All three structures, priced for lower income residents, were built in a FEMA floodplain area without proper permitting from the city of Tyler and Smith County, officials confirmed.
The property is located in the city of Tyler's extraterritorial jurisdiction off County Road 1179, slightly west of Kelly Springfield plant.
The homes, built by Jacky Lee, working as JML Properties, L.P., were originally launched for affordable housing for people whose rent is subsidized by the U.S. Department of Housing and Urban Development.
As of last week, the homes were estimated to be between 75 and 90 percent complete. A concrete slab and some dirt work signals the suggested locations of a fourth or perhaps fifth structure.
BUILDING AT STANDSTILL: Homeowners in Pleasant Retreat Acres took legal action to stop construction of several homes in the subdivision.(Staff Photo By Tom Worner)
Plaintiff attorney Michael Ace said the property's deed restrictions, combined with the low-lying location, doomed the housing project from the get-go.
"We feel very strong about our legal position," Ace said. "We feel this guy is dead wrong."
Lee, the developer, declined to discuss specifics of the lawsuit, the flooding potential or his intentions for the property.
"I'm going to let my attorney do the talking for me," he said. "I don't want to stick my foot in my mouth."
Defense attorney Craig Zips said his client's development options comply with the restrictions attached to his property. He also expressed confidence of prevailing in court.
The land's surveyor, Mark E. Ellis, who works for John Cowan & Associates, declined to discuss the intricacies of the project's location.
"We're just the survey firm," he said. "We're trying to work with Mr. Lee and the city of Tyler to get this project done."
A copy of Ellis' survey reflects approximate flood lines averaging about 250 feet.
The flood line area encompasses roughly 3/4 of the acreage, according to the survey.
DEED DIFFICULTIES
Most of the homes in Pleasant Retreat Acres were built in the 1970s and 80s, although the 120-plus lot development with its rolling hills includes a scattering of newer construction.
Deed restrictions attached to subdivision properties require that there will be only one residential structure and one family on any platted lot - the minimum size being one acre.
Even though the subdivision was platted in 1972, the development was never officially recorded into the county records.
In spite of its age, a single 10.835-acre lot sandwiched between Hill N Dale Road and a creek long remained void of homes and structures.
Ace said the original developer, Raymond D. Payne, now deceased, probably did not build there because of its proximity to the creek and the potential for flooding.
In 1982, the vacant tract was subdivided and sold, records show.
Efforts to develop soon followed. A subsequent owner, who purchased about 3.2 acres of the tract, poured three foundations for homes, but work never progressed past that point.
Eight years would pass before development efforts would resume, court records show.
In February of this year, Lee purchased the 3.2-acre tract and began making plans for his own development.
"He (Lee) decided on his own, without consulting with the property owners, he would put five houses on that land," Ace said. "In March or April, he started building."
Three houses started going up on the three pre-existing foundations, prompting the homeowners association to notify the man the work was improper, records show.
Lee refused to halt his work so roughly 31 families banded together and retained an attorney.
7th Judicial District Judge Kerry Russell responded to the homeowners' contentions by issuing restraining orders and temporary injunctions, bringing Lee's construction project to a standstill.
Homeowners' attorney Ace said his clients are entitled to the protections offered by the restrictive covenants of their properties.
But homebuilder attorney Zips said his client is being unfairly bound by unclear development restrictions assigned to an undocumented subdivision.
A February trial date has been set.
OWNER, RENTER RIGHTS
Officials with both the city of Tyler and Smith County said Lee's housing project was initially described as affordable HUD housing.
His plat application submitted last month to the city of Tyler states the purpose of the development at Pleasant Acres is "to prepare lots for rental property."
According to court documents, all three homes have been leased, based on an expected move-in date of Aug. 20.
In his court filing seeking relief from the injunction defense attorney Zips, said the construction delays are causing hardships for those future tenants, who have already told their prior landlords of their plans to move.
"It is likely these tenants may have no place to live," Zips wrote. "To the extent that the current situation has resulted in any potential hardship to the third party tenants, the blame rests solely with the plaintiffs, not the defendants."
Lee is listed as a participating landlord in the city's HUD Section 8 housing voucher program, which provides federally subsidized rental assistance to qualified low income families, records show.
All properties that house Section 8 participants are subject to occasional inspections to ensure the structures comply with HUD directives of providing safe, decent and affordable housing, said Andy Davis, housing services manager for Tyler Neighborhood Services.
Much of the inspection centers on a home's structural integrity and local health and safety codes, not necessarily where it is located, Davis said.
Properties participating in Tyler's Section 8 program can be located both in and outside the city limits, but only those that comply with applicable city and HUD requirements are deemed acceptable.
Lee has about 10 properties in the Section 8 program, down from about 30 sites from a few years ago, city officials said.
Pleasant Retreat Acres is located in an area identified under federal guidelines as a Desegregated Housing Opportunity area, Tyler officials said.
"That means it's predominantly occupied by whites," Davis said. "The (lease) rates are quite a bit higher for that area."
Current lease rates for a three-bedroom home in a DHO area are $1,138 per month, Davis said, adding, "It's going up in October to $1,172."
As of last week, Lee's three incomplete homes in Pleasant Retreat had not been publicized as Section 8 available, Davis said.
FLOOD ISSUES
Future plans for the structures appear to be changing since the project was launched.
Kelly Clay, plat coordinator for the city of Tyler, said developers in the ETJ are not required to have an approved plat if they plan on maintaining ownership of all lots in a subdivision.
"In this particular situation, he's platting them into lots, trying to conform to the deed restrictions," Clay said, noting only people who plan on selling to individual owners must obtain an approved plat.
Lee is seeking an approved plat of record from the city of Tyler.
As of last week, the home project met the city's definition of being an illegal subdivision, Clay confirmed.
Tyler's Planning and Zoning Commission denied a recommendation last week to approve Lee's plat after learning there were a number of outstanding flooding and development issues.
City staff said Lee needs to provide proof of state-approved water and waste water collection/treatment system, and create road development that complies with guidelines outlined in the Master Street Plan.
Staff also requested flooding-related documentation, including a Flood Insurance Rate map, showing the limits of the FEMA Special Flood Hazard Area (SFHA).
"The SFHA appears to be 250 to 300 feet wide," according to staff documents.
Lee was instructed also to provide drainage improvements or dedicate a minimum 100-foot greenbelt on each side of the defined floodplain limit, not the centerline of the creek.
"People have the misconception that we can fix everything in Zone 2, which is the city's jurisdiction beyond the city limits," Clay said. "If he meets all the comments, it has to be approved by Planning and Zoning, and then it is sent to the county commissioners so it can be recognized and filed with the county as a legal record. We are not involved with the deed restrictions - if the elements of the plat are approved, it has to be approved."
City staff said they are trying to work with Lee to resolve some of the issues.
Smith County engineer Bill Bala and Commissioner JoAnn Fleming both said similar efforts are under way at the county.
But there are limits to the county's authority: There is no zoning in the county and no building permits, officials said.
Bala said the only permit required for county and property in the city's ETJ is a permit confirming a flood study.
"We had a meeting with them and they will provide a base flood elevation" study, said Bala. "They had informed us they would not be bringing in any fill into the floodplain area to use in that area."
Lee was instructed to have a study conducted because "we needed to know how far the water will be ..." Bala said. "The creek feeds a lake off (Texas Highway) 31 and water backs up from it."
The county does not permit residential construction unless there is a modification to the floodplain, Bala said.
Both the city and Smith County have civil remedies in situations where health and safety could be compromised.
With so much growth in outlying areas, Ms. Fleming, the commissioner, said the county is probably due for an overhaul of its ordinances.
"I've been getting a lot of calls," she said. "I want to be responsive to citizens, but the property is in the ETJ. We don't have any zoning authority - we can't go and enforce our subdivision ordinances. This is an issue we have to address."
Jacque Hilburn covers Tyler city government, planning and zoning and the Parks Board. She can be reached at 903.596.6282. e-mail:
This e-mail address is being protected from spam bots, you need JavaScript enabled to view it
http://www.tylerpaper.com/site/news.cfm?newsid=17175365&BRD=1994&PAG=461&dept_id=226369&rfi=6
©Tyler Morning Telegraph 2006