ABJ Article: Ravaged by red tape

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Ellen Troxclair
Posts: 40
Joined: Tue Jan 13, 2015 1:26 pm

ABJ Article: Ravaged by red tape

Post by Ellen Troxclair »

Council Members,

I wanted to share this article from the Austin Business Journal for you to read when you get a chance. I would like to have a discussion with our Planning and/or Legal staff about this case. If other members are interested, this could be done during a work session or executive session as soon as practicable.

Thank you,
Ellen Troxclair

Ravaged by red tape - One couple's fight to renovate their home
How a house in East Austin became alleged to be ‘the epitome of misuse of administrative and regulatory power

Jan Buchholz
Senior Staff Writer- Austin Business Journal

Toria and Blake English moved to Austin in 2010 with the expectation that the Texas capital would be a much better place than San Francisco to raise a family — both from a cultural and financial standpoint.

Less than five years later, those hopes and dreams have evaporated in a sea of legal fees that exceed $80,000 and continue to add up daily — plus the specter of possibly being prosecuted as criminals.

And it’s all because they wanted to renovate their new Austin home.

The couple is embroiled in a dispute with the city over about $100,000 in improvements they made to their cute Antebellum-style house at 1307 Waller St. in East Austin.

Because the issues are now at the center of a lawsuit filed by the English family, no one from the city of Austin would comment for this article — though Austin Business Journal contacted public information officers at three divisions: Austin Energy, Development Services and Austin Code Department.

The overarching question behind the English family’s tale is one that has been raised repeatedly in recent years — are the city of Austin’s planning and building review processes antiquated, unwieldy and costly beyond reason?

Many businesses have been saying “yes” to that question for a long time, and ABJ has repeatedly documented those concerns in print and online articles.

The English family’s story shows how something as modest as a residential remodeling project can end up fraught with missteps and mishaps — even when a homeowner is diligent and receives the necessary permits. An individual homeowner fully intent on playing by the rules has little hope of getting a fair shake, Toria English alleges.

Arriving with anticipation

“We moved to Austin in 2010 when we were expecting our second child,” she said, her eyes brimming with tears as she recounts the relocation and failed attempt at starting afresh in a vibrant city.

On this day in mid-October, Toria English is meeting with her attorney, Neal Meinzer of Taube Summers Harrison Taylor Meinzer Brown LLP in downtown Austin. The meeting comes after a three-hour drive from Houston where she and her husband Blake, an executive with Silicon Valley Bank, live now with their two children, ages 6 and 4.

She said she wants to tell her story to impart a sense of how the city’s intensely criticized development and review departments are allegedly harming average homeowners — coming at a time when Austin has vaulted to the top of many national best places to live and work lists.

It was some of those stellar reviews that factored into decision by the English family to make Austin their adopted home.

“We wanted to live here where I could stay home with our kids and focus on our family. We’d never been to Texas before but Austin had a good reputation,” English said.

The couple settled on a modest house in a quaint neighborhood a short jaunt from I-35. Surrounded by other homes tucked closely together underneath a canopy of mature shade trees, the area seemed like a little slice of heaven. It felt cozy and safe but with an interesting mix of culture that’s lacking in other areas of town.

“We looked at a lot of different neighborhoods, but we wanted a diverse neighborhood and to be close in,” English said.

The three-bedroom house Toria and her husband purchased was the first they’d ever owned. It’s unknown what the couple paid for the house, though documents filed with the Travis County Clerk’s office indicate they obtained a loan for $410,000 secured by the property.

It almost appears as a historic renovation, but the house was a new-build — just with plenty of character.

“It was adorable,” she said.

The nightmare begins

After they moved in, the couple moved forward with building a small swimming pool. They picked the house on Waller Street in large part because it provided enough of a yard to handle the project.

Two years after the pool was completed and passed inspections, the English family decided to convert the garage into an apartment for an aging grandparent.

That decision led to a series of outcomes — and monumental expenses — English said she could never have imagined.

The garage conversion never happened. Before the city would approve plans for the project in February 2013, the couple was required to construct two new parking spaces on their property to make up for the loss of the garage.

The costs and hassles of adding those parking spaces diminished their enthusiasm for the bigger project.

English spent hours with her toddlers in tow waiting in line at city offices, talking with staff at the Development Assistance Center — in person, on the phone and via email — verifying plans and permits and dealing with unexpected circumstances, including an unmapped electrical manhole cover buried under landscaping that had to be addressed as part of the driveway approach.

English was told by Austin Energy that an upgraded pull-box cover would have to be installed at her expense — $3,700. The couple completed the work Austin Energy required and finally, on Sept. 11, 2013, the parking spaces passed city inspections.

She barely had a few minutes to sigh with relief when an Austin code compliance officer showed up at the door.

Someone — likely a neighbor — called in a complaint to the city alleging that the English family had violated the percentage of impervious cover allowed on the property.

Impervious cover, in simple jargon, is anything that prevents rain from reaching the soil — concrete, asphalt, a structure itself.

English provided the code compliance officer with a series of documents — building permits for both the pool and the parking spaces and final inspection approvals all issued by the city.

Nevertheless, three weeks later the couple received a notice of violation — not just for the impervious cover concerns but now also for two alleged setback encroachments.

The couple immediately hired an attorney — not to confront the allegations, but to try and bring the property into compliance.

Despite hiring a surveyor, engineer and an attorney and attempting to rezone, replat and apply for variances, English said they remain in a bureaucratic Catch 22.

They allege they have been harassed by city employees, threatened with utility shutoffs and pushed to a breaking point.

Their second real estate attorney — Neal Meinzer, an expert at litigation — said it’s unconscionable what the couple has been through.

“The Englishes have tried to follow the rules. They got all the permits and passed inspections,” Meinzer said. “They tried to do everything right and relied on the city every step of the way. Now they find themselves in this position.”

They are seeking permanent injunctive relief as well as attorneys’ fees in their lawsuit.

Giving up on Austin

In the five months since the case was filed, Meinzer said little, if any, progress has been made in resolving issues with the city departments, so much of the case is in limbo.

A year ago, the English family packed up and moved to Houston for several reasons, not the least of which was the bad taste left in their mouth from dealing with the city of Austin.

For now the Austin home is occupied by tenants who signed a one-year lease. The Englishes filed their lawsuit in May after all of their efforts to rectify the situation failed. Their hope is that the litigation will prevent the city from forcing them to tear up all the improvements — approved by the city — that took four years to build.

Meinzer estimates that would cost another $150,000 to demolish everything and relandscape the property.

While the case looks pretty straightforward — English received building permits and passed final inspections for both projects — some startling details emerged in the aftermath.

The approved swimming pool plans indicate that the property met the requirements for “small-lot amnesty.” In other words, improvements on the English’s property could total 65 percent of impervious cover. The notation by city staff on the document is starred — not once, but twice. Moreover, English provided emails from a city employee to ABJ confirming the 65 percent allowance.

Deeper research, which the city did not conduct until later, shows that the English family’s lot exceeds the definition allowed for small-lot amnesty by a little over 100 square feet. Their property only qualifies for 45 percent impervious cover. Despite reassurances from city staff, another employee later determined the pool permit — and subsequent approvals — were issued in error.

Nevertheless, blame fell to Toria and Blake English. Whatever it would take to remedy the situation was their problem, they were told.

Even more conflicting information surfaced, as well.

The city determined that the swimming pool pump house encroaches on Austin Energy setbacks — even though Austin Energy personnel had surveyed the backyard and marked where the pool and the equipment could be located, Toria said.

Even more improbably, the couple discovered that the company that built the house had breached a required setback and did not provide enough parking based on the codes. Still, the city approved the construction and issued a certificate of occupancy. None of those issues were conveyed when they purchased the property, Toria said.

She doesn’t think they could sell the house, given all the pending issues, so they continue to make payments on two homes and hope for the best.

More unanswered questions

The past year has been spent trying to resolve the matters with various city departments and the Board of Adjustment — all without success.

The costly rezoning application — which was supported by city planners, according to public documents — also failed when the City Council voted 4-3 against the measure in June 2014. All but one of those Council members have since left office.

Now more than a year later, the property’s future still remains cloudy — and to top it off, Blake English said he’s worried what might happen if Austin follows through with two criminal cases related to the dispute and how that might affect his own livelihood or his family in the future.

In Austin, like many cities, code violations can carry criminal penalties — even jail time.

Beyond the case involving Toria and Blake English, what are the implications for thousands of residents who make this city their home? Is the city really that difficult to deal with? Toria and Blake English — and their attorneys — say yes.

The details of their experiences, their lawsuit alleges, “represent the epitome of misuse of administrative and regulatory power — first specifically authorizing construction and activity based on the city’s express direction, and after spending time and resources to ensure compliance with the city’s convoluted and frustrating administrative process, then being told that everything that had been represented by city officials with the power to provide such direction and approval was wrong and needed to be torn out.”

Toria English wonders how many more times she’ll have to watch the Austin skyline fade in the rearview mirror as she travels back and forth to Houston. Only rarely does she stop by the house she owns in what has become one of Austin’s trendy neighborhoods.

“That was my first home and now when I go there, I just shake,” she said.
Ellen Troxclair
Council Member District 8