"I joined in June of 1940. I was a young kid. I saw the airplanes up in the sky. I wanted to learn to fly. I didn't have money to take flying lessons, but the Army offered flying lessons for free. I was a B-29 pilot at the end of the war in the Army Air Corps."

After the war, Betz was a salesman for international correspondence schools until the early '70s, when the rise of community colleges more or less killed the correspondence school business. From then until now, he has earned his living by investing in rental properties.

I used to see him all over East Dallas in a beat-up car with a big ladder on top. He had a sideline doing tree trimming. At almost 90 years of age, his tree-climbing days are behind him, but he's still very active.

And very smart.

In 1988 DART built a three-story employee parking garage at Elm Street and Haskell Avenue. The rear wall of the garage forms a block-long barrier right across the alley from one of Betz's few remaining rental properties, a one-story wood-sided bungalow on Alcalde Street—one of those wonderful narrow little lanes in Old East Dallas that you'd never find by accident.

If you're a little bit of a local history wonk like me, you should go to Dallaslibrary.org on the Web and find the Murphy and Bolanz maps. Then search for Alcalde Street.

You will find a beautiful, hand-tinted plat of the neighborhood, undated as far as I could find but probably early 20th century. On that plat is a small river called "Peak Creek"—pale blue body of water with black borders—running right down the alley behind the lot that Betz owns now, exactly where DART has built its parking garage.

Betz provided me with a detailed history, backed up by engineering studies, of what the city has done with Peak Creek over the last century. Right now the creek is supposed to flow underground in two side-by-side, 10-foot-square conduits.

 

But on an average of every six years, torrential rains send floods roaring down the watershed in volumes many times greater than what the conduits can hold. Before 1988 that additional water, called the "over-flood," followed the historical and natural path of Peak Creek across what were vacant lots and on down toward the Trinity River.

Now there's a wall three stories high holding it back from nature's path—the DART parking garage. So when Peak Creek comes roaring back to life, the little houses across the alley on Alcalde Street flood to a depth of three feet, and families cower in attics.

Basic water law in Texas says that you can't change the flow of water in a way that screws your neighbor. In the past, Betz and his neighbors have sued DART, and DART has settled with them.

In 1995 a study by Halff Engineering left little doubt that the parking garage was flooding Alcalde Street. DART has attempted to cure the flooding problem by making openings in the rear wall of the garage, but the changes have been poorly designed.

A flood in 2006 did more than $3,000 damage to Betz's rent house and damaged other houses up and down the street. DART, which had paid full damages on earlier floods, went hardball this time and offered to pay only half the damages. Most of the residents snapped up the money.

Betz did not. Representing himself, he sued DART in small claims court, increasing his demand to $5,000 to cover copying and other costs.

At that point DART went super-hardball, claiming "sovereign immunity." That's a principle of law that says you can't sue a governmental entity for things it does in carrying out its duties. DART said under sovereign immunity that Betz's case should be tossed out, snuffed, not even heard. Kick him outta court, your honor.

Roscoe Betz—the 89-year-old former B-29 pilot, correspondence school salesman, real estate investor and tree trimmer—persuaded Dallas County Justice of the Peace Court Judge Al Cercone to give him a hearing on the question of sovereign immunity. Last October, DART sent a team of lawyers out to Cercone's court on St. Francis Avenue, and they had a day of it.

Betz beat 'em.

Cercone said the rule didn't apply. Betz had found the right exceptions to sovereign immunity. DART had to come to court and defend itself on the damage charges.

That trial took place in January, but both sides are still awaiting a ruling by Cercone. In the meantime, Betz continues to plead his case, always eloquently and backed up by engineering data, before the DART board and anywhere else he can find an audience, including parked in his car with me out in front of the house on Alcalde on a very hot recent afternoon.

I'm not a lawyer. I cited all of what Betz had told me in a very summarized form to DART spokesman Morgan Lyons and then put what I thought was the central question to him in the very best technical legal terms I could come up with:

"Why not pay the guy?"

It's five grand. The law says you can't change the flow of water in a way that damages your neighbor. They built a wall across a river. The poor attempts they have made at fixing the situation and the settlements they have made in the past demonstrate that they know they are at fault.

They gave everybody else half. The man's not asking a million dollars for emotional trauma. He wants what it cost him to get his house painted and caulked.

Why not pay the guy?

Lyons wrote me back: "Since the case is in litigation we're limited in what we can say, but I should note given the history of flooding in the area, going back to the 1930s, DART does not believe it is at fault and therefore feels the settlement offer is fair."

Yeah, you know what, DART? I think it would be very fair for you guys to open up to an outside audit and tell me why your construction budget was suddenly a billion dollars short last year.

Oh, and there was another incident last week where a citizen noticed that they were tearing up more than a mile of brand-new track in East Dallas before it had ever been used. The same Mr. Lyons said it was sort of a safety issue and would probably be charged to the contractor, therefore not to worry.

The cost involved? $600,000.

Well, how come it's always not-to-worry when you guys are on the line, but when it's some taxpayer you've screwed, then it's hardball? How come the kind of DART board members who actually sympathize with a taxpayer seem to get bounced off the board, and what we have left are people with their tongues hanging out and their fingers greasy, worried about who's going to get the next construction contract?

 

I don't think these folks think they are working for us. Like I said, sometimes it just sort of hits you over the head.


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