Construction on a development at 4217 Swiss Avenue continues despite the Dallas Board of Adjustment overturning a previous decision to allow construction to continue on the property. The city issued a letter to involved parties saying it would not stop construction unless there is a court order telling them to do so.

The property owner, EMF Swiss Avenue, says it was shut out of the Board of Adjustment proceedings.

Rulings have vacillated over the last several months, as neighbors and city council members battled with the EMF Swiss Avenue’s parent company, Encore Enterprises.

At issue whether the new building violates the residential proximity slope of the historic Peak’s Addition neighborhood. Residential proximity slope, which measures the height of the building relative to its proximity to the edge of the property, is a neighborhood zoning restriction meant to make sure nearby homes aren’t overshadowed by other buildings. The city initially approved the developer’s plan before issuing a stop work order. Developers say they have already invested more than $10 million in the 253-unit dwelling.

Courts initially ruled with the neighborhood association, which sued the city for allowing the construction to begin, but the developer joined the legal battle and was allowed to continue construction via a supersedes bond. When Encore paid the bond, it was able to continue construction while the appeal was made in other courts. The ruling by the Board of Adjustment won’t change the construction plan unless the court says otherwise.

An Encore spokesman noted that the District Court and the Court of Appeals for the Fifth District of Texas determined that construction could resume, “a critical fact that Peak HOA failed to disclose to the Board.” They say the materials they submitted in advance of the hearing were not in the case file and were presented to the Board of Adjustment minutes before the hearing. “In an unprecedented action, the Board declared that the hearing was not a public hearing and refused to allow EMF Swiss Avenue to participate unless called on by Peak HOA or the City of Dallas,” the statement read.

Encore and EMF Swiss Avenue are not giving up. “EMF remains confident that its approved construction drawings are in compliance with city zoning regulations and is taking affirmative steps to ensure that the District Court’s and the Court of Appeals’ orders that construction can continue at 4217 Swiss Avenue are enforced.”

The case is still working its way through the legal system, and construction will continue in the meantime.

The neighborhood association has not responded to a request for a comment.

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