A North Texas builder does not have to tear down a home that’s taller than city of Dallas rules allow after officials mistakenly approved the building permit, the Texas Supreme Court ruled Friday.
While the court's decision doesn't make Dallas' residential proximity slope ordinance unenforceable, it clarifies that in similar cases, Texas cities can be stopped from trying to enforce rules too late.
“Nothing in the record indicates that allowing this single over-height structure to remain would bar future enforcement of the RPS ordinance in other instances or hinder the City’s ability to ensure public safety,” Justice Brett Busby wrote for the court.
Dallas ordered companies Phillip Thompson Custom Homes and PDT Holdings — owned by McKinney developer Phillip Thompson — to stop construction on a three-story Knox-Henderson duplex townhome in 2018. The city had previously approved the developer’s plans showing the home would be 36 feet tall at most, but officials later informed builders the home was too tall because it was subject to the more obscure “residential proximity slope” ordinance, limiting the home’s height to 26 feet.
After failed attempts to get an exemption from the zoning rule, PDT Holdings sued. The builder told the Texas Supreme Court it shouldn’t have to comply with the city’s order — which would require demolishing the home — after being misled about height requirements. The city said the court should still allow officials to enforce the ordinance for the best interest of the neighborhood, despite their mistake.
The high court ruled it would be a "manifest injustice,” or a clear and obviously unjust outcome, to allow the city of Dallas to enforce the ordinance in this unique case.
The decision reinstated a Dallas district court’s judgment siding with Thompson. The city of Dallas did not immediately respond to a request for comment on the ruling.
The home couldn’t obtain a certificate of occupancy while this lawsuit was ongoing, so the home has been empty, plaintiffs’ attorney Christopher Kratovil told KERA News. He now expects the city will clear that final hurdle so the home can be occupied or sold.
“Cities and local governments have a right to enforce their ordinances,” Kratovil said. “However, they have to do so with reasonable promptness, and they can’t come around when a structure is 95% complete, attempting to enforce an ordinance that they’ve never mentioned before.”
The city approved PDT Holdings’ request to build the home in 2017. Two buyers signed a contract to buy the home the following month.
That same month, a city inspector told builders the house didn’t comply with a general 36-foot height limit for the area because of a parapet wall on the roof. Construction continued through 2018 while the city and developer went back and forth on the height issue. Builders later fixed the parapet issue.
But when the home was near complete in April 2018, the city informed PDT Holdings about the RPS ordinance, a 26-foot height limit specific to where the property is located. The only way to make the home 10 feet shorter would be to tear it down, the developer said.
The state’s Fifth Court of Appeals sided with the city upon appeal, ruling officials made an unintentional oversight and the situation wasn’t exceptional enough to prevent the government entity from enforcing one of its rules. An attorney for the city told Texas Supreme Court justices enforcing the ordinance would be in other residents’ best interest as they vocally opposed Thompson’s request for a variance during Board of Adjustment hearings.
The Texas Supreme Court ruled this was, in fact, an exceptional case. The city affirmatively misled builders about height requirements and didn’t inform PDT Holdings about the RPS ordinance quickly enough, the court ruled. Additionally, enforcing the ordinance and requiring destruction of the home would result in permanent loss for PDT Holdings — the home cost over $1 million to build.
“I think the Supreme Court struck the right balance there between the unusual facts and circumstances of this case that make it inequitable for the city to enforce its ordinance versus hypothetical future cases where those same sorts of inequities and injustices are not at play,” Kratovil said.
This case wasn't the first instance of city officials mistakenly approving building permits. The city manager’s office told the Dallas City Council in August 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.
Nineteen out of 29 sites reviewed were out of compliance, and residents sued over some variances the Board of Adjustment granted in the aftermath.
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