Given the recent controversy around the Aldredge House on Swiss Avenue in East Dallas, I thought I might share my thoughts and experiences after 10 years of service on the City of Dallas Board of Adjustment. The Board of Adjustment was part of the Aldredge House story, as it was the venue for hearing the arguments from those for and against its non-conforming status and whether that status adversely affected neighboring properties.
The Board of Adjustment is made up of 15 citizen volunteers. Each City Council member and the mayor each appoint one member, who can serve a maximum of four two-year terms (but there are situations where a member can be in holdover status and serve longer, as I did).The 15 member board is then divided into three separate panels of five members each. Each panel meets once a month for 10 months of the year (no meetings July or December) from approximately 10:30 a.m. until 3:00 p.m., unless there is a sparse agenda or a controversial case, which would result in a shorter or longer meeting, respectively. Board members receive a copy of the agenda and all documents pertaining to the case several days before each meeting to review on their own time at their pace. The panel is briefed on each case by the staff before lunch, breaks at noon for lunch provided by the city, and then hears each case again, this time with public input, beginning at 1 p.m.
Almost all cases at the Board of Adjustment revolve around a real estate issue but, unlike the Plan Commission or City Council, the Board of Adjustment normally doesn’t make decisions about land use. If a property owner wants to rezone a property from a single-family residential use to a multi-family residential use or from office to retail, the owner makes his or her case to the Plan Commission. The Board of Adjustment generally decides issues around development standards in the different zoning categories. If a property is zoned for office but limits the height of structures and the owner wants to build higher than the limitation, the owner makes an appeal to the Board of Adjustment. If there is a minimum parking requirement in the zoning category and the owner can’t fit the required parking on the site, they can bring their case to the Board of Adjustment. And so on and so on.
Ok, enough with the civics lesson, here is what I experienced “on the ground.”
- Even though we received the agenda in advance and knew the addresses of each case, we were discouraged from ever reviewing the properties in person. One might think that a property visit would help a board member make a more informed decision, but city staff felt that since there was no requirement to visit the property and most members didn’t, the morning briefing, which included property photos taken by staff, gave everybody equal footing to determine a fair outcome.
- The most re-occurring issue we faced was fence heights. In most single-family zoning categories, the City of Dallas development code limits fence heights in front-yard setbacks to 4 feet. Drive down many streets in Preston Hollow where the tear down phenomena got it its start in Dallas and you will see one newly built mansion next to another. And what’s a sparkling 8,000-square-foot estate home without a big tall fence and even bigger taller gate between the home and the street? If it’s in the front-yard setback, every one of these fences received a variance from the board to build the fence higher than 4-feet.
- I quickly developed a reputation on my panel as the guy who hated high fences. The primary standard we had to apply when deciding fence height variances was: did the increase in height “adversely affect neighboring properties.” I feel strongly that the 4-foot height limitation for front-yard fences helps establish open space in neighborhoods and insures a sense of community. If Dallas becomes a city of tall fences in front yards, we will lose all sense of neighborhood and community and support and relationships and that over time, yes, tall fences in front yards will adversely affect neighboring properties. I spoke passionately about this at many meetings and I’m sure the other board members got tired of hearing it.
- The zoning consultants in town and the Board of Adjustment members reached an uneasy, unspoken truce over this issue. I can’t remember a front yard fence over 7-feet ever being approved (up to 8-feet where the gate was located) and never were the fences entirely opaque. If a fence over 4-feet was approved, it was always constructed of wrought iron pickets so neighbors could still see neighbors and front lawns were exposed to the street. Some new homeowners were upset they couldn’t build tall, nontransparent fences to keep the rest of the world away from their multi-million dollar estates. I had no sympathy and argued for open space and welcoming front doors and a spirit of community along our streets.
- To bolster their chances of success, property owners would generate letters of support from surrounding neighbors and neighborhood associations. When the fulcrum of the decision rests on whether granting a variance would “adversely affect neighboring properties,” these letters of support can have substantial impact. Same goes for the letters in opposition to a variance request. But what if a property owner’s immediate neighbors are in favor of the request, but the neighborhood association opposes it? Our panel had a few of these cases and generates a dilemma. If the standard for deciding whether to grant a variance is “adversely affecting neighboring property” and the closest neighbor is just fine with it, shouldn’t that be the threshold for approval? But are there larger more important issues that the entire neighborhood must consider? How should a board member weigh the contradictions of neighbors who believe a variance request is OK, maybe even an improvement, and a community of homes that want to make sure the snowball doesn’t start rolling downhill?
- Unlike calling your City Council or Planning Commission member, it is illegal to lobby Board of Adjustment members before or after a case hearing. They call it “quasi-judicial.” Appealing a decision can only be made through the courts. Occasionally I would get a call from a friend or acquaintance that didn’t know the rules and wanted to discuss a case. I quickly reviewed the rules with them. Only twice in in my term do I remember a City Council person in attendance at a board meeting. They were both non-conforming cases in Dwaine Caraway’s council district and he appeared in support of the neighbors. He didn’t speak but his presence was obvious.
- The case of the Aldredge House brought back memories of the case that was the most difficult decision I had to consider during my term on the board. When a municipality reviews old and outdated zoning plans or assesses long range plans for future growth, changes in zoning maps inevitably happen. If a piece of property was zoned for a certain use and then a new zoning map changes the current use, the current use becomes “grandfathered,” or in zoning parlance it becomes “non-conforming.” Any citizen of Dallas can bring a non-conforming case to the Board of Adjustment if that citizen believes continuation of the non-conforming use “adversely affects neighboring properties.” Early in my service, a citizen brought to the board the non-conforming use of a mobile home park on Highland Road, just east of the railroad tracks and south of the Forest Hills neighborhood. At one time, the mobile home park had been an approved use, but a later change in the zoning map by the City of Dallas made the mobile home park a non-conforming use. The adjacent neighbors believed it adversely affected neighboring properties. It had the potential to be a politically charged case, as the residents of the mobile homes were poorer than the surrounding neighbors. I think the city recognized that and for the first and only time in my tenure, the members of the board were loaded onto a bus to see the site in person. The mobile home owners generally owned their homes and rented the small lot on which it sat. The owner of the park resided out of town and clearly did nothing to improve or maintain or monitor the park, because what we saw was very troubling. Jack-legged electric lines, cardboard and plywood additions, and other unpermitted and illegal work became apparent. It seemed unsafe. The members of the community came to the hearing and pleaded their case citing cheap rent, a tough economy, fixed incomes and disabilities. It was a gut-wrenching decision, but the board voted that the non-conforming mobile home use was adversely affecting neighborhood properties and the residents eventually had to relocate. As tough as it might sound, illegal electrical work, construction without a permit and unlawful dumping just can’t be allowed, no matter the socioeconomic class of the neighborhood residents.
My thanks to Gary Griffith who originally appointed me, and to Sheffie Kadane who reappointed me after he took office. I was continually impressed with the quality of work done by city staff members Steve Long, Trena Law and Todd Duerksen. I will miss seeing them every month. I enjoyed my 10 years of service and hope, in some small way, that I made a difference in the quality of Dallas developments.
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