Condemning houses with a rough guesstimate
This article is the third installment in an ongoing series examining the City’s process for condemning privately owned buildings. Part one, “Kangaroo court,” which ran April 7, looked at Constitutional due-process issues with the Dangerous Structure Determination Board, which is composed solely of City employees and whose decisions are currently subject to a very limited court review. Part two, “East Side land mine,” April 28, considered the disparity between San Antonio’s historic neighborhoods, where demolitions tend to follow poverty in black and Latino communities. Part four, which will appear later this month after a June 5 community-development summit at Sam Houston High School (get info at sanantonio.gov), promises to look into the City’s plans for revitalizing the hard-hit East Side. You can find the stories online at sacurrent.com.
The sun hadn’t yet come up on the remains of Liz Llanas’s home when the City asked her to sign its death warrant. The fire had started around 11 p.m. June 18, 2008, in her King William bungalow and burned for hours, but the columns on the porch were still intact, as was much of the rest of the building. The house had belonged to her grandmother, who had moved into the neighborhood when the City forced her out of her home as part of the great urban-renewal push of the ’60s, which cleared a large swath of downtown San Antonio’s old neighborhoods, from HemisFair west past El Mercado.
“We lived on San Saba street, where Santa Rosa [Hospital] is. In ’67, ’68, Urban Renewal bought that section. They told her she had to sell it. Something big was supposed to happen,” Llanas said. “It became Santa Rosa’s parking lot is what happened, I think.”
Now, City of San Antonio Dangerous Premises Officer Diana Alameda was telling Llanas this home couldn’t be saved, either, and that Llanas needed to sign the City’s demolition order. Several of Llanas’s friends had come when they heard about the fire, including a doctor with whom the nurse and single mother worked. He asked the officer, “Doesn’t she have a vote?”
“This is where the family gets together for the holidays,” Llanas recalled last week. “I asked if I could take the columns or other parts that didn’t burn.” But the dangerous-premises officer said that wouldn’t be possible. “Because of the way she answered me, it was devastating. There was nothing. It was just dry, just nope, nope, nope.”
“What if I don’t sign?” Llanas asked. It doesn’t matter, Llanas recalls Alameda saying. The City will knock it down it anyway. “So, I refused to sign,” Llanas said.
Later that morning, as bulldozers and a dump truck idled at the street corner, Llanas and her neighbors scrambled to save the home. The late artist Henry Rayburn called the Conservation Society, which found an engineer who certified that the foundation, recently redone, was sound, and that three of the walls were intact; fence it while it was repaired, and it wouldn’t be a danger. Neighbor and architect Jose Garcia DeLara drew up plans for free, and the Conservation Society helped Llanas secure a loan through a national housing nonprofit and donated another $5,000 toward the porch. It took two years to secure all of the permits and complete the restoration, but this spring, Llanas and Garcia received a Historic Preservation Award from the Society. Drive down Cedar Street today and try to guess which house the City was ready to tear down 24 months ago.
Most San Antonians aren’t flanked by the politically persuasive Conservation Society when they’re staring down a City wrecking contractor — assuming they receive notice, and have the temerity and wherewithal to object — and those stories often end not with cheers and awards banquets, but with the sound of a backhoe’s shovel smashing through timber and metal. But Llanas’s story may be typical of another problem with the City of San Antonio’s process for demolishing private property: Critics say that the code-enforcement officers entrusted with inspecting properties lack the training necessary to tell if a building is really structurally unsound, and the record suggests that demolitions are sometimes ordered as a matter of expediency rather than a last resort.
At the May 24 Dangerous Structure Determination Board hearing for the late-’60s Westside home that belongs to Billy Joe Davis, City of San Antonio Senior Building Inspector Ray Herrera stepped up to the podium. He was among the last to speak, following a Dangerous Premises officer, San Antonio Police Detective Scott Poth, Davis, his sister and attorney. Yes, the City was recommending demolition, Herrera said. The building is dilapidated throughout, and, “the smell in the house … we couldn’t stand to be in there for very long.” Then he said something remarkable: “The house can be repaired.” But, he added, it had been in disrepair for so long, he was asking this board of City employees to tear down Davis’s house because he didn’t think Davis would fix it. This despite the subsequent recollection of City electrical inspector Roger Rodriguez, who described Mr. Davis’s attitude as “very cooperative” and who told the board that it was true Davis had been unable to pull a permit to fix the electrical issue because the City had flagged the property pending that day’s hearing. And despite the City code, which states: “If the alleged dangerous building can be feasibly repaired or the condition remedied so that it will no longer exist in violation of the terms of this article, it shall first be ordered remedied or repaired by the hearing officers. Demolition shall be regarded as a remedy of last resort.” This was Mr. Davis’s first appearance before the board.
Maybe the DSDB was as discomfited by Herrera’s frankness as this reporter was, or perhaps they were troubled that the house came under code-enforcement scrutiny because of a vice investigation which relied on a Texas obscenity statute that the Fifth Circuit Court of Appeals has found unconstitutional. [See the May 26 QueQue, online at sacurrent.com.] Perhaps it was his sister’s moving testimony that Davis had been severely depressed after his mother’s death several years ago. Whatever the reason, the board agreed to give Davis strict 30- and 60-day repair-and-compliance goals rather than demolish his home.
The City Code, relying on state authority, allows the City to raze homes that have “been subject to repeated criminal enforcement efforts,” “regardless of … structural condition.” The wording is confusing, and one reading could be that the house cannot be demolished for criminal activity if it is occupied by the owner, tenants, or other owner-approved residents. It’s also unclear whether a month-long vice-squad investigation of dubious legal authority qualifies as “repeated criminal enforcement efforts.” According to Deputy City Attorney Joe Nińo, the City’s position is that it can demolish a criminally troubled property without further justification, but in the cases the Current has witnessed where the City is claiming the property is a public nuisance because of crime, it has also argued that the home before the DSDB is in bad physical shape.
That was the case with 114 Kontiki, the Westside home occupied by Robert and Juanita Villarreal that the DSDB put on the chopping block March 8. Nińo told the Current April 6 that the home had received a new hearing when the City realized it had failed to notify one of the property’s lien holders. And in fact, on March 22 the DSDB replaced the original demolition order with a repair order — which we reported April 7 in the first installment in this series. Not long after that story appeared, the Current was contacted by Mrs. Villarreal’s daughter-in-law, who lives in Corpus Christi.
“It was not a happy ending as Mr. Nińo led you to believe,” Katharine Villarreal wrote in an email. “He failed to inform you that a ‘No Trespass’ order was executed, so that my mother-in-law’s two youngest sons are not allowed to even visit her if they want to. I am assuming that he also failed to tell you that the real-estate inspector that we attained to evaluate property said that there was ‘no structural damage’ to the house, like the Code Enforcement Officers led them to believe.”
Juanita Villarreal called her son in tears on March 9, and Katherine Villarreal quickly went to work, tracking down the bank that held the lien, and hiring inspectors to complete an independent review of the home — a one-story red-and-blue house with a wood-and-brick façade and aluminum-frame windows in a working-class neighborhood just south of Lackland Air Force Base. In the video recording of the March 8 hearing, Dangerous Premises Officer Alice Guajardo tells the board that the slab shows possible structural movement, that the flat roof covering is “degraded,” there are large splits along the ceilings and walls, and exposed electrical wiring. Perhaps none of that made as much of an impact as “visible drug paraphernalia,” but it echoes the February 9 and March 10 Officers Report Forms in the file the Current requested from the City.
The slab “needs leveling,” according to those nearly identical documents signed by two different DP officers. The roof is sagging, and the interior sheetrock is water-damaged. The conclusion both times: demolition recommended. The accompanying Officer’s Nuisance Definitions, signed by the same officer who signed the February 9 form, checks off a box that says “The building or structure, or a portion thereof, is manifestly unsafe for the purpose of which it is being used,” with additional check marks in boxes labeled “Exterior walls,” “Roof,” and “Interior walls.”
When the Current visited the neighborhood on a late April afternoon, the street was quiet, and the Villarreals’ home, while not as nicely kept or as well-accessorized as the house across the street where an expensive racing car sat in the fenced driveway, did not appear to be falling down. But don’t take our word for it.
“The property is structurally sound and is not in need of foundation remediation or leveling,” wrote Mark Eberwine of Five Star Home and Termite Inspections in his March 17 report for the Villarreals. The roof is also sound, he said; the worn spots could be repaired. In fact, he concluded, most of the City’s concerns were minor and typical of a home of this age and construction. Eberwine, a past president of the San Antonio Real Estate Inspectors Association and president elect of the Texas Association of Real Estate Inspectors, has also served as an expert witness in construction-defects litigation, and writes a blog for mysanantonio.com. Clearly angered by what he had seen of the City’s paperwork on the property, he threw in a little extra advice:
“What are the credentials of the ‘officer’ who has essentially condemned a viable and structurally sound premises? My suggestion would be to have a news film crew be invited to this address to ferret out exactly how it is that this premises has been essentially condemned by the officer or officers.” The form used by dangerous-premises officers to evaluate a property is “anemic and lends itself to having the city involved in litigation and Department of Justice involvement,” he added. And then: “The majority of the findings in this report are without merit. If the city does not have an engineer on staff to make these findings, and the ‘officer’ makes definitive and incorrect statements as to structural integrity, this lends itself to having the city become involved in litigation.”
The City is, in fact, involved in litigation that questions not only the system the City uses for flagging and condemning buildings, but the qualifications of the individuals who perform that work.
The City’s demolition process is a hybrid system overseen by Housing and Neighborhood Services and, in the case of emergency demolitions, the Department of Planning and Development Services. Emergency demolitions, which do not go before the DSDB, must be approved by Planning Director Rod Sanchez, and he has to get the concurrence of either the Fire Department or Housing and Neighborhood Services Director David Garza.
If someone calls to complain about the state of your fixer-upper or the height of your front “lawn,” on the other hand, Housing and Neighborhood Services sends out one of its compliance officers. If HNSD staff decides to bring it before the Dangerous Structure Determination Board, they must notify the Historic Preservation Office. If HNSD thinks they will recommend demolition to the DSDB, they also bring in Planning, which sends out a building inspector to confirm the Dangerous Premises officer’s conclusions. The building inspector is not required to enter the building to evaluate it, and according to Development Services Manager Michael Constantino, who sits on the DSDB (another conflict of interest, since the board essentially reviews the judgment of inspectors who are also from Planning), they’re no longer supposed to enter even vacant unsecured buildings without a warrant, per the City Attorney’s office. Most of the inspections are conducted from the front or back yard, says Constantino, unless the property is fenced, in which case they view it from outside the enclosed area.
The building inspector’s report is reviewed by a senior building inspector and the chief building inspector then sent to HNSD, where it becomes part of the file that is approved by senior staff and forwarded to the DSDB. Neither the senior nor chief building inspectors are required to follow up an inspector’s demolition recommendation with a visit to the property, although they can at their own initiative choose to do so.
Before a completed file is sent to the DSDB for a hearing, it has been signed off on by Dangerous Premises Supervisor Danny Liguez, HNSD Interim Assistant Director Marc Castro — who reviews the files to make sure all of the required paperwork has been completed — and HNSD Director Garza. (A followup phone call to Castro asking whether Liguez personally re-inspects potential demolitions, and whether DP officers are required to enter buildings to inspect them if possible was not returned by deadline.)
The Dangerous Premises officers who complete the initial HNSD inspections receive 40 hours of training from the Texas Department of State Health Services, and an additional 240 hours of training in the field, according to Castro. They’re also required to take an additional 12 hours of continuing education every two years, which includes an hour’s worth of legal education.
“They’re not engineers,” concedes Castro. “We do give them training, but we rely on Planning and Development Services’ [building inspectors]. They’re out there approving new construction … so we rely on them to concur with our findings.”
None of Planning’s building inspectors — regular, senior, or chief — is a structural engineer (although we’re told there are a few architects on staff), either, but Constantino and Assistant Planning Director Barry Archer emphasize that all inspectors hired since 2005 are required to pass the International Code Council exams for residential and commercial buildings, a demanding and detailed test that mirrors San Antonio’s building code, within a year of their hiring.
“Well, guess what? They don’t have to be an engineer to look at a house that’s being built,” Archer says. “Believe me, before we tear a building down, it’s really not salvageable.”
On April 12, the DSDB considered the proposed demolition of a charming old ice house at the corner of Hackberry and Dashiell, the unique features of which include a pediment with a relief that spells out ICE vertically and horizontally like a Scrabble board. During the Dangerous Premises presentation, the DP officer pointed out large vertical cracks in the wall as one sign of the building’s advanced dilapidation. As it happened, a prospective owner who was there to plead on behalf of the property is an engineer familiar with the board, having testified on behalf of other buildings before. During an executive-session break, the Current asked him about those cracks, which were curiously perfectly plumb. They’re control joints, he said, meant to expand and contract in response to foundation movement. They’re a planned feature of the building, in other words, not a sign of structural trouble. Yet, no one on the board, including Constantino, a former chief building inspector, challenged or questioned the DP officer’s assertion. “I always felt this is just a front,” the engineer said of the DSDB while we awaited their return. “Someone in the background makes the decision.”
Attorney Tyler Rutherford represents Chance Kinnison in his lawsuit against the City for the 2008 emergency demolition of his Tobin Hill dream fixer-upper [see “Sound of the wrecking ball,” April 30, 2008]. Based on his research and depositions, he suspects stories like Kontiki and the Hackberry ice house are the norm, not exceptions.
“What they’re doing is using alleged code violations to destroy houses so they don’t have to send cops up there,” Rutherford said. “They just go in and do what they want.”
During a two-hour deposition of Senior Building Inspector Ramiro Carrillo, who testified that he was certified under the 2003 ICC standards, in October 2009, Rutherford ran through a list of common structural-engineering concepts. Carrillo defines “shear” as “I guess a break of two members.” Asked to contrast shear with flexure, he uses the terms themselves to describe the latter.
What kind of force does a column carry? Rutherford asks.
“I don’t know.”
What does the term ‘buckling capacity’ mean to you?
“Something bends?” Carrillo asks. “I don’t know.”
He’s able to describe a truss, but then he’s back on shaky ground.
What does the term ‘plasticity’ mean?
“No,” he says after a pause.
Do you know what Hooke’s Law is?
Carrillo, who has almost 20 years experience inspecting buildings but no engineering degree, also told Rutherford that he doesn’t use tools in the field beyond a measuring tape, an assertion seconded by Constantino in his interview with the Current. Carrillo said he was unaware of any objective measuring tools for gauging loads or stress.
But Constantino maintains that the conditions that would lead to a demolition recommendation — essentially that a wall, the floors, or ceilings are structurally compromised — can be easily recognized from the exterior or through, say, an open window. “As far as reviewing items that have deteriorated over the years, you can identify and see that it is not correct,” he said. “You can call that out because that’s not the norm.” But he also says that the “inspectors just look at one or two areas that they can see some structural framing [issues].”
Llanas’s case illustrates another area in which even trained eyes might be deceived. Once a house has caught fire, it creates a presumption that it is dangerous, although the City’s guidelines for determining the extent of damage caused by fire are vague. The HNSD Officer’s Report Form includes a line for indicating what percentage, if any, of a home is damaged by fire, but doesn’t require the inspector to elaborate. A second form, the Investigator’s Nuisance Definitions, simply has a box for checking “Fire Damage,” with a percentage sign next to it. The building inspector’s form, the Structure Condition Report, also uses check boxes, one of which is labeled “Fire damaged walls,” without elaboration.
In yet another DSDB lawsuit, Rutherford explained to the Court the wide range of conditions that “fire damage” could describe: “When I cross-examined Carrillo, he says: Well, that could mean stained wood from smoke, or it could mean a completely charred member. So what is that? If you have a structure that has got some smoke staining, that is not structurally significant.”
Or like Llanas, you may have a structure with a great deal more than smoke stains, and still have a building — a home — that could be salvaged.
Constantino points out that the City allows citizens to get the certification of a registered design professional to object to the City’s findings, as Llanas did when her house was in the shadow of the backhoe. “The Code always allows a structural engineer to come over and overrule. … It’s up to the owner how quickly they want to get a structural engineer involved.” He tells the Current structural-engineering reports can be had as cheaply as a few hundred dollars, although the Conservation Society paid $1,500 on Llanas’s behalf for the document that saved her house.
But whatever the price, the burden and cost of proving that the City doesn’t know what it is doing, or isn’t doing it with integrity, is effectively transferred to the homeowner. When Llanas told the Dangerous Premises officer she wouldn’t sign the demolition order, she said the City gave her two-and-a-half hours to get an engineer’s report and a contractor, who had to have a signed agreement with her. “I signed it right there, on top of the car, under stress,” Llanas recalled.
“I was surprised that the code-compliance officer could make that decision. It was just a lady like me.” •
Online next week: What’s an “imminent danger” anyway? “Once you let a municipality get away with this kind of thing, you run into mission creep,” says Rutherford. “To me that’s why you’ve got to nip it in the bud. Otherwise it becomes, ‘Let’s go out and kill your dog because your neighbor said it had rabies.’”
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