There has been some discussion lately about how CodeNext handles nonconforming properties, ones that were built before CodeNext and don’t comply with all of its requirements. Some people have claimed that CodeNext seeks to phase out all nonconforming properties and that homeowners will be required to obtain a certificate of occupancy simply to live in their homes.
I’ve read the CodeNext section on nonconforming properties and I do not believe that is the case. Below I’ll cover some of the concerns I’ve heard.
The new code is not that different from the current city code: nonconforming properties are grandfathered, but if a property owner wants to make significant alterations there are some limitations. This is true of the current code too: our neighborhood has fought property owners in the past who tore down noncompliant structures and then attempted to rebuild without complying with current code.
Certificates of occupancy
Regarding the concern that homeowners will be required to obtain a certificate for their homes, Section 23-2F-2030 allows the city to provide a certificate for older nonconforming structures “to avoid the unnecessary loss of residential housing opportunities available to Austin residents and reduce the costs to homeowners associated with remedying longstanding code violations which do not threaten public health and safety.” Nowhere does it say a certificate is required for a nonconforming home and in fact this mention of a certificate is not even in the same section of code that deals with nonconforming properties. It instead gives the city discretion to allow homeowners an administrative relief to ensure they do not lose their home.
(Consider for a moment: do you think the city would want to anger thousands of voters from east Austin to Tarrytown by requiring them to get city approval just to remain in their existing homes and to hire the additional staff that would be required to review those applications?)
Residential buildings have special protections
Section 23-2G-1070 covers altering a nonconforming property and states “Recognizing the costs associated with bringing existing structures into compliance with current regulations, this section allows limited alterations of nonconforming structures to occur without triggering full compliance with this Title.”
This section defines an exemption for residences from the new code as long as no more than 50% of the walls are torn down (preventing the expansions we’ve fought in the past where developers kept a single wall then rebuilt as large noncompliant rental duplexes), the floor elevation of the original structure doesn’t change more than one foot in height (the new structure can be a different elevation), and any part that is demolished is rebuilt to be conforming. This section doesn’t limit the increase in size of the house as long as it’s a single-family residential use and the new part of the structure adheres to current code.
Commercial buildings are encouraged to eventually redevelop
The city wants to encourage new commercial development to conform to the pedestrian-friendly designs of CodeNext. For example if a commercial building removes more than 50% of its exterior walls, it must also remove any head-in parking spaces off major roadways. This encourages the eventual redevelopment of the aging car-based strip centers along Guadalupe into pedestrian-friendly buildings close to the sidewalk and parking in the rear.
If you leave your house for 90 days, the city won’t make you tear it down
This fear was raised elsewhere: section 23-2G-1060 states that “If a nonconforming use is discontinued for 90 or more consecutive days, then that use is abandoned and may not be renewed or reestablished” with an exception for “A seasonal discontinuance of a use” or for maintenance/repair. It’s worth clarifying with the city what this means, but I think the key is that your single-family “use” hasn’t been discontinued just because you are away. Until we have an answer from staff I would not jump to the conclusion that the city wants to force you to rebuild your house under current code if you take a long vacation.
I hope that clears up some misconceptions. If you find any part of the section on nonconforming properties concerning, post a comment below and we’ll try to clarify it. If we can’t, we can reach out to city staff to get answers.