In One Man's Legal Victory Against DART, There Are Lessons For Us All.
Roscoe Betz won his lawsuit. I have written about him before. He's the 91-year-old man who sued DART, the transit agency, three years ago for damming up a creek and flooding his property.
DART argued there was no creek. The guy just thinks there's a creek.
Two weeks ago a jury ruled there was a creek and DART was up it. On May 17 Dallas County Court At Law No. 2 Judge King Fifer signed a final judgment ordering DART to pay Betz and five other plaintiffs a total of $31,000—the max allowed by law for this type of claim.
How could somebody not know there's a creek? There's a creek or there's not a creek, right? Maybe not. Depends on who's looking.
On one level the outcome in the Betz lawsuit is a great story about one man's fight for justice. But at a deeper level it's a parable about people in cities and the way we have ceased to understand water.
We used to see it. On the wall of my office hangs a century-old plat map—something I acquired two years ago when I was first writing about Betz—depicting two blocks not far from my home in Old East Dallas. Drawn down one side of the plat map is a body of water called Peak Creek.
Compared to computer-generated maps cities use today, this drawing by a late 19th century draftsman is a work of art. The creek is shown between wavy black lines that depict its meandering banks. I look at those black lines and wonder if each bump and recession was the draftsman's rendering of actual contours in the banks. The channel between the banks is filled with a faint blue wash of ink. I see that blue and ponder whether the water in the creek could have been that hue.
When creeks were above-ground in cities and neighborhoods—up where nature put them—people saw them every day. Pedestrians walked along their banks. In places where the land dropped suddenly, people heard the drop of the land and saw it in the rushing clatter of the creek over stones and roots. Where the land leveled out, people saw its flatness in the thick, still depth of the water.
When rain deluged the land, the creeks rose and roared, ripping out and scouring away whatever structures foolish man had placed in their paths. Watching the devastation was one good way to figure out where not to put a structure next time.
During the Great Depression of the mid-1930s the federal Works Progress Administration came to Dallas, as it did to cities across the nation, and carried out major construction projects aimed at ending urban flooding for all time. Good idea. The problem was "for all time." Turns out human beings don't really know what "all time" means. The concept is above our pay grade.
The WPA put Peak Creek in two tandem 10-square-foot culverts—buried square-walled pipes reaching four and a half miles across East Dallas from Mockingbird Lane and Skillman Street to an outfall into a huge paved ditch at Jamaica Street and 2nd Avenue in South Dallas, a third of a mile south of Fair Park.
Ali kazam, shazam! Peak Creek in East Dallas no longer existed. A thing of the past. Forgotten. No one walked beside it. No one saw or heard it falling across the land. The world was made by man, and the world was dry.
In 1986 just before voters created the new regional rail and bus agency called DART, the old city-owned bus system began construction of an employee parking garage straddling a block of Peak Avenue between Victor and Elm Streets. Today it's on top of what used to be a block-long stretch of Peak Creek. I can see the creek in that spot on my 100-year-old plat map, veering south from a bridge on Carroll Avenue to a bridge on Elm Street.
When the box culverts were being built in the 1930s, the WPA probably wanted to hold down costs by keeping the construction off private property. It ran the culverts down an alley between Victor and Elm streets, 100 feet or so away from the creek's natural streambed, behind a row of small houses on Alcalde Street. But that involved putting a couple of kinks in the flow of the water. Where the stream had curved over the land following natural contours, the culverts made right-hand turns, one into one end of the alley and another at the other end.
Water doesn't like to be told what to do. It especially doesn't like to be told to make 90-degree turns.
On March 19, 2006 in the heart of the region's annual spring monsoon season, rain drenched Dallas for hours. Water flowed across East Dallas in sheets, racing downhill and into the inlets where it was to be carried away by the two box culverts that had replaced Peak Creek.
According to a DART-commissioned engineering report discovered by Betz's attorney, Jason Ankele, the culverts, by then almost three-quarters of a century old, were in serious disrepair, full of trash, walls cracked and crisscrossed by pipes punched through them over the years including leaking sewage pipes. Betz told me some witnesses have reported seeing mud five feet deep in sections of the ten-foot-deep culverts.
On that day in March, too much water tried to get into the collapsing culverts too quickly. At some point that afternoon, iron manhole covers began to blow, exploding up into the air by the force of the water below. Heavy four-square-foot iron grates floated up like twigs.
When that began to happen—when the culverts were overwhelmed, and the water began shooting up into the air—Peak Creek was reborn. It was above ground again and flexing its muscle, no longer constrained by the culverts, not about to flow where man told it to flow, seeking instead its ancient streambed.
In fact Peak Creek has come back to life every six years or so, probably from the time the culverts were first built. Betz had sued DART over earlier floods and lost. He credits his victory this time to having a better lawyer.
On March 19, 2006, when Peak Creek came raging back to life along the block on my old plat map, it tried to cross the block where nature had always told it to cross, in the original streambed. But a dam was in its way: the DART employee parking garage.
When I visited Betz and his wife in their East Dallas home last week, he pulled from carefully kept files a series of photographs he made the day after the flood: a tape measure shows debris and watermarks which prove that Peak Creek—which isn't even supposed to exist anymore according to DART—rose to a depth of 34 inches above the ground along the alley side of the DART parking garage. It was enough to flood the houses on the other side of the alley along Alcalde Street to a depth of eight inches above floor levels.
Betz owned rent houses on Alcalde, which he has since sold. But he still has friends and in-laws who live on Alcalde, some of whom joined him in his suit.
His mind and memory are sharp. He recalled a bit of testimony for me. He said a DART lawyer confronted him with a statement he had made at some point in the past about floods that had occurred along Alcalde before the garage was built.
"I had said the water was rushing across the property back then," he said, "and they thought that meant it was flooding."
DART wanted to show there had always been floods, even before the garage was built, so it wasn't the fault of the garage that the houses on Alcalde flooded.
Betz explained to the jury that rushing water is a relatively good thing, because it's rushing away. Fast-moving water is falling quickly across the land and therefore won't get deep. It's when something stops the water—dams it up and won't let it rush away—that water rises and creates a flood.
By the way, Betz has only good things to say about the lawyers who represented DART in terms of the way they treated him and spoke to him. He said Gene Gamez, an assistant general counsel for DART, was "a good guy."
Betz's lawyer, Jason Ankele, told me that much of the legal battle did not involve flooding. Ankele was more focused on DART's claim of "sovereign immunity," a principle that protects government agencies from lawsuits except under certain very narrow exceptions.
When I first started writing about Betz's suit two years ago, I said I didn't understand why DART didn't just settle with him and his fellow plaintiffs, who are mainly Hispanic families with modest incomes. But I also know that's easy to say. Some people think government agencies are easy targets for settlements, so there's something to be said for an agency that stoutly defends its coffers.
Morgan Lyons, spokesman for DART, confirmed last week that DART is going to pay Betz and the people on Alcalde the full settlement ordered by the judge after a jury found DART at fault.
I'm not neutral. I am thrilled that Betz won, and I think Ankele is one hell of a smart lawyer. But for me there's a bigger and deeper story—the water. And that one's not just about DART. It's about all of us.
We don't get water any more. We don't understand how water works. We think we have escaped Nature. But have we escaped rain?
City Hall is talking about abandoning major storm-water construction projects approved by the voters in 2006 and using the money instead to fix the levees along the Trinity River. But that will only exacerbate flood issues elsewhere in the city.
Betz, meanwhile, worries that DART is not correcting the flooding problem at its garage and that lives may be lost there in future floods.
I think Roscoe Betz understands flooding—gets it—in part because he's smart, but also because he's 91 years old. He grew up in a world where people could see the water around them.
We can't see it. For the most part we don't get it, even though Nature takes us back to school, again and again. But one way or another, we will learn the lesson. Eventually water goes where it wants to go. Every little chance we get, we need to get out of its way.
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