No turning back?
The City argues that once a danger, always a danger
“Once [a property is] in the system, there’s a procedure,” Beacon Hill Area Neighborhood Association President Cosima Colvin told the Current as part of this week’s installment in our ongoing Dangerous Structure Determination Board series. “It’s going to move along whether we want it to or not.”
It’s a lesson nearby Tobin Hill knows all too well. Community leaders in the turn-of-the-last-century enclave just north of downtown are rallying to save a house on East Myrtle first tagged for emergency demolition by the City in 2008. Owner Richard Brownlee discovered that the picturesque fixer-upper he had purchased had a date with the bulldozer when a City-hired crew scraped Chance Kinnison’s renovation project across the street. [See “Sound of the wrecking ball,” April 30, 2008.] He engaged an attorney, got a restraining order, and proceeded to fight the City’s determination. The lawsuit is still under way and the City has declined to settle or reconsider, despite a pair of ready buyers who’ve already demonstrated the ability and willingness to spend the cash and time these gorgeous money pits require by renovating the home next door.
“It’s almost like a pissing contest,” says Cody Doege, who along with partner Chad Walling is ready to close now on the house. Doege has called Assistant City Attorney Savita Rai, who oversees the City’s DSDB process, to see what can be done to resolve the suit. Rai sent him to Dangerous Premises Supervisor Danny Liguez, who as of press time hadn’t responded to Doege’s questions. “Quite frankly, I think it’s become very personal, as well.”
It’s certainly personal for Brownlee, who says the property has been devalued by 50 percent because of the demolition order hanging over it. The Myrtle demolitions helped to expose a rash of questionable emergency-demolition orders and prompted some reforms of the system, including closer involvement and oversight by the Office of Historic Preservation, but the City has left 323 E. Myrtle on the chopping block. “The arrogance of these people is beyond comprehension,” Brownlee says.
But in this case there may be an easy explanation for the City’s refusal to negotiate: the amicus brief COSA filed in a Dallas case currently before the Texas Supreme Court. In City of Dallas v. Heather Stewart, attorney Julius Staev argues that citizens have the right to bring a separate takings claim against the government, even when a reviewing court has affirmed the ruling of a dangerous-structures board. His opponents in the Big D insist that when the legislature amended the state’s dangerous-structures statute in 1993 to allow only limited review of the boards’ decisions, they meant to make that avenue of appeal final.
In the Fifth District Court of Appeals opinion that Dallas is challenging, Justice Joseph Morris wrote that the city’s nuisance process didn’t bar Stewart’s takings claim in part because the Constitutional exception that lets government take private property without compensation requires that her structure was “a nuisance on the day it was demolished.” [Emphasis the court’s.] Dallas and its likeminded friends say that if the ruling stands, aggrieved property owners could drag out dangerous-structures demolitions interminably, and municipalities would have to reexamine properties already declared nuisances once any appeals were finished, a burden too hard and expensive to bear. As part of their brief, San Antonio and Houston are arguing that once a property has been ruled a nuisance, the owner loses control of it and cannot make any improvements that could be used to subsequently challenge the board’s finding.
“If the cities were to have their way,” Staev says, “it would literally change the landscape.”
Brownlee has made improvements to the foundation of the Myrtle house, among other repairs, and if the City were to settle with him, the theory goes, they would undermine their own argument.
Tobin Hill Community Association President Carolyn Kelley finds it “very disturbing” that the City would miss an opportunity to let capable homeowners save a structure. “My most immediate concern is that on East Myrtle Street, where you have a great deal of restoration of beautiful houses and buildings that were very blighted, very dilapidated, 323 sits right on the middle of that.” But Kelley, who is contemplating a run for the District 1 council seat being vacated by Mary Alice Cisneros next year, is also concerned by the implication of the argument that “once the City declares a structure ‘unsafe,’ the owner can’t make it safe. For historic districts, this is very alarming. This policy is not a good one.”
Training days : Condemning houses with a rough guesstimate 6/2/2010
No turning back? : The City argues that once a danger, always a danger 4/28/2010
East Side land mine : PART TWO IN A SERIES When the City creates its new land bank, it'll find plenty of capital in Denver Heights 4/28/2010
Kangaroo court : PART ONE IN A SERIES
Meet the City's new extra-Constitutional crime-fighting tool 4/21/2010
Sound of the wrecking ball : Preservation groups say emergency demolitions by the City are increasing 4/30/2008