Alley Fighting

A midlevel city attorney's ruling causes months of angst in the Heights over who has the rights to that land behind the back fences

Vanessa and Dr. William Blackstone were eating breakfast in late April when they saw something rather odd out their window. As Vanessa Blackstone recalls: "We saw two people having a conversation in our back yard. The next thing we know, we saw a bulldozer coming through our fence."

They knew their fence extended beyond their property and into an unused alley. However, they believed they had a right to the land marked by their fence. The Blackstones, like many other Heights residents, believed that an April 24, 1997 opinion issued by Senior Assistant City Attorney Don Cheatham (an opinion that was effectively overruled by City Attorney Anthony Hall on July 8 of this year) gave them the right to claim title to unused alleys.

Lambert Arceneaux, whose Allegro Unlimited Inc. is building three homes down the block from the Blackstones, believed he had every right to use the alleyways. Arceneaux, like fellow Heights-area developers Sam Gianukos of Creole Construction, Inc. and Paul Gomberg of Premier Victorian Homes, believed the alleys were public, and could be paved by anyone who wanted to use them.

With no one to arbitrate, the conflict escalated. A couple of weeks later, when Arceneaux attempted to dump approximately 14 tons of limestone intended for paving in the alley, the Blackstones stood behind the truck, preventing him from paving what they believed to be their land. "As I was backing up, I saw two people running from their property," says David Meadows, the dump-truck driver. "They were back there screaming and hollering."

According to Meadows, William Blackstone threatened to shoot Arceneaux. "He told Lambert, 'I ought to go get my gun and shoot you.' He was just irate, screaming and hollering."

Arceneaux also claims that William Blackstone threatened to shoot him. "William was under the truck, and he said, 'I'm going to kill you! I'm going to shoot you!' I said, 'Will, my God! You're a doctor, a giver of life! You're going to kill me over this?' And he said, 'No, probably not.' "

Vanessa Blackstone disagrees, claiming that it was she, not her husband, who mentioned using a gun. "I told him that if I wanted to, I would be in my legal rights to shoot him and, immediately after that, I told him I wouldn't shoot him and didn't have a gun."

The prolonged and emotional legal wrestling match over the ownership of the Heights' alleyways ended July 8 when, at the behest of the mayor and City Council, Hall finally weighed in on the matter. Declaring the alleyways "public," Hall cleared the way for Arceneaux, Gomberg, Gianukos and anyone else with the desire and means to build a road in the alleyways.

Hall's opinion reverses a flip-flop in the city's treatment of the Heights alleyways. Although Stephen Lewis, the real estate division chief in the City Attorney's office, points out that the city never "had a clearly articulated policy" concerning alleys, various city departments, including public works, operated under the assumption that the alleys in the Heights were public property.

"We're not sure what the date was," says Wes Johnson, a spokesman for public works, "but we received a copy of a letter from the legal department that these alleys were private. They just said, we rule this is private property, therefore the jurisdiction was taken away from code-enforcement people."

The letter Johnson is referring to is an April 24, 1997 "interoffice correspondence" signed by Don Cheatham and addressed to Melvin Embry, a deputy building official in the Building Inspector's office. The Cheatham letter stated: "Over the past several years, the department has had occasion to review numerous circumstances involving alleys in the Heights and, in almost all cases, has determined that such alleys were not 'public' alleys." Because the alleys are not public, it continued, "the City only has a limited right to use the surface of such alleys, namely, the right to use or disturb the surface only as necessary to repair, maintain, and/or replace our sewers."

According to Gomberg and Gianukos, public works did not start acting on this memo until almost a year later, on March 13, 1998.

That day, Gomberg, accompanied by Gianukos, asked the Building Inspector's office to tell property owners in the 400 blocks of Cortlandt and Arlington to clear the alley of obstructions, a process known as red-tagging. According to Suzanne Killian, the president of the Houston Heights Association, "very few fences and almost no buildings currently obstruct the alleys" because it is "widely known that the city would 'red-tag' the obstruction to require its removal."

So, the two men expected what they got from Milton Bellville, a supervisor in the Building Inspector's office: According to Gianukos, Bellville said: "Hey, it's a code, it's on the books. And we're going to go out and red-tag them."

Bellville, who had never red-tagged anything in the Heights' alleyways before, never left the building. "We were in our car coming back," recalls Gianukos, "and we almost got back to the Heights and they [the Building Inspector's office] called us back and told us to go back to the city. We went into [building inspector] Tony Balley's office and he said to Paul and I, 'Sorry, we're not going to red-tag. I got a call from Don Cheatham and he said I can't red-tag them.' "

Cheatham's opinion made waves outside the city bureaucracy, as well. Homeowners obstructing the alley with fences and other objects believed, in part, that they were protecting their land. In a notice addressed to "All Heights builders, remodelers, restorers, and people using our alleys for property or garage access," People Against The Alleys (PATA) said it "will supply property owners with the proper documents so that they may adversely possess [claim ownership of] their portion of alley behind their property." PATA claims to have been "advised" of this "right" by Don Cheatham himself.

A lawyer who chooses his words carefully and whose resume includes a stint as the city attorney of Amarillo, Cheatham does not look like a man who could inspire much emotion from complete strangers. "I've seen the man," says Gomberg, "and he's not wearing any capes."

Cheatham has become the builders' scapegoat in this four-month fiasco: Gianukos calls efforts to impede the builders' attempts to open alleyways "the Cheatham phenomenon."

"I'm not done with him," Gianukos says, "Mr. Cheatham is the one who started this whole thing."

The builders have failed, however, to convince City Council that Cheatham did anything wrong. Noting that the builder's depiction of Don Cheatham as a bad guy seemed larger than life, Councilwoman Annise Parker told Cheatham, "You were the Darth Vader of the alleyways."

Unlike the builders, the tight-lipped Cheatham seems eager to forget the confrontation sparked by his three-paragraph memo in 1997. "That was the past, and I'm ready to look forward."

To reach T.R. Coleman, e-mail him at toby_coleman@houstonpress.com.

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