After an appeal in the state court, construction can resume on the development at Peak and Swiss in Old East Dallas, according to Jonathan Rector, corporate counsel for Encore Enterprises. He is confident that the construction will be completed as planned.
Encore is the parent company behind the defendant in the case, EMF Swiss Ave. The 253-unit multifamily dwelling at 4217 Swiss Ave. has cost $13.9 million so far, but the city put a stop work order on the project, which had previously been approved for construction. After building began, the Peak’s Addition Homeowner’s Association took the city to state court, arguing that the development violated the residential proximity slope (RPS) for the area, meaning the building was too tall for how close it was to the street. The state court ruled in favor of the homeowners, and the city subsequently put a stop work order on the unfinished property.
EMF is still appealing the state court’s decision that the permit should not have been issued, but they also used a mechanism called supersedes security, where a defendant pays a bond to delay a judgment (specifically the stop-work order) until the appeal process is over. The state court agreed to that request, allowing work to begin even though it’s in dispute. If EMF’s appeal fails, the building would be ruled out of compliance and would need to be changed or removed. Rector says he’s confident that the appeal will be successful.
An earlier court decision denied EMF the ability to pay the bond, with City Councilmen Adam Medrano and Philip Kingston joining the homeowners’ team. They argued that it would be unwise to allow construction to continue on a building that may have to come down in the future, but the latest decision has overturned that ruling.
EMF also brought the case to the federal court, but it ruled that it didn’t have jurisdiction to rule on a case that is currently in the appeal process at the state level. The appeal is still underway, but no timeline has been set on when the ruling about the legality of the original permit will come down. Rector says if the judge sides with the homeowners again, they will continue to appeal the decision to the Supreme Court of Texas.
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