Strategies for Preventing Improper Demolition and Construction

 

 

QUICK LINKS TO PROTECTION STRATEGIES:

 

Demolition Strategies

Construction Strategies

Review Demolition Permits on City Web Site by Street Address 

Know Your Rights -- Understanding Private Deed Restrictions and the City’s Zoning and Building Code Requirements     

Prevent Demolition of Historic Properties by Contacting Historic Landmark Commission

Review Building Plans for New Construction

Apply for Local Historic District Protection

Contact Property Owner/Builder about Building Plans

Apply for National Historic District Protection

Contact City Building Inspector about Code Violations or Enforcement Concerns

Use Deed Restrictions to Protect Neighborhood

Challenging Zoning Changes and Variance Requests

 

DEMOLITION PROTECTION STRATEGIES

 

REVIEW DEMOLITION PERMITS ON CITY WEB SITE BY STREET ADDRESS:  To find out if a demolition permit has been granted for a property, you can search for Building Plans which are filed with the City’s building inspectors before construction or demolition activity occurs.  You can also search for Permits which are granted and updated by the City’s building inspectors as the construction or demolition activity occurs. 

 

To find demolition permits and plans, you can search the City’s web site (http://www.ci.austin.tx.us/development/pierivr.htm) by property address.  Unfortunately, you need to search for demolition permits at both the Permit Search site (http://www.ci.austin.tx.us/pierivr/permit_menu.cfm) and the Building Plan search site (http://www.ci.austin.tx.us/pierivr/building_plan_menu.cfm) by entering the street address of the property in question.  The search results from the Permit Search site will list “DEMO” in the description field for any demolition permits, while search results from the Building Plan search site will usually include a “D” at the end of the BP Number for any demolition permits.

 

PREVENT DEMOLITION OF HISTORIC PROPERTIES BY CONTACTING HISTORIC LANDMARK COMMISSION:  Currently, the City Historic Preservation Office and the Historic Landmark Commission review applications for demolition or relocation permits to determine whether a building meets the criteria for designation as a historic landmark.  The determination is made according to objective criteria, but designed to protect those buildings with exceptional significance to the city because of their architecture and historical associations. 

To determine if a property meets the criteria for historic designation, see the City of Austin Historic Landmark Designation Criteria by clicking here.  Generally speaking, the property must at least (1) be 50 years old, (2) retain sufficient integrity to convey its historic appearance and (3) be significant in at least two of the following categories:  architecture, historical association, archeology, community value, or  landscape feature.  If you believe that a property meets the criteria for designation as a historic landmark, please contact Steve Sadowsky, Historic Preservation Office (974-6454 or steve.sadowsky@ci.austin.tx.us) with your concerns, and be sure to document all communications you have. 

APPLY FOR LOCAL HISTORIC DISTRICT PROTECTION:

In December 2004, the Austin City Council passed an amendment making a number of changes to the historic preservation ordinances, including allowing for the establishment of local historic districts by providing rehabilitation incentives for properties in such districts.  The City Historic Preservation Office is developing nomination forms and other materials necessary for the implementation of the historic districts.  A summary of the new ordinance that was sent out to landmark owners may be obtained by clicking here.  Another summary from the City of Austin Preservation Officer, entitled “LOCAL HISTORIC DISTRICTS IN AUSTIN,” may be obtained by clicking here.  THIS IS BIG NEWS BECAUSE THE ORDINANCE MAY BE AN EXTREMELY USEFUL TOOL FOR OUR NEIGHBORHOOD.

 

According to the summary, tax abatements would be available for qualifying improvements or rehabilitations.  In addition, design standards for new construction within the district would be provided to establish parameters for the design of new construction and to provide neighbors within the district a higher level of comfort knowing that new construction will be required to follow accepted design standards based upon the existing architecture within the district.  The district design standards will be individually tailored to meet the needs of the particular district, and may address building materials, height limits, and setbacks for new construction within the district.

 

APPLY FOR NATIONAL HISTORIC DISTRICT PROTECTION

 

The National Register of Historic Places is the nation’s official list of historic properties worthy of preservation.  Listing in the register is an honor and carries no direct restrictions.  A common misconception is that houses in an historic district cannot be remodeled or demolished.  This is not correct.  Under Federal law, owners of private property listed in the National Register are free to maintain, manage, or dispose of their property as they choose provided that there is no Federal involvement.  Owners have no obligation to open their properties to the public, to restore them or even to maintain them, if they choose not to do so.

Benefits of registration include:

·        Recognition for historic importance of the Deep Eddy Heights area to our community,

·        Increased property values (think of increased personal wealth),

·        Additional protection from federal activities (think of MoPac),

·        Eligibility for tax credits of 20 percent for the approved rehabilitation of income producing properties (including duplexes, apartments and dwellings converted to office uses) (think of renovating Deep Eddy Pool or Cabaret),

·        Qualification for Federal grants for historic preservation, when funds are available.

Potential drawbacks include the possibility that the City’s Historic Landmark Commission might consider a listing on the National Register historic commission as part of its determination of whether to deny a demolition permit.  However, it appears that the Historic Landmark Commission is no longer following this policy.

 

Additional details about the qualification requirements and application process is available at www.cr.nps.gov/nr/index.htm and at www.WestAustinNG.com/Deep%20Eddy%20Presentation.pdf, which is a summary of information collected regarding an earlier investigation of pursuing historic district protection for the Deep Eddy Heights area.

 

USE DEED RESTRICTIONS TO PROTECT NEIGHBORHOOD:  At our May 2005 board meeting, Nikelle Meade, a partner with the Brown McCarroll law firm, presented information on how deed restrictions can be used as an effective tool for like-minded neighbors to protect their local neighborhood from over development.  A summary of the presentation, entitled “Restrictive Covenants” is available by clicking here.

 

WANG will work toward setting up a program to help small groups of neighbors (perhaps a group of neighbors on a one or two street area) enact an agreed set of deed restrictions that would preserve the general "look and feel" of the street, or at least prevent the most offensive development outcomes. 

 

CONSTRUCTION PROTECTION STRATEGIES

 

KNOW YOUR RIGHTS -- UNDERSTANDING PRIVATE DEED RESTRICTIONS AND THE CITY’S ZONING AND BUILDING CODE REQUIREMENTS: 

Zoning and Building Code Restrictions:  Zoning districts were established to promote compatible land use within the City limits and to control development density.  Zoning districts typically set restrictions on building height, bulk layout, impervious cover, fence height, etc.  SF-3 “Family Residence” is the predominant zoning district for West Austin, though there are also some commercial properties along Exposition and Lake Austin Boulevard.

As a property owner, you are ENTITLED to the land uses that are defined by the zoning for your property.  From a historical perspective, the restrictions on land use provided in the zoning districts (such as impervious cover) were intended to be an absolute upper bound on property use, and were never intended to define an sort of “average” use definition.  So when you purchase an SF-3 zoned property, you have the right to make the following uses of your property:

You can build a single family house (or a duplex if the lot is 7000 sq. ft) that can be positioned on the property up to the minimum setback distances from your property lines (front yard setback of 25', street side yard setback of 15', interior side yard setback of 5', and rear yard setback of 10').  Under coverage limits, the building can cover up to 40% of the property, and the total impervious coverage can be up to 45% of the property.  If you build any fences on the property line, the fence may be 6' in average height, but may be a maximum of eight feet in height if the fence is located on or within the building setback lines.

 

According to the Residential Design & Compatibility Standards (the “McMansion Ordinance”), there is a “floor-to-area ratio” limit on the size of the home to the greater of 2,300 square feet or a square footage that is 40 percent of the lot size, though certain features (such as attics, small attached garages, detached rear garages and first-floor porches) are not counted toward the size because these elements do not add to the mass and bulk homes.  A setback building envelope was also added to push height away from adjacent neighbors, allowing traditional two story homes (e.g., up to 20 feet tall) to be built at the five foot setback line, but requiring taller structures to be moved away from the adjacent neighbors.  In addition, a height limit of 32 feet applies for single family homes (30 ft. for duplexes), and side wall articulation requirement was added for certain sidewalls over 32 feet in length and 15 feet in height.  The “McMansion Ordinance” addresses concerns about overly large new houses that loom over existing neighbors and destroy neighborhood character, but that would still allow homeowners to build bigger and taller homes.

There are also certain permitted uses for an SF-3 zoned property.  For example, authorized residential uses for SF-3 zoning include Single-family Residential, Lodging-house Residential (Owner occupied B&B) and Retirement Housing (small site).  Civic uses for SF-3 zoning include Communication Service Facility, Day Care Services (limited), Group Home, Class I (General), School and Religious Assembly.

To see a summary of the zoning requirements for SF-3 residential properties (which is the zoning category that applies to most of the WANG area), see the “Zoning 101” summary and the City’s Site Development Standards for Residential Zoning. 

In addition, the 2001 Neighborhood Planning Guide to Zoning is a handy reference guide that lists all zoning codes (e.g. SF-1, MF-4) and their specifications, such maximum building height, minimum lot size, and allowed uses.  Also included are descriptions of allowed civic, commercial, industrial, and residential uses. The first section of the guide lists the Smart Growth infill and redevelopment options under the Neighborhood Plan Combining District. 

Private Deed Restrictions and Restrictive Covenants:  In addition to use limitations provide by zoning laws, deed restrictions and/or restrictive covenants may also limit use of a property.  For example, the deed restrictions for a property may impose a front yard setback requirement that is more restrictive than the city’s requirement.  Very often, a property record search must be made in order to locate such restrictions/covenants, but they can be a powerful tool for preserving property values and neighborhood standards.

Deed restrictions are considered “private” matters and are not enforced by the City.  Normally deed restrictions deal with the character of the neighborhood and can be enforced by neighborhood associations or private citizens in civil court. 

REVIEW BUILDING PLANS FOR NEW CONSTRUCTION:  Residential permit applications for a property usually include a description of the project (square footage, impervious cover, etc.) and a topographical survey with the outlines of the structure to be built.  To see the applications filed by the builder with the City, you can search the Building Plans web site (http://www.ci.austin.tx.us/pierivr/building_plan_menu.cfm) by property address.  The search results from the Building Plan search site will usually include a link (labeled “APPLICATION”) to the application under the “DOCUMENT INFORMATION” heading, though the documents are downloaded as TIF files that sometimes are blocked by pop-up blockers on your browser, so you may need to jiggle your browser settings.

 

CONTACT PROPERTY OWNER/BUILDER ABOUT BUILDING PLANS:  Neighbors who live near a new home or remodel project will very often want any project to be compatible with the existing “look and feel” of the street, and may also have helpful information for the new owner regarding easements, private deed restrictions, water flow concerns, etc.  All concerned parties can benefit by meeting early in the construction process about a project.  To contact a new property owner, try reaching the owner or builder identified at the property site, or look up the owner on the Travis Central Appraisal District web site by performing a property address search at http://www.traviscad.org/travissearch.php?mode=situs&kind=real.       

 

CONTACT CITY BUILDING INSPECTOR ABOUT CODE VIOLATIONS OR ENFORCEMENT CONCERNS:  If you are concerned that the City is not enforcing its land use and zoning requirements relating to impervious cover, setback requirements, tree protection, you can contact your neighborhood association by clicking here, but you should also contact the City code enforcement directly at Zoning.Enforcement@ci.austin.tx.us or 974-6576.  You should be prepared to provide a specific property address and to specify your concern.  Violations can be reported anonymously.  The City will follow up a zoning violation with a verbal notice.  If no action taken, a written notice will be sent.  Finally, a court date will be set if no action is taken.  A court can fine up to $2000/day for noncompliance.

 

CHALLENGING ZONING CHANGES AND VARIANCE REQUESTS:  Property owners are required to comply with the current zoning rules if they wish to expand and/or improve their property.  If a property owner wishes to exceed the allowed zoning uses or requirements, he or she must obtain a “variance” or zoning change before making any changes on the property.  A property owner wishing to have an exception from the current zoning restrictions can file a variance request with the City.  One needs to go before the Board of Adjustment for a zoning variance, at which point neighborhood input is permitted, as described below.  No construction is permitted until a variance is granted and/or an appeal is completed.  To see the Board of Adjustment rules and regulations, click here.

 

Prior to the Board of Adjustment hearing (described above), notices of the variance request are sent to residents within 300' of the property and to any organization having an interest in the application (such as a neighborhood organization).  If an affected resident or neighborhood organization objects to the variance request, that objection should be presented at the Board of Adjustment hearing.  Objections may be presented by filing out the objection form provided with the notice and delivering it to the Board.

 

Either party may appeal a variance decision by the Board of Adjustments.  An appeal must be filed within 14 days, and can only be filed by the property owner in question, property owners within 500' of the property or an officer of affected environmental or neighborhood organization.

In addition, a “petition” procedure requires a super majority of the City Council to approve a zoning change.  Instructions on how to file a valid petition to protest a proposed zoning change are available by clicking here.  Under this procedure, neighbors within a 200' radius of the property in question who protest a zoning change can file a “petition” with the City Council.  If a written protest against a proposed rezoning, signed by 20% or more of either the area of the lots or land included in such proposed change, or of the lots or land immediately adjoining the same and extending 200 feet therefrom, such rezoning shall not become effective except by the favorable vote of three-fourths of all members of the Council.

For more detailed information, see the “Zoning 101 presentation handouts” on the Austin Neighborhoods Council web site at www.ancweb.org/docs/Zoning%20101%20Handout.pdf.