Skirting The Zoning Laws

Dirt skirts. Understand dirt skirts, and you understand the Earth.

Some weeks ago I received e-mails from an esteemed neighbor warning me of an important City Hall issue having to do with "dirt skirts." I wrongly assumed we were talking about our perennial East Dallas problem with prostitutes.

Dirt skirts, as it turns out, are a very inventive way to abuse the city's building and zoning codes. Dirt skirts, in fact, are so crazy, so Rube Goldberg wild and wacky, so over-the-top, that I confess to harboring a certain grudging admiration as I might for someone who had invented a way to get over turnstiles on stilts or a person who had figured out how to defeat airport security by disguising himself as Barbara Bush.

You just gotta hand it to them.

A dirt skirt is a mound of dirt that you pile up next to a new building in order to say that the ground is higher than it really is. Why? you really have to know all that? All right, I'll do my best.

According to the law, you can't build a building taller than 36 feet high in certain areas. When you allow for the roof and foundation and everything, that winds up being a three-story building. But, aha! It can only be 36 feet high from what?

Perhaps you are thinking, "High from the ground, Sherlock." Sure. It's not high from marijuana.

But, aha! Who says where the ground is? Perhaps you are thinking, "Go see a doctor, moron. Everybody knows where the ground is." Sure. It's...the ground.

But, aha! What if you built a thing kind of like a planter box out in front of one wall of the first floor of your building and filled it up with dirt two-thirds of the way up the wall and then you said, "Hey, look! The ground is up here now! So if you measure from the top of the planter box, I still have room in my 36 feet for a fourth floor."

Perhaps you are thinking, "Then you really are an idiot, because no city official would ever fall for something that stupid."

You know what's interesting? That's exactly what the guy who did it thought. Tom Nelson, the developer whose dirt skirt castle on Oram Street in East Dallas is at the center of this controversy, told me he thought it was a stupid idea too, when he first stumbled on it.

"I was like, 'How in the hell can that pass?' I'm like everybody else."

But Nelson had seen large multifamily buildings in Oak Lawn where developers appeared to have used dirt skirts to defeat height limits, allowing them to build entire fourth stories that would otherwise be illegal.

"I hired an architect," Nelson told me, "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."

Let me run this down for you again so far. Nelson wants to build a multifamily building on Oram, where legally he can only go up three stories from the ground. His architect goes out to the building inspection department on Jefferson Avenue in Oak Cliff with plans for a four-story building that has a planter box-type thing out front full of dirt.

The architect argues that the four-story building is still only 36 feet high if you measure from the top of the planter box. Even Nelson, the developer, who has been building houses and apartment buildings in Dallas for more than 30 years, thinks it won't fly.

You and I agree. We assume the building inspection person will roll up the plans in a tube and start thwacking the architect on the snout with it in a Three Stooges routine. But, no! It passes! And now the building is under construction.

Enter, stage right, Jon Estes, who occupies a one-story single-family house with his wife and two small children just across the alley from Dirt Skirt Manor. Estes told me he was looking at the construction site one day with his visiting father, who has construction experience, and his father asked how high the building was going to go.

"I said it could only go up three stories," Estes told me. "And he said, 'I don't know, but that looks like an awful lot of structure going in there for a three-story building.'"

Maybe it was the commercial elevator that helped give it away. Or all the steel. Or all the extra fire escapes. You don't see all that stuff in your typical three-story multifamily building on what used to be a single-family lot.

Estes contacted his city council member, Angela Hunt, whose staff went to the building inspection department and asked what was what. In response, Hunt's staff received an e-mail from Leif Sandburg, the chief of building inspection, who had the following to say (and I quote in part):

"Specifically, some builders are re-grading their projects by adding 8 to 10 feet of dirt at each of the four corners of their structure, effectively allowing them to build an additional story. Coupled with the 36 feet in height already allowed by MF-2(A) zoning, the resulting height (what can appear to be four stories) of the new project can appear to be out of scale with adjacent one- and two-story single-family structures."

OK, maybe you are wondering, "What does he mean, 'appear to be four stories'?"

Yeah. Let's all take up a post here out in front of 6159 Oram, home of the dirt skirts, and do this thing together. Now let's all extend our index fingers and count. Right down there, you have the Earth, the great mothership of our species. Terra firma. Ah, don't we all know and love her. Yes, indeed. The ground is sort of where everything begins.

Now, counting up from there, we see one story. Two stories. Three stories. And, indeed, as Sandburg predicted, we see what appears to be four stories. In fact, unless everybody has just totally taken leave of his senses and we're all living in one big wiggy ward now, it doesn't just appear to be a fourth story. It is a fourth story!

It's a real, live fourth story, in a neighborhood where the law only allows three stories, so as not to blot out the sun from the adjacent residential properties.

I spoke briefly with Sandburg on the phone last week. All too briefly. He wanted me to talk to another city official, David Cossum, whom I did call several times, without response, alas. But this is what I would like to have asked both of them, had either of them been willing to chat:

Lads, what were ye thinkin'? The guy comes in with a drawing of a very tall planter box in front of his building and tells you that the planter box is the ground. The Earth. Our planet. The mother of us all. You surely know the Earth is not a planter box.

You could have told him several things. Nice try. Get outta here. Get a life. What do I look like, a doughnut? But you shouldn't have told him he was right. And you shouldn't have told Jon Estes, the neighbor, that it was all totally legal and that he was only imagining that he saw a fourth floor up there.

I rode around Oak Lawn last week with Neal Emmons, a citizen appointee to the City Plan Commission, who was showing me examples of other larger projects where dirt skirts have been used to get around height restrictions. I asked him what he thought city staff should have told Estes when he came to them looking for protection from a blot-out-the-sun construction project in his backyard.

"They should have said, 'Of course we will protect you, because that is part of the covenant when you pay your taxes,'" Emmons said. "Cities that keep their end of the bargain and protect their citizens have quality of life."

I agree. It would be nice for city staff not to be such total lie-downs for every single person who comes knocking on their door. Every once in a while an ounce of spine would be a nice surprise.

That said, height and density are tough issues. I spoke to Paul Cauduro, director of government relations for the Home Builders Association of Greater Dallas, who pointed out that Dallas recently enacted a citywide plan called "Forward Dallas" calling for greater inner-city densities and walkable neighborhoods. He said that means builders have to be able to get more sellable floor space on the ground.

"If the city of Dallas won't allow this kind of stuff, then Forward Dallas will never go forward," he said.

And I don't really blame Nelson, the developer, for trying a Hail Mary. He told me he used to build neat little houses in East Dallas back when a lot cost him $20,000. Now that he has to pay $200,000 for the same lot, he has to find a way to get a lot more structure on that lot in order to make his numbers come out right side up.

In the weeks ahead, all of this is going to the city council, where the council is going to straighten everything out—a prospect that all parties, no matter what their position or interest, should find thoroughly terrifying.

We would have avoided all of this if the folks down at the building inspection office had just looked at these plans and done what they knew in their hearts they needed to do. Giggle like blushing choir girls and wave goodbye.

But now it goes to council. We will all be wearing dirt hats before this one is over and done with.

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Jim Schutze has been the city columnist for the Dallas Observer since 1998. He has been a recipient of the Association of Alternative Newsweeklies’ national award for best commentary and Lincoln University’s national Unity Award for writing on civil rights and racial issues. In 2011 he was admitted to the Texas Institute of Letters.
Contact: Jim Schutze