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Board decision could have impact on Austin remodels

Friday, May 7, 2010 by Michael Kanin

The Building and Fire Code Board of Appeals took two separate actions this week that may well have an effect on how Austin defines the term remodel. In the first, they upheld a stop work order that had been issued for a property at 1915 David Street. The board also voted in favor of an appeal brought against the issuance of that project’s building permit and site plan.


The question of how to define the term “remodel” played a central role in both cases. After a protracted debate that found the board occasionally wondering outside of its purview, it issued a broad ruling.


“This building started out as an 1,168 square foot structure and then somewhere along the way…we ended up with either 400 to 700 additional square feet being added to this building,” said Commissioner Scott Stookey. “On the basis of that, that in my mind constitutes new construction.”


Agent Mike McHone represented the developer Mitch Ely. He argued that repeated delays had caused “severe financial hardships” for Ely and that the code didn’t support the stop work order. He also told commissioners that his side “wanted to be sure that we were not caught in a position of not having exhausted all administrative relief…(should the case) go to a higher judicial review.”


As far as the project itself was concerned, McHone said that his side had worked extensively with the city to make sure that it would pass muster. He also insisted that the extensive demolition Ely had pursued was within the limits of a remodel definition.


In preparing the site for its next incarnation, Ely had removed all but “a portion of one wall and an old pier-and-beam foundation, which will be totally non-functional, since it will be buried underneath a brand new slab foundation,” according to neighborhood leader Nuria Zaragoza.


Zaragoza, the president of the Original West Austin Neighborhood Association, represented the opponents of the building. She suggested that the future project was in fact new construction, and shouldn’t be considered a remodel. She added that, if left as-is, it would be something of a “stealth dorm.” To support her argument, she offered evidence that five rooms currently not labeled as bedrooms on the site plan were to be used as sleeping quarters.


Commissioners made their concerns known as McHone began his defense. Alan Schumann questioned him about an advertisement that Zaragoza had found which seemed to list the David Street property at over its legal occupancy. McHone suggested that the web site hadn’t been updated recently. Then Stookey began to hone in on whether the building, which would come with a planned attic addition that seemed as if it could be lived in, could be classified as a single-family residence.


The board voted 5-0 to uphold the appeal of the David Street Property and Site Plan. Should McHone opt for an appeal of his own the issue would go before the City Council.


On Monday, the Board of Adjustment is scheduled to take up the case in a separate matter that will address many of these same concerns. If they so choose, either party could appeal that body’s decision to District Court.


After the meeting, McHone told In Fact Daily that he was “a little surprised at the decision,” and said that his group would consider an appeal. He added that he was “unclear” on exactly what limitations had been placed on remodels.


“My real concern is outside of this project,” he added. “Did they say that if you add new construction or new square footage you are no longer a remodel but a new construction?” he asked.


“That would mean you’d have to bring all of the building into compliance with the rules and regulations of the current codes.”

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