Saving, Fighting, Lawyering

Most of Barrio Libre was destroyed more than 40 years ago in the name of urban renewal; its future is still in litigation

Standing in the middle of Convent Avenue between Cushing and 17th streets, that Joni Mitchell song about paving over paradise for a parking lot comes to mind as I view the Tucson Convention Center to the north and a colorful street of historic Territorial-era rowhouses and adobe homes stretching south—the remnants of a larger neighborhood once upon a time called Barrio Libre.

The neighborhood has been at the center of a legal battle between the city and the Rollings family for more than a decade. It started with a leaky water main that the family claims damaged the adobe walls of many of the historic buildings that it bought and restored in the early 1970s.

The family has always said that an unusual increase in moisture due to the leak is responsible for the crumbling walls. The city has always claimed that, while leaks exits here and there, rain is responsible for this particular problem, plus the family's restoration techniques, which involved using concrete rather than limestone plaster that allows the adobe to breathe (the concrete method, by the way, is approved by the city).

However, after one loss and an appeal, a jury delivered a verdict in favor of the family last November. However, when the Tucson Weekly talked to family representative Donald Rollings at his nearby Convent Avenue office in mid-March, he wasn't celebrating—he was waiting.

Pima County Superior Court Judge Jeffrey Bergin had issued a judgment echoing the jury's verdict—$2.9 million for damage to four properties: the America West Gallery at 363 S. Meyer Ave.; the Simpson Rowhouse at 141,143 and 147 W. Simpson St.; the Jaastad House at 432-436 W. Convent Ave; and the Meyer and Kennedy Complex at 499-501 S. Meyer.

"If a council member walked through that door right now I'd be happy to meet with them—we could still work things out, but that has never seemed to be something the city is interested in," he says.

Instead, a couple of weeks after the Rollings interview, the city did exactly what he expected and filed a motion for a new trial.

According to a records request obtained by the Weekly, the city has paid $1.2 million in legal fees in the Rollings case since 2004, mostly to the law firm of Mesch, Clark and Rothschild. The firm continues to represent the city in its motion for a new trial, which argues that the court didn't instruct the jury properly and allowed unreliable testimony from an unqualified expert witness.

The family lost its first jury trial in 2006, but a year later the Arizona Court of Appeals overturned that decision and ordered a retrial. The city fought back in the Arizona Supreme Court, but its efforts were denied and the lawsuit was sent back to Superior Court last year.

We asked Tucson City Attorney Mike Rankin why the city wanted to continue the fight rather than settle, and whether the city's latest loss means the city should consider changing its legal representation. Because the case continues to be litigated, Rankin said he couldn't address specifics. But he did say the city would continue to employ Mesch, Clark and Rothschild (the firm is Tucson Mayor Jonathan Rothschild's former employer, a law firm founded by his father).

"Our legal counsel has provided thorough, professional and high quality representation for the City throughout the litigation of this matter, and there is no firm better positioned or more capable of protecting the City's interests as this litigation continues," Rankin writes in an email. "The City is continuing the litigation for the reasons stated in the motion for new trial. The City is interested in historic preservation throughout the City."

You don't know what you have till it's gone

Where the convention center and La Placita shopping complex now sit was once a bustling neighborhood of row houses and other adobe structures—the heart of a tight-knit Mexican-American community that also welcomed Chinese, African-American and Anglo residents. Businesses in the area included night clubs, Chinese grocery stores and the Cine Plaza, a popular Spanish-language movie theater.

In the late 1960s, the city, in the name of urban renewal, demolished most of the neighborhood, even as community groups fought back. More than 10,000 signatures were collected for a petition that was outright ignored. The preservation activists did score one victory, however, getting the El Tiradito shrine on the National Register of Historic Places in the early 1970s to keep the proposed Butterfield freeway from tearing into what remained of the barrio.

Today, there are no City Hall bigwigs calling for more demolition in the city's historic areas, although some say there really isn't a champion for preservation either.

Now called Barrio Viejo, the neighborhood is represented by City Councilman Steve Kozachik, who the Rollings and other property owners hoped would take up their cause, but which hasn't happened.

Kozachik recalls going to the neighborhood and touring homes with Donald Rollings, property owners Lisa Mele and Alex Oberlick and several experts. He admits the situation is frustrating but he's at a loss for a solution.

"The city has replaced mains, videoed inside and looked for leaks and fixed leaks. Both sides have expert witnesses and both sides have won one and lost one," Kozachik says.

"Everybody knows there is a moisture issue and no one can identify the cause. I don't have a solution. I've said to people in the city, 'What if we just replace the mains?' Well we've done that. There's still a problem," Kozachik says. "I do know that everybody loses when the court has to create the solution to the problem."

Kozachik says that even though the experts on each side see things differently, he wonders if a better solution is to get more "smart people" together and decide whether the problem is a result of excess moisture or how the adobe walls were treated during restoration.

"The solution for people like you and me is to get all the smart people together in the room and figure it out. My concern is that in reality they have been doing that through court testimony. I wish I had a solution and I wish that solution did not involve any lawyers at all. I know that's the Rollings' desire, too, and the city's."

Tucsonan Alva Bustamante Torres was a champion for Barrio Libre. At 82, she easily recalls names and what took place as she got involved in the effort to save the barrio, joining committees and leading a petition drive, and spearheading the work to put El Tiradito on the national register.

Torres says she remembers car dealer Kelley Rollings, Donald Rollings' father, as someone who had a sincere love for the Southwest and a genuine interest in restoring the structures that remained in Barrio Libre. Torres became involved when a close family friend lamented the loss of homes and culture in the barrio. Torres, who grew up in adjacent Armory Park, said the neighborhood was like family.

"At the time I was a blindfolded person who is going to hit the piñata but doesn't know where it is or what it looks like," she says. "I didn't know what to do; I just knew I wanted to do it." So she asked the editor of the Tucson Citizen and city staffers for help and started a committee to save the original La Placita (helping to save the original gazebo) and other structures slated for demolition.

Meetings about the demolition held at the Pioneer Hotel were already attracting hundreds of people, and when she asked to speak at one she was told she couldn't because she wasn't on the agenda.

"That lit a firecracker under me," Torres says. "I didn't know a soul and this was another echelon of people: money people, business people."

But it never fazed her. She was one of six women who gathered most of the petition signatures, including the late Cele Peterson, a Tucson business legend. Although they encountered lots of support, there were also some insults, mostly from people who came here from back East and saw the barrio as a collection of mud houses unworthy of recognition as historic buildings.

While there are Tucsonans who look back at that time as a dark period in the city's history, others openly question why some in the community continue to grieve. Torres can't understand that attitude.

"It was like part of my family died that didn't have to die," she says, adding that those who can't understand that have little or no respect for the past. "Maybe they don't love their grandparents. If they did, they'd understand why it still hurts."

Torres apologizes as she begins to cry. "I don't mean to cry, but when I think about it I can't help it. The neighborhood was like having a song around you, a cancion de alma."

Making a case for Barrio Libre

The Rollings' attorney, Thabet Khalidi, has maintained an office in the neighborhood for more than 20 years, most of that as a Rollings tenant. As a person of Palestinian descent, Khalidi says he understands why the destruction of Barrio Libre remains painful for many Tucsonans—a group of people were tossed out along with the heart of a community.

"The social structure of that community was destroyed. It's gone," he says.

But that's not the reason why Khalidi won in court last year. This time around, he decided it was best to leave out emotion and argue the case on scientific facts while focusing on the four properties that had the most historic value.

"They are right about the benefits of lime plaster, but for adobe in wet conditions it's not a rule," he says, pointing to communities with wetter climates where aged adobes are still plastered with concrete.

In Khalidi's opinion, the city didn't present adequate reasons for why the adobe had been crumbling for the past 15 years or where the moisture was coming from. He says the city didn't bring up rain until its closing arguments.

The city, he added, didn't even call its hydrologist to testify because "after his deposition, he didn't really disagree with our hydrologist."

Khalidi sees a downside to the city's request for a new trial because it will continue to cost taxpayers. He says settlement offers from the Rollings family would have cost the city less than the $2.9 million awarded in Superior Court last year "but the city never responded."

The verdict, and what the city does next, is about more than the Rollings family getting restitution, Khalidi says. It's about what type of community Tucson is and whether it should care for its historic neighborhoods.

After the verdict, Khalidi and Donald Rollings stood by an elevator in the Superior Court building as juror after juror came up to them and said ruling in their favor was an easy decision.

"It was obvious that they understood, and Thabet's work had a lot to do with that," Rollings said.

Rollings says the lengthy litigation has been hard on his family, especially on his father. Rollings gives him regular updates but tries not to upset him too much when there are delays.

He says his interest in the Southwest and Mexico had a lot to do with his father's interest in the barrio and his concern for preserving it.

The fight over preservation "has to end," he says. "But if you can't get people around the table to say, 'Can we do something that's good for you and good for me,' we won't move forward."

Someone's watching us and what we do next

Anthony Veerkamp, field director for the National Trust for Historic Preservation, says the litigation involving the Rollings family and the city of Tucson has been on his organization's radar for several years. But as long as the litigation continues, it's difficult for the National Trust to get involved.

The barrio, he says, is both a unique neighborhood and uniquely fragile. Following the litigation during the past decade has been "immensely discouraging. ... it feels like this neighborhood is caught in a crossfire."

Veerkamp says the Trust can still play a role, perhaps bringing the city, property owners and neighborhood groups together to ensure that the buildings are protected. What such a plan would look like, however, must be decided by the city and the property owners.

"My goal is not to decide what the city needs to do. That's for the courts to decide," Veerkamp says. "But all the parties need to recognize that there is something at stake here that is really big and that's worth a lot. I've always been curious why this is a matter of dispute."

While the involved parties wait to see what the city's next move will be, change is happening in the neighborhood in small but important ways. In 2011, the Weekly reported on a deteriorating rowhouse where the adobe was exposed, almost melting before your eyes. The property was owned by two partners of Mesch, Clark and Rothschild, and accusations of conflicts of interest flew. The dispute surfaced again as recently as the beginning of this year, when neighbors said it appeared that the building was being purposefully neglected for demolition.

But Barrio Viejo supporters can rest easy. Writers Kathe Lison and Christopher Cokinos purchased the property in March and are restoring it and plan to live there.

"We are committed to the neighborhood, its history, the history of that house and Tucson," Cokinos writes in an email. Buying it "was absolutely the right thing for us to do in all sorts of ways and we're gratified by the interest people have shown in the property."

Cokinos is taking over as director of the UA's creative writing department this fall and Lison is working on a master's degree in architecture at the UA. Lison says she and Cokinos had their eye on the property for almost a year, and finally looked at it in February.

"I've long had a soft spot for old, neglected houses—every one I see I want to buy and fix up," she says. "And the more we looked at this one, the clearer it became that if someone didn't step up it was soon going to melt back into the mud from which it originally came."