A historic site in downtown Fort Worth is deteriorating rapidly, but what exactly can the city do about the private property?
Downtown Fort Worth Inc. recently urged the city to do all it can to force redevelopment of the T&P Warehouse, 401 W. Lancaster Ave.
Gail Tidwell, a former city code compliance officer, said city staff has in the past put pressure on owners to either redevelop or demolish a property. City staff have a variety of tools available to get things moving on the warehouse.
“It’s time to stir the pot,” said Tidwell, who now owns her own code consulting company. “I think (the city) needs to send a notice to (the building owner) and tell her that her building is a dangerous building. It meets the criteria for that and that she needs to tear it down.”
The owner of the T&P Warehouse, Ola Assem of Cleopatra Investment, bought the property in 1998 for $6.4 million, which amounts to almost $12 million today. Tarrant Appraisal District values the site at $4.76 million as of July 31.
In 2007, Assem received $11.6 million in city incentives to redevelop the property. Assem filed a license in 2009 with the Texas Department of Licensing and Regulation to start the $42 million renovation of the warehouse.
Assem lost the city incentives in 2019 for lack of progress.
The private ownership of the historic property gives the owner some protections, but there are instances where the city could seize the property and perhaps save the building, said Brian Owsley, associate professor of law at the University of North Texas Dallas College of Law.
Owsley said there is a possibility that the city of Fort Worth could take the property from the current owner if adequate compensation is provided.
“Oftentimes, the big fight is about the value and how much the property is worth and how much the owner should be compensated,” Owsley said.
That exercise in power is listed in both the U.S. and Texas Constitutions, Owsley said. A 2005 U.S. Supreme Court ruling also noted that a public entity like a city government is justified in condemning private property for the sake of advancing “economic development.”
The city of Fort Worth’s economic development department declined to comment.
Assem, the owner of the warehouse, also did not respond to requests for comment.
Can the government seize private property?
The Fifth Amendment to the U.S. Constitution, also known as the “Takings Clause,” states the government “[N]or shall private property be taken for public use, without just compensation.”
The Texas State Constitution also has an article that reads: “No person’s property shall be taken, damaged, or destroyed for or applied for public use without adequate compensation being made, unless by the consent of such person.”
The term public use is also often broadly interpreted, as seen in Kelo v. City of New London. The private property seized by the city and sold to another private developer was deemed “public use” because it followed an economic development plan.
Tidwell, the former city code officer, cited examples like the Bank One Tower downtown, where Fort Worth required the owners of the building to complete a study on the structure of the site after the 2000 tornado. The threat of demolition of the site pressured the owners to redevelop the property into condominiums.
Another example is the CNB Bank building, also known as the Landmark Tower. After sitting vacant for over 15 years, it was demolished in 2006.
Tidwell argues the city is failing to enforce its own codes and ordinances by not being more aggressive with the owner of the warehouse.
She cited the city’s own Historical Preservation Ordinance, as well as Chapter 54 of the Texas Local Government Code, which gives a city the ability to file a civil lawsuit in a district court to enforce an ordinance on a building to ensure public safety and health.
In the case of the T&P Warehouse, Tidwell said, this clause would apply, noting that the warehouse has become an “attractive nuisance.”
“I think the city’s got to take the phrase “they’re going to sue us,’ and put that aside. Sue her first. Take the lead,” Tidwell said.
Chapter 54 of the Texas Local Government Code
SUBCHAPTER B. MUNICIPAL HEALTH AND SAFETY ORDINANCES
Sec. 54.012. CIVIL ACTION. A municipality may bring a civil action for the enforcement of an ordinance:
(1) for the preservation of public safety, relating to the materials or methods used to construct a building or other structure or improvement, including the foundation, structural elements, electrical wiring or apparatus, plumbing and fixtures, entrances, or exits;
(2) relating to the preservation of public health or to the fire safety of a building or other structure or improvement, including provisions relating to materials, types of construction or design, interior configuration, illumination, warning devices, sprinklers or other fire suppression devices, availability of water supply for extinguishing fires, or location, design, or width of entrances or exits;
(3) for zoning that provides for the use of land or classifies a parcel of land according to the municipality’s district classification scheme;
(4) establishing criteria for land subdivision or construction of buildings, including provisions relating to street width and design, lot size, building width or elevation, setback requirements, or utility service specifications or requirements;
(5) implementing civil penalties under this subchapter for conduct classified by statute as a Class C misdemeanor;
(6) relating to dangerously damaged or deteriorated structures or improvements;
(7) relating to conditions caused by accumulations of refuse, vegetation, or other matter that creates breeding and living places for insects and rodents;
(8) relating to the interior configuration, design, illumination, or visibility of business premises exhibiting for viewing by customers while on the premises live or mechanically or electronically displayed entertainment intended to provide sexual stimulation or sexual gratification;
(9) relating to point source effluent limitations or the discharge of a pollutant, other than from a non-point source, into a sewer system, including a sanitary or stormwater sewer system, owned or controlled by the municipality;
(10) relating to floodplain control and administration, including an ordinance regulating the placement of a structure, fill, or other materials in a designated floodplain;
(11) relating to animal care and control; or
(12) relating to water conservation measures, including watering restrictions.
Although the city could technically seize the site of the T&P Warehouse, the risk of a lawsuit from the current owner remains high, Owsley said. Regardless, when it comes to historic properties, the clock is ticking.
“Litigation isn’t always the answer, but sometimes it may be what is going to have to happen. I mean, if the city sits and waits too long, the property crumbles further and then it can’t be renovated,” Owsley said.
In May, a report commissioned by the Fort Worth Local Development Corp. noted over $2 million in repairs that must be completed in the next one to three years.
The report’s findings and the ongoing development activity along the Lancaster Corridor prompted Downtown Fort Worth Inc. to issue the resolution, said Andy Taft, president of the organization.
“The fact that some of the improvements made the last time a report was done, the fact that those are starting to fail … This is a significant historic property and demolition by neglect is a real thing,” Taft said.
Justin Newhart, preservation and design manager for the city, said the last major repairs done on the property were between 2016 and 2018 when the owner added temporary fixes to address the ongoing standing water issue.
“The goal was to temporarily address those issues until the owners could get to a point where they can undertake a restoration project because they didn’t want to permanently address those issues now and then have to come back and make changes to them based on whatever project they would do in the future,” Newhart said.
Fort Worth’s Historic Preservation Ordinance cites some steps the city could take to request the demolition of a historic property, like the T&P Warehouse, due to neglect.
The city’s landmark commission can submit a written report of its findings and recommendations to the historic preservation officer to determine if a historic building should be demolished.
If the landmarks commission determines the structure cannot be rehabilitated, the building standards commission or municipal court may order its demolition.
The city’s Historic Preservation Office is looking to submit a case for the warehouse to the Historic & Cultural Landmarks Commission’s Aug. 14 meeting to determine whether the structure can be reasonably rehabilitated to remain as a structure contributing to the city’s historic heritage, staffers said in an email. This is a standard step in the Code Compliance process for historic properties.
Newhart said given the recent structural report, he doubts the commission will determine the property cannot be rehabilitated. The last time staff submitted a case to the commission was in 2017.
The city has taken the building to the historic preservation office “for the same request a few times in the past and they have always found that the structure can be reasonably rehabilitated,” Newhart said in an email.
Review process for the demolition of a historic site:
Step 1: Submission of an application for a Certificate of Appropriateness. A Certificate of Appropriateness is an authorization permitting the alteration, addition, demolition, or new construction that affects a historic property or historic district. The application must show that the property is either financially unviable even with rehabilitation or provide a condition assessment of the site.
Step 2: Review and action either by the Historic Preservation Officer or the Historic and Cultural Landmarks Commission. This is also the point in time when a public hearing would be held.
Step 3: Written decision for a Certificate of Appropriateness.
Source: City of Fort Worth Historical Preservation Ordinance.
Downtown Fort Worth Inc. notes the lack of activity redeveloping the warehouse is hindering the redevelopment of the Lancaster Corridor. Taft said many prospective developers, buyers and community members are frustrated with the lack of progress.
“Ultimately, the conclusion is that the only party other than the property owner that has any influence on (the warehouse’s) redevelopment and restoration is the city,” he said.
While the fate of the historic property remains unknown, Tidwell said, she is confident that once the site is out of the hands of the current owner, there is hope for the warehouse to receive new life.
“Everybody’s scared of demolition because it’s so big,” Tidwell said. “But the thing is, it’s not even a reality that it would be torn down. The people that run Fort Worth would form a partnership and say, ‘We’re going to rescue it.’”
Editor’s note: this story was updated on Aug. 1. The Bank One Tower has been turned into condominiums. The demolition of the CNB Bank building was done by the owners.
Sandra Sadek is a Report for America corps member, covering growth for the Fort Worth Report. You can contact her at sandra.sadek@fortworthreport.org or on Twitter at @ssadek19.
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