Out on a Limb
The worn planks that make up Gareth and Bram's tree house rest in the tangled branches of an old Chinese tallow. A few steps affixed to the trunk lead to what looks like an old crate. A static line enables the kids to glide airborne from tree to house.
With the tree house vacant while the kids frolic at summer camp, it looks almost lonely.
Donna Kohlhausen, an attorney and the kids' mother, admits that it isn't very pretty, there above the curbside easement beyond the front lawn. She admits that one of the supporting branches hangs a little too low over the sidewalk; someone about six-two might even have to duck when walking underneath. But she says matter-of-factly, "My kids love the tree house."
Two blocks away in this upper-middle-class Memorial Park area is a more attractive tree house frequented by the two children of Bob and Dianne Josephs. This one about ten feet high, with an adjoining swing that hangs close to the ground is located on the town-house complex, just outside the unit where the Josephs family lives.
For a few years, the children of the families cavorted in these peaceful aerial playgrounds. But 13 months ago, the fight began with an unlikely nemesis: the City of Houston. Inspectors began issuing notices demanding that the tree houses be torn down. The battle has taken one family to municipal court. As the city escalated its attacks, even City Attorney Anthony Hall joined the fray. The families have now sued the city in state district court.
"I'm going to fight for what I believe in," vows Dianne Josephs, who is mystified that the city has gone to such extremes to obliterate the kids' outdoor hangout.
To Jim Bartley, there is no mystery about the great municipal tree-house offensive. This middle-aged owner of a small business moved into the Josephses' town-house complex about two and a half years ago. He soon was complaining about the tree houses to the neighborhood association.
He cites concerns about the safety of kids playing in them, as well as fears that "if someone fell, the taxpayers would be liable."
"It's not about tree houses, it's about children," Bartley says.
However, neighbors say Bartley refers to the structures as "tree shacks" and says they devalue the neighborhood its character and its property. Neither of the tree houses is visible from his town house, which faces Memorial Park Elementary School.
In May 1998 Bartley turned his ire to the city, repeating his complaints that the tree houses were ugly and dangerous.
Two months later, the Josephses saw an envelope-size red tag attached to the tree house. It was the city's way of notifying them that they were encroaching on municipal property. "Failure to remove tree house off of city right of way," the citation read.
For Bob Josephs, it was a call to arms. He challenged the ticket in municipal court and invoked his right to be heard by a jury. But before the case went to trial, Josephs says, the assistant city attorney told him the case was too minor for the city to bother with. It was dismissed. "She said, 'I'm not gonna prosecute this case!' " says Josephs with a laugh.
With that, Josephs says, he was sure that the dispute was dead, that the family had fought for their rights and won.
But a few days after the December dismissal, they found out they were wrong. There on the tree house was a bright red tag, a citation by the Houston code enforcement division waiting for them.
At least this time their misery had company. The Kohlhausen family also had their tree house ticketed. Donna Kohlhausen wrote a letter in response, explaining that Bob Josephs had just been to court, and the tickets were dropped.
Last month the now-familiar scarlet decorations were back on the tree houses. These tickets came courtesy of the city's neighborhood protection division. Kohlhausen sent another letter of explanation. But this time, the city's retort was that they should remove the tree houses immediately.
Unbeknownst to the two families, higher municipal maneuvers had been in the works. Bartley's complaints to At-Large Councilwoman Annise Parker had prompted her to request a legal opinion on the issue. City Attorney Anthony Hall found that the tree houses constituted an "attractive nuisance." In other words: Kids could fall off them. That opinion gave the neighborhood protection division authority to sidestep court action and just tear them down.
Late last month Donna Kohlhausen acted before any demolition teams could. On behalf of the two families, she sued the city to try to save the tree houses.
Kohlhausen attorney Rand Mintzer alleges the city denied the families due process, that they should have been entitled to a trial to decide if the tree houses stay or go. His client is confident most every jury would side with the kids.
Bea Link, deputy director of the neighborhood protection division, says the city is justified in continuing its pursuit of the nuisance. She notes that the first case against the Josephs family was dismissed. If the Josephses had gained an acquittal instead, that might have trumped the city attorney's legal opinion, Link says.
The lawsuit points out that in January the city code division inspected the two families' properties and found no building code violations. The lawsuit alleges that the families were having a "file" built against them, a contrived measure designed to harass them.
Kohlhausen gained a temporary restraining order, and both sides are negotiating. If no agreement is reached, the case will advance to trial in state district court.
Bartley says he first heard about the lawsuit last week, after returning home from a vacation. "If you have a child and you're fighting it, you're teaching your child to break city laws," he says incredulously.
But the two couples are equally incredulous in raising this plea: Doesn't the city have anything better to do with its time?
Parker scoffs at that allegation. Bartley responds by saying he has met the councilmember, but "if Annise Parker walked down the street, she wouldn't know who I was."
Citizens should get action on their complaints, Parker says. She explains that she got involved in the dispute because she models herself as a champion of neighborhood concerns.
As for applying pressure on city staff, "We're not pushing it, and we're not not-pushing it," Parker says.
Link says it is common for councilmembers to call about right-of-way obstructions such as basketball hoops and trash cans.
Link believes it is important that the tree houses be capsized as the city wishes. She says that if these two families circumvent the laws against encroachments, others violators could follow.
"Bea Link seems dead set on taking them down," says Mintzer, the Kohlhausens' attorney. "Who knows who's connected to who?"
"I enforce the laws; I don't make them," Link responds. "I deal with hundreds of complaints on a daily basis."
Meanwhile, a genuine grassroots campaign is under way on the Josephses' lawn. Attached to the base of the tree that holds the kids' house is a slab of poster board. It reads, "please help save our tree house." At the bottom is a solicitation: "if you are on our side sign here." There are the names of patrons and passersby alike. Bobby. Steve. Suzie. Matty. Taylor.
Above it is the tree house and its slabs of pine surrounded by a three-foot-high tennis net. The view from the corner takes in a kiddie park and the elementary school. It seems the old people are outnumbered in this 'hood.
"These guys are so concerned about safety?" asks Dianne Josephs. "That's why we put the netting up. That's why we don't leave the ladder out. We're out there to supervise."
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