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Nursery owner fears city will force closure

Friday, March 25, 2016 by Jo Clifton

The website for the Dawson Neighborhood Group warns in bold letters, “Dawson Neighborhood Poised to Lose Another Beloved Business! Help the Great Outdoors!” The site urges readers to contact the offices of Mayor Steve Adler and City Council Member Pio Renteria. A similar plea appears on the Great Outdoors nursery’s website.

Problems arose when Thomas Tinguely, the owner of the popular Great Outdoors nursery on South Congress, asked the city for a permit to install a safety shutoff for the waterfall at the nursery, setting off a cascade of complaints about code violations beginning in August 2014.

A timeline from the city manager’s office indicates that the problem started on Aug. 8, 2014, when the Austin Code Department received a complaint about work without a permit at the nursery, which is located at 2730 S. Congress Ave. Two months later, the Code Department received a complaint about the nursery’s lack of a certificate of occupancy.

According to the websites of the neighborhood and the nursery, Tinguely bought the property in 1994 and was required to install additional parking. “A contractor was hired to do the approved work, but the contractor apparently neglected to open and close a separate building permit after receiving the approved site plan exemption, so a final C.O. (Certificate of Occupancy) was never issued. As such, the City has continued to issue subsequent building permits since 1994 without a problem,” the websites say.

Tinguely told the Austin Monitor on Thursday that the city’s attorney has agreed to settle the complaint about the lack of a certificate of occupancy for a $100 fine. However, Tinguely’s attorney noted that a city code enforcement officer can continue to issue the nursery citations because the business still has no certificate.

Tinguely wrote on his website, “Thanks to everyone for your show of support, we will keep you updated if we are given another citation and forced to continue to gut our business which would effectively shut us down.”

Although most of the disagreements between the city and Tinguely appear to have been settled, the city still has several complaints about how the business is configured. If the city insists that Tinguely reconfigure his loading area, change the parking area and eliminate a restaurant built in 1940, Tinguely says it will force him to give up the business he has been operating since 1994.

According to Tinguely, “City staff is requiring a full range of changes,” including the elimination of the current loading dock and parking along South Congress and a requirement that the business stop traffic on South Congress multiple times per day to back trucks into the customer parking lot. This arrangement would prevent customers from leaving the parking lot while trucks are loading and unloading, Tinguely said.

Tinguely said he has already spent tens of thousands of dollars trying to comply with city regulations.

According to the city’s timeline, the Development Services Department staff met with Tinguely and his agent, David Cancialosi, to explain that in addition to eliminating the loading dock and the South Congress parking, staff wants Tinguely to relocate or remove decking and a greenhouse at the back of the property.

Because of the way the code is written, staff also wants the Great Outdoors to comply with accessibility requirements and provide sidewalks or “request alternative equivalent compliance in certain areas.”

Emily Jacobs of the communication division of the Code Compliance Department told the Monitor, “As of now, we just want the certificate of occupancy.”

In a follow-up email, Jacobs said, “Development Services is actually the department that handles Certificates of Occupancy. The Code Department just enforces it. So if we inspect a property and find that they don’t have this (certificate), all we do is send them a Notice of Violation. It is DSD that handles everything else.”

Tinguely said, “It’s absurd. … It makes no sense. … This has been the most frustrating thing I’ve ever dealt with.

“They want us to plant trees and not have any in or out (traffic) from the front of our nursery. … They want us instead to block all traffic on South Congress (when delivery trucks come), which can be 10 times a day – block all our customers’ cars so they can’t get in or out. … That is their solution to meeting the current code … rather than doing it the way that we do, which they approved in 2013,” he said.

“They’re saying this is the way the code is written right now. They’re treating it like a brand-new subdivision, but I’m not building a subdivision. … By forcing us to build it like if I were building a Bed Bath & Beyond … to take out the entire area and plant trees – I quit. I’m not going to do that,” Tinguely concluded.

Staff for Renteria and Adler said they were looking into the situation but had taken no action so far. Both offices have to be careful not to stray into the city manager’s purview while letting staff know that they want to help their constituents.

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