Urban Dilemma

Smith is up against the wall -- the unfinished one in the background.
Monica Fuentes

Perhaps it was the day lawyer David Theodore Marks found a drunken man sprawled and snoring away amid empty beer cans in his daughter's tree house. Or it could have been the excrement-smeared toilet paper that occasionally flutters across his backyard in west Houston's affluent Saddlewood community.

Then again, the last twig might have snapped when his wife, Colleen, called their little girl to come in from play; they say an anonymous male voice helpfully growled from a nearby thicket: "She's over there."

The 40-year-old attorney had had enough, and resolved to build a barrier to protect his family from the vagaries of vagrants and the unappreciated overnight deposits of illegal roadside dumpers. The Great Wall concept is a security solution as old as China and, as Marks would soon discover, one fraught with unpredictable setbacks, including those of the city building code variety.

His dream homeland covers 2.75 acres of woodland on the east side of Chimney Rock near Memorial Drive, just south of I-10. To repel the unwashed hordes and seal off unapproved access, Marks's barrier would have to be at least 14 feet high, by his reckoning.

A structure that tall would have to be strong enough to withstand winds of more than 100 miles per hour to meet building codes. It would also have to be very close to the street, since the ground quickly slopes downward to a creek bed.

His plan also included additional structural defenses to prevent the crafty homeless from intruding another way: sneaking in from property of the Duchesne Academy of the Sacred Heart on the opposite side of Chimney Rock, then going under a bridge into the creek watershed. Marks estimates the total cost of his municipal Maginot Line at more than $50,000.

Marks purchased the unique piece of urban woodland two years ago. Much of it consists of slopes along the creek that feeds southward into Buffalo Bayou. At the time he bought it, Marks remembers the area "looking like Love Canal," stuffed full of the detritus of decades of neglect, dumping and pollution from unauthorized squatter residents.

"We discovered a guy living there with a tent big enough to have furniture in it," the homeowner recalls. "The guy says, 'Oh, yeah, I wintered here for the last six years and I summer in North Carolina.' " After an amicable discussion with Marks, the man packed his belongings and moved out.

The attorney unleashed earthmovers and landscapers on the property, and began to carve out ponds and channels for his private Eden. Marks also began constructing a columned multistory home on the higher ground near his old house. The problem, he says, was that the more desirable he made the scenery, the more it attracted unauthorized guests.

The city reviewed his security plans, and he received a building permit for the 14-foot "fence." When construction began last month, Marks quickly discovered that transients and trash were the least potent of his foes.

Condo owners in the area quickly began circulating petitions protesting the rising barrier, which is made of composite planking supported by a framework of steel beams. It dwarfs other fences along Chimney Rock and blocks the view of the woodland beyond the road. In its current unpainted and unlandscaped state, it is also strikingly ugly, unlike the predominate pink brick walls in the neighborhood.

"My back porch faces the street," says condo dweller Gem Smith, "and they've blocked my view of the trees." Smith resents the fact she and other neighbors had no input into the city decision to allow the building of the wall, which she claims violates city setback restrictions on major thoroughfares like Chimney Rock.

"None of the other homeowners have ever done anything like this," explains Smith. She worries that a precedent will be established and the natural beauty of the west side will be marred by more roadside eyesores constructed by privacy-obsessed residents.

Shortly after the construction of the wall began, the opposition took its case to City Hall and found allies. City building inspectors quickly descended on the site and red-tagged the structure, meaning it had to be removed within three days or Marks would face increasing fines.

"The permit was issued in error," admits Dan Pruitt. The spokesman for the city building inspection division describes the wall controversy as a unique situation. "We should not have issued it because the property is located on a major thoroughfare," he says. The rule for such locations is a setback of at least 25 feet, a margin that would have made construction impossible. Even a smaller ten-foot allowance would not be workable.

"In this case, ten feet would have put him right in the bayou," says Pruitt. The city planning division is wrestling with a decision on whether any fence can remain on the site, Pruitt says. The city legal department is also involved, because of the possible negligence of the code enforcement officials in granting the permit.

After the red tag was issued, Marks turned to the elected official who represents that area, District G Councilman Bert Keller. Keller's staff managed to get a hold placed on enforcing the removal of the fence while the homeowner seeks a variance that would allow it to remain.

A petition circulated by opponents protests that Keller aided Marks in overriding the City of Houston Code Enforcement Department. Couched in the first person, the text declares, "I object to your assisting Mr. Marks in obtaining a privately determined variance. I object to your having overlooked me as one of your constituents…"

We caught up with Keller on his cell phone, and he initially seemed unaware of the hubbub.

"I'm for the homeowner being able to have a wall," the councilman says. "It's on the street. Nobody's looking at the wall. It's not like there's a neighbor on the other side."

After Keller was apprised that there was indeed a passel of angry residents on the other side of the street with complaints, he softened his stance and promised to drive by for a look-see.

"I probably do 15 things like this a day, and it's amazing it made it to your plate," Keller told The Insider by way of apologizing for not being better versed about the controversy. "When you called, I thought it might be about something like the $1 billion drainage fee."

After checking with his staff, Keller rang back later to say that he believes Marks is entitled to an eight-foot wall, but that 14 feet was not going to happen. The councilman claimed Marks "will invite every resident over from the condos across the street next week to see all of his landscaping plans." Keller then chuckled. "I always tell the mayor he ought to do stuff like that."

The projected neighborhood lovefest may have to be put on hold along with the wall permit, because Marks is not quite as conciliatory as his councilman indicates.

"If I'd known it was going to be an eight-foot fence, I wouldn't have had to put the steel in or pay an engineer," grouses the lawyer. He's not ruling out a lawsuit against the city to recoup damages.

"I'm out a significant amount of money, and that is not right…I'm sympathetic to [the neighbors'] views, but they haven't been living with the homeless folks and the trash."

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