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Board of Adjustment rules against campus-area developer

Thursday, May 13, 2010 by Michael Kanin

The west campus neighborhood group fighting to stop a huge “remodeling” project in their neighborhood has won another round. Their victory came in front of the Board of Adjustment, which upheld much of their appeal against a redevelopment project on David Street Monday night.


That decision, which came in four separate motions, found that the city’s planning department erred in three key rulings: its classification of the plans for what would have been two mostly new structures as remodels, its finding that the effort would have been built for use as a two-family residential unit, and its determination that, thanks to flexibility allowed within current remodel rules, the developers could lease to up to 12 unrelated adults.


In the last of the motions, the board denied the opponents’ appeal that the developer had mislabeled some rooms that may in fact have been bedrooms.  


Though Board Member Bryan King sought to widen the issue by setting a limit on what can be generally classified as a remodel, that effort fell short. Still, he got his point across. “I think that the staff did not correctly interpret the term ‘remodel’ and I think that the 2008 letter (that staff has been using to help define the term) is inappropriate to describe what a remodel is,” he said.


“I think the reasonable person looks at a remodel and considers that it is an envelope of a house that gets updated … but when you level it down to (when) you just see a few piers and beams and a scrap of a wall left, you’ve demolished a building — you’re starting fresh,” he added. “It’s a loophole and I think it should be closed.”


The David Street property is currently at the center of this debate. Over the past two months, appeals brought by Original West Austin Neighborhood Association President Nuria Zaragoza against the property’s redevelopment have been brought informally to the City Council (see In Fact Daily, April 12, 2010) and formally before the Building and Fire Code Board of Appeals (see In Fact Daily, May 8, 2010).   


Zaragoza told In Fact Daily that she was satisfied. “Here, I think they clarified sufficiently that it was the site condition that was inconsistent with that of a remodel because they had taken too much of the structure down,” she said. “I think — I’m hoping — that this really closes the door on the remodel.”


She added that the opponents of the project “were really looking for an interpretation on whether you can grandfather (an occupancy of) 12.” Currently, she said, “the city interprets the code as you can grandfather 12 people if you had a duplex or a two-family residential (unit) before 2003.”


“(This) is going to bring this sort of development often because people want to fit in those 12 people somehow.”


Local real estate vet Mike McHone again represented David Street owner Mitch Ely. After the hearing he said “that behavior is being equated to number of occupants.”


“The real problem is not the number of occupants,” he said. “The real problem is does that bring a behavior situation … They’re trying to regulate behavior by regulating occupants, and my experience has been that’s not always the case.”


McHone reiterated that he has been instructed to exhaust all administrative appeals. He wouldn’t directly comment about whether or not Ely would file an appeal at District Court. That would be the next stop for the David Street project, after a return to the Board of Adjustment for reconsideration.

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