What Can the Board of Adjustment Do About Elm Thicket’s Erroneously-Issued Building Permits?

When it comes to erroneously issued building permits in Dallas’ Elm Thicket/Northpark neighborhood and the subsequent “stop work orders,” many are shouting for five volunteer officials who sit on the Board of Adjustment’s Panel A to “do the right thing.” But it would appear they have differing opinions on what the right thing is. 

The City of Dallas’ Planning and Development Department issued 14 stop work orders in late July, notifying builders in the Dallas Love Field neighborhood that their projects did not comply with updated zoning passed nearly two years ago — city-issued permit or not.

Builders Adjust or Appeal

The new zoning changes govern things like roof construction, height, and lot coverage — so builders and their advocates say their infractions are minor, but the cost to tear down and start over as the city has suggested could put them out of business. While some of the builders have adjusted their plans to come into compliance, two are appealing the stop work orders before city hall’s Board of Adjustment.

Elm Thicket Builders Plead With Dallas to Revoke Stop Work Orders For Projects the City Erroneously Permitted 

‘The Responsibility of Builders to Know the Deed Restrictions’

It’s clear that the City of Dallas is at fault for approving the plans and issuing permits based on their own outdated zoning information. But Assistant City Attorney Justin Roy has pointed to a code statute dictating that, regardless of whether permits are issued, the builder is responsible for knowing the zoning on the lot where he’s building. 

Elm Thicket builder Lou Olerio told CandysDirt.com last week that he knew about the zoning change and pulled his permits before it became effective so his projects would be grandfathered in. 

“The Elm Thicket overlay went into effect October 13, 2022,” Olerio said. “It was a very well-publicized decision by the Dallas City Council. While there is some culpability of the city issuing permits, it is also the responsibility of builders and developers to know the deed restrictions and code requirements when building. I have over 12 projects currently going vertical in the area and none are in breach of the overlay.”

Investigations Underway

An Aug. 23 memorandum from Interim Assistant City Manager Robin Bentley notes that the City has investigated 169 sites in the neighborhood. Twenty-nine are still under investigation; six were found non-compliant. 

Builders for four of those six non-compliant sites filed an addendum to come into compliance. The addendums are under expedited review. Two permits were revoked, with appeals scheduled in September. 

One appeal went before the Board of Adjustment last week, but builder Akber Meghani asked for a decision to be postponed to October when the City’s investigation will be complete. The Board of Adjustment meets just once a month and declined the lengthy extension, saying a decision must be made legally within 60 days of the appeal being filed.

Meghani’s appeal for his property at 6801 Tyree St. will be heard Sept. 17 before Panel A; a separate appeal for builder Danny Le’s build at 6529 Victoria Ave. is scheduled to go before a different panel the following day. Meghani is also asking for permit fees to be reimbursed. Forty-one letters of opposition were filed against Meghani’s request. 

Watch the Aug. 20 Board of Adjustment meeting. A city webpage devoted to Elm Thicket/Northpark updates went live last week. 

What Is the Board of Adjustment?

When we heard that at least two of the Elm Thicket cases would be going before the Board of Adjustment, we wanted to understand what this board is and what they do. We tuned into the Aug. 20 meeting and it was even more “in the weeds” than a typically uber-technical Zoning Ordinance Advisory Committee — a committee that probably needs explaining, too.

The Board of Adjustment often hears from homeowners who have made an unpermitted upgrade and are asking for forgiveness in the form of a variance. In last week’s meeting, we heard detailed discussions about fences, setbacks, and trees. 

Fifteen board members and three alternates are appointed by the Dallas City Council and receive no financial compensation. Five members serve on one of three panels.  

Former District 1 Councilman Dave Neumann chairs Panel A. 

We reached out to Neumann and he declined to comment on the Elm Thicket situation, saying he could not discuss any case pending before the Board. When asked if he could speak in generic terms about the duties of the Board, he referred us to the website. 

What Can They Do?

With reference to Elm Thicket’s permit debacle in that meeting, Neumann clarified that the evidence considered by the Board “is based on what the applicant appeals in the hearing process.” Following the public hearing, a building official can defend the action taken that prompted the appeal — in this case, the stop work order. 

“The standard for appeal is to determine whether the building official erred, in this case by revoking a permit,” Neumann said. 

Board of Adjustment members asked for clarity on what they can do with such an appeal. An assistant city attorney explained that they can affirm, reverse, or amend the action. 

Neumann simplified it: “We can agree, disagree, or modify the order,” he said. 

In order to reverse the building official’s decision, four out of five Board members must vote for it. 

It was clear from last week’s meeting that Board of Adjustment members take their responsibilities seriously and give thoughtful consideration to the cases before them. Member Nick Brooks balked at Meghani’s request to delay a decision to September.

“A lot of people put a lot of time into preparing to be here,” he said at the Aug. 20 meeting. “Members of the neighborhood association have taken four or five hours out of their day, and it’s difficult to ask them to do that again. I don’t know what’s going to be accomplished in the next month, what likelihood there is in the city resolving this issue to everyone’s satisfaction.”

What’s the ‘Right Thing?’

Several speakers at last week’s hearing urged the Board to “do the right thing.”

Real estate broker Clay Stapp said he attended to “protect Mr. Meghani and his interests in trying to build a duplex that he was permitted [to build] by the City of Dallas.” 

“You guys are here to hopefully make the right decision,” Stapp said. “This is a case where the city has got to do the right thing. They did the wrong thing by putting the stop work order out and stopping construction. Now you guys have the opportunity to do the right thing and make things right for Mr. Meghani. If he’s required to stop, there’s a catastrophic impact on his business and it will end his business.” 

Stapp further stressed that the “punishment did not fit the crime.”

 “If you’re going to ask him to tear down a building that’s already constructed for being 1 foot above the maximum height or having 45% lot coverage instead of 40%, how does that punishment fit the crime?” Stapp asked. “We’re talking about 300 square feet on a 6,000-square-foot lot. It’s nothing; it’s minimal. So you’re going to put a man out of business because the city made a mistake. It just doesn’t match up.” 

Alan Hoffmann on Elm Thicket Permitting Debacle: Does Dallas Need to be Known For This?

Zac Thompson, a lifelong Elm Thicket resident, said the stop work order on Tyree Street was appropriate. 

“As a builder in another city, you have to take on responsibility,” he said. “The builder needs to take responsibility and tear the house down. We have fought long and hard in Elm Thicket/Northpark to maintain a historic district … I refuse to accept in 2024 that the City of Dallas is still oppressing us in Elm Thicket/Northpark.”

In the case of Akber Meghani, there’s a question of whether he knew about the zoning changes in this Planned Development District 67 and tried to “pull a fast one” by circumventing the rules and asking for a permit. The neighbors say that’s a “self-inflicted harm,” and therefore he doesn’t meet the criteria for the Board of Adjustment to even consider dismissing the stop work order. 

Elm Thicket/Northpark resident Kimberly Sims said residents fought for seven years to change the zoning and protect the character of their neighborhood.  

“It is my hope today that you all will do the right thing and deny this appeal until the city has a chance to come to some sort of resolution about how we move forward,” Sims said. 

Streamlining Elm Thicket Cases

Planning and Development Assistant Director Jason Pool said last week the department is recommending that the Board of Adjustment streamline appeals to “ensure fairness and consistency in the resolution of cases arising from previous city oversights” in Elm Thicket/Northpark.

“The city has recently identified a number of oversights in the permitting process following the adoption of the new zoning regulations for PD67 on Oct. 12, 2022,” Pool said. “These oversights have led to cases being brought before the Board and may result in future cases, all related to the same underlying issue of outdated zoning information being used during permit evaluations.” 

The Board may wish to consider temporarily suspending its current rules on case assignment for the related cases, Pool said, noting that the benefits of doing so would include consistency, fairness, efficiency in case management, and restoring public confidence. 

“We believe that the Board’s consideration of this option may provide a fair and effective pathway for resolving the cases arising from the City’s oversights in PD67,” Pool said. “Should the Board find this option viable it could play a crucial role in ensuring a consistent and equitable resolution for all affected parties.” 

The Board of Adjustment did not discuss or consider adopting Pool’s recommendation.