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Board of Adjustment wrestles with new home/remodel question

Thursday, December 3, 2009 by Charles Boisseau

Say you purchase an older Austin home and you want to make some extensive improvements. At what point does your redo cross the line from a simple remodel to being a new construction project?


That was one of the issues that the Board of Adjustment grappled with last month as numerous property owners stepped forward with requests for variances from city building and zoning codes for all manner of projects — from installing carports and porches and patios to building garage apartments and sheds.


One of the most interesting of the more than two dozen cases the board addressed involved the remodel (or was it “new construction”?) of a home at 2305 Windsor that was originally built in 1935.


In October 2008, after obtaining all the required building permits and approval from the appropriate city residential review staff, the homeowner, Lara Valdez Postula, proceeded to remake the home. She hired a builder, who reduced the structure to its studs and rebuilt it in virtually the same spot, using part of the original foundation.


Then in July 2008, the project was stopped when a city building inspector told the builder that the home crossed the line from remodel to new construction. And since the “new” home was only three feet from a side yard property line, it was not grandfathered and therefore required approval from the Board of Adjustment before the project could go forward.


This instance points out how the distinction between “remodel” and “new construction” can sometimes become crucial. Many older homes are “nonconforming” to modern Austin building and zoning codes in some way, codes that, for one thing, require that most homes have a five-foot setback from adjacent properties. (Homes on corner lots need a 15-foot setback.) 


In June 2008, a memo from then City Planner Jessica Kingpetcharat-Bittner reiterated city staff’s take on the new vs. remodel question: A project could be considered a remodel if it maintained at least one original exterior wall and kept the original foundation. Since Valdez Postula’s project didn’t maintain the original foundation, but only part of it, it was halted because it violated current codes for new construction.


Last month, the members of the Board of Adjustment voted to grant Valdez Postula’s variance request, allowing her project to continue.


“This should have been caught way at the beginning,” said Board Member Michael vonOhlen, speaking about the building and permitting process. “I don’t feel like punishing these folks” for city staff’s original improper interpretation of codes that allowed the project to begin without receiving the variance first.


But the question of remodel vs. new construction won’t go away anytime soon. It will come up again for consideration.


Board Member Bryan King said that some builders and homeowners are clearly taking advantage of the confusion over the issue. He cited one case he knew about on Wayside Drive in the Deep Eddy neighborhood in which an entire home except about 10 feet of one wall was torn down and a new home was rebuilt, and “they called it a remodel.”


The question is one elected officials and city staff have wrestled with for years. In an effort to create a black-and-white definition, City Council, on Dec. 6, 2007, adopted a resolution that directed city staff to change the Land Development Code to create new residential-building standards. Council offered four guidelines as a starting point, saying that at a minimum a project should be considered new construction (and not a remodel) if the builder/owner:


  1. Removes more than 50 percent of the structure’s exterior walls, and supporting elements, such as columns and studs, are removed;
  2. Modifies the original roof line, except to the extent that it is compliant with current building codes;
  3. Expands the structure horizontally or vertically (otherwise an application for an addition is required);
  4. Seeks to finish one remodel, for say 50 percent of a structure, and starts a second project immediately following.

Two years later, after much debate and after many proposed alternatives were shot down internally by staff, city officials have not gotten any further than those original guidelines, John McDonald, supervisor of the Residential Review section of the city’s Planning and Development Review department, told In Fact Daily.


All manner of city boards and commissions – including the Residential Design and Compatibility Commission and the Building and Fire Code Board – have debated the issue. In the end, they have agreed only to a proposed change that pretty much matches the 2007 City Council directive.


McDonald guessed that sometime in January Council could have a second bite of this apple.


Even so, he predicted the debate would continue for some time. He said that pinning down the issue is difficult in part because sometimes during construction an old structure may need to be more extensively remodeled than first thought, for example if there is extensive wood rot. Such a determination can’t be made ahead of time but only during construction.


“It’s problematic,” McDonald said. “It’s a difficult thing to determine and the guidelines need to be more precise, and more research on the existing codes needs to be done to help in this matter.”


Moreover, requiring more extensive reviews on the front end could greatly slow down the permitting process and overly tax an already busy city staff, he said.


Until City Council approves proposed new guidelines, building reviewers and inspectors have no choice but to continue to rely on existing guidelines to decide whether a project is new or a remodel – namely whether it maintains its foundation and at least one exterior wall.

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