Dallas greenlit the construction of an upper East Dallas duplex townhome. Then the city said it was too tall. Now the Texas Supreme Court must decide whether the completed house can stand 鈥� or whether builders must demolish it and rebuild to fit city standards.
Dallas District Court Judge Eric Moy茅 sided with McKinney-based property developer Phillip D. Thompson in a 2022 ruling. The judge ruled the plaintiffs, Thompson鈥檚 corporations PDT Holdings and Phillip Thompson Custom Homes, did not have to follow a stop work order the city of Dallas issued six months into the home鈥檚 construction 鈥� after the city had already approved the company鈥檚 building permit requests.
But the Fifth Court of Appeals reversed that. Justices ruled the city鈥檚 mistake wasn鈥檛 intentional, and builders could have gotten up to speed on the ordinance and avoided violating it themselves.
Christopher Kratovil, Thompson鈥檚 attorney, said builders acted in good faith throughout every step of the process. He will now argue for the lower court鈥檚 original ruling to be reinstated so Thompson鈥檚 company can avoid demolishing the now-complete but vacant home to fix the 10-foot difference.
鈥淲e're talking about tearing it down because it's marginally too high," Kratovil said. "That's absurd. That's a waste of resources. And it makes the city of Dallas look like a place where no one would want to build and no one would want to do business."
The case is set for oral arguments in front of the high court Jan. 15. A City of Dallas spokesperson said the city has no comment due to the pending litigation.
The city of Dallas approved a request from PDT Holdings around September 2017 to build the three-story duplex townhome that would reach a maximum height of 36 feet. Two buyers signed a contract to purchase the home in November.
That month, a city code enforcement field inspector told the developer that the house wasn鈥檛 in compliance with the general 36-foot height limit for that area because of a parapet wall on the roof. PDT disagreed with the measurement, but construction continued through January 2018 while the city and the company discussed the height issue.
The issue was fixed, and even though the inspector found that building features on the second floor were out of compliance, PDT continued with construction, according to court records.
It wasn鈥檛 until April 2018, when the construction on the duplex townhome was near completion, that the city issued a stop work order after a resident complained because the home wasn鈥檛 in compliance with a different height requirement 鈥� the ordinance. If a building in certain planned developments is taller than 26 feet, it cannot be taller than a specific slanted height measured from the ground upward and outward, according to the ordinance.
Thompson asked the city鈥檚 Board of Adjustment for an exception to the zoning rule three times 鈥� it was after the second attempt that Thompson sued Dallas and the board.
The townhome at issue is fully built. Kratovil said builders would have to do a complete demolition in order to adjust its height. The property is currently valued at nearly $1.6 million, according to Dallas County Appraisal District records.
The home also can't be sold or get a certificate of occupancy until this dispute is over, Kratovil said.
Moy茅鈥檚 ruling prevented the city from enforcing the ordinance. But the Fifth Court of Appeals reversed that ruling and sided with the city of Dallas in 2023.
It reasoned that a municipality like Dallas can only be 鈥渆stopped鈥� from enforcing the ordinance 鈥� that is, prevented from enforcing the 26-foot height limit because it contradicts the city's initial approval of the building permit 鈥� in very limited circumstances so that the government can properly enforce the law. And this case, the appeals court ruled, wasn鈥檛 one of those circumstances.
The plaintiffs argue justices took it upon themselves to retry the case in violation of proper legal procedure 鈥� specifically because Dallas didn鈥檛 ask for the findings of fact and conclusions of law, a document explaining why the district court judge ruled the way he did.
鈥淏y failing to request findings of fact and conclusions of law, the city of Dallas never learned the basis for Judge Moy茅鈥檚 ruling and therefore must challenge and must overcome any hypothetical basis for that ruling that could be supported in the record from the trial court,鈥� Kratovil said. 鈥淭hey didn't do that.鈥�
In court documents, the city concedes its staff overlooked the RPS ordinance when approving PDT鈥檚 permit 鈥� but city attorneys say the company was also at fault for not doing its due diligence and properly researching city rules. The city urges the Texas Supreme Court to uphold the appeals court鈥檚 ruling that the government is generally immune from estoppel, and that the plaintiffs haven鈥檛 proved an exception.
City attorneys say while the Fifth Court of Appeals can assume all the evidence in the case supports the trial judge鈥檚 ruling, justices must still evaluate whether those findings are legally or factually valid. Dallas also urged the high court to think about the effect a ruling in PDT鈥檚 favor could have on residents, who the city says 鈥渃ame out in force鈥� to Board of Adjustment meetings to oppose the board making an exception for the townhome.
鈥淣either party before the Court is entirely blameless,鈥� the city鈥檚 brief to the Texas Supreme Court reads. 鈥淭he City has acknowledged that it issued PDT鈥檚 initial building permit in error. But PDT bears responsibility in not identifying the RPS ordinance at any point in the seventeen months between purchasing the property and submitting its building plans. Who is blameless, however, is the neighboring property owners, who, through no fault of their own, have a noncompliant structure in their neighborhood.鈥�
The PDT home wasn鈥檛 the only time Dallas mistakenly approved residential project permits and then later issued stop work orders after the buildings were found to be out of compliance, which plaintiffs mentioned in court filings. In an August 2024 memo, assistant city manager Robin Bentley told Dallas City Council members that several permit applications for projects in the Elm Thicket-Northpark neighborhood were approved using outdated zoning information between 2022 and 2023, and permits were incorrectly granted.
Out of 29 sites reviewed in collaboration with the neighborhood advocacy group Save Elm Thicket, 19 were out of compliance. The mistake drew backlash from developers who were faced with
City staff said the newly formed City Action Strike Team would find ways to cut down on these kinds of errors. The Board of Adjustments has restored .
But it was Elm Thicket-Northpark residents who urged the city to crack down on the zoning violations, especially since the city council passed zoning changes to preserve the former freedman鈥檚 town鈥檚 character.
In PDT鈥檚 case, Kratovil said developers still shouldn鈥檛 be ordered to tear down a completed or nearly completed building because of too-late complaints.
鈥淭here's got to be an end point where if the city doesn't catch it in a reasonable amount of time, they've waived the alleged violation,鈥� Kratovil said. 鈥淲e believe that's just a matter of equity, appropriate resource management, common sense and simple justice.鈥�
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