Question: What can stand 8 feet in the air and be underground?
Answer: A Dallas parking garage.
That is, if the city’s building inspectors are doing the measuring.
The city’s methodology, used to grant permission for the construction of three million-dollar homes in the Uptown area of Dallas, is at issue in a lawsuit filed by neighbors.
They contend that the multistory homes violate height limits and setback requirements in the city zoning code.
The architect who designed the homes and the inspector who approved them say the buildings’ height and their distance from the street were figured not from the sidewalk but from the top of their ground-floor garages, which stand 8 feet tall.
The garages, they said, are not counted as part of the structure and are “below grade.”
That left many scratching their heads.
Applied citywide, such an interpretation would effectively gut restrictions on how tall buildings are or how much they crowd the street, said architect Jim Sealy, a zoning consultant who may testify for the neighbors.
“We need to throw away the zoning ordinance,” he said. “I can now realistically say to my clients, ‘Hey, guys, ignore setbacks.”‘
The inspector who issued the building permits, Ed Simons, said such fears are overblown. In the wake of this case, “we have clarified what grade is,” he said.
The builder insists that the project does not violate the law.
“It complied when it was designed; it complied when it was permitted, and it complies today,” said architect Jack Irwin, who designed the homes for developer Richard Finlay.
The problem is that “the adjoining property owners have a different interpretation,” he said.
So did at least one Dallas judge. After a hearing in December, County Court at Law Judge David Gibson found that the building permits for the houses, on North Hall Street and Oak Grove Avenue, were “issued … in clear violation of Dallas city ordinance.”
At the hearing, he questioned the implications of Simons’ action.
“What’s to prevent the city from permitting a seven-story parking garage and then a building on top of it?” he asked the inspector.
However, the judge ruled that he had no jurisdiction in the matter, because the neighbors had not exhausted their appeals to a city zoning board.
The plaintiffs later convinced another judge that the court has jurisdiction. In that ruling, County Court at Law Judge Bob Jenevein wrote that the law leaves no room for interpretation on matters such as setbacks.
“Rather, the alleged violations, in general, are objectively measurable,” he wrote.
“To allow the city to claim, for example, that a violation of setback requirements is a matter of interpretation would render any ordinance meaningless.”
A new hearing is set for next month.
But in the meantime, the houses have been built. A sign out front advertises them for sale at prices from $980,000 to nearly $1.5 million.
At this point, there’s only one solution, said the plaintiffs’ lawyer, Karen Gammon:
“They need to be torn down, period.”
Art Anderson, Finlay’s attorney, called that unrealistic.
He noted that the property is zoned for commercial as well as residential development, so his client could have built an office building much taller than the three homes.
“I hate to say, `Where’s the harm?’ But the underlying zoning permits much more intense development,” he said.
That’s irrelevant, Gammon said. Finlay chose to build houses, and he should be required to comply with the zoning governing houses.
“I don’t care if you could build a cement dinosaur farm on that property,” she said.
The first inkling of the dispute came a year ago, when owners of nearby properties received notice of a hearing to consider Finlay’s application for a variance from the 48-foot height restriction governing residences in the neighborhood.
Among the property owners were Ed Bennett and Joel Sanders, both architects, and Claude Albritton, owner of the McKinney Avenue Contemporary, an art gallery and theater.
They would later file suit against the project.
