Posted by: Patricia Salkin | October 22, 2017

TX Appeals Court Holds Developer’s Removal of Additions to Original Historic Residence Did Not Require a Demolition Application

Property owners sought approval of their proposed project involving renovation of the historic residence and new construction of a six-unit apartment complex on the undeveloped portion of the property. The City of San Antonio’s Historic and Design Review Commission (“HDRC”) and the City’s Board of Adjustment (“BOA”) approved the project and issued a Certificate of Appropriateness. The River Road Neighborhood Association and James A. Cullum, Jr. (collectively, “RRNA”) sought judicial review of the approval in district court, and obtained a summary judgment in their favor. The property owners and developers, Five Aces/SA, Ltd., Reilly Brothers Property Co., LLC, Asher Reilly (collectively, “Reilly”), and the BOA appealed the trial court’s judgment reversing approval for the project and withdrawal of the Certificate of Appropriateness.
On appeal, Reilly contended that the trial court erred in granting summary judgment for the RRNA because the BOA’s approval of the Certificate of Appropriateness for the proposed Project was based on a correct application of the governing UDC provisions, sections 35-451 and 35-610. Reilly further claimed that, because the Project only required a partial removal of portions of the structure that were limited to the non-historic, “noncontributing” additions made to the original historic residence, it was considered a “restoration” or “rehabilitation” and no separate application for demolition was required. In contrast, RRNA argued that the BOA’s approval of the project was an abuse of discretion, because the proposed work included “the removal of approximately one-third of the existing rear structure,” which constituted a “partial removal of a structure” or “partial razing” – requiring a separate application.
After reviewing the statutory text, the court found that the plain meaning of the terms “restoration,” “rehabilitation,” and “alteration,” as defined in the UDC, encompassed making structural changes to the existing historic structure, including removals of non-historic and noncontributing additions, as part of the overall restoration or rehabilitation process. The court further determined that the actions described in the definition of “demolition” suggested removal as an end in itself, not as part of the building’s restoration or rehabilitation. Thus, pursuant to section 35-611, the HPO was authorized to approve demolition of “non-historic additions” and “non-historic accessory structures” under the single Project application, without a separate demolition application and review process. The court held that this interpretation was supported by plain statutory language, and did not constitute a misapplication of the law. Accordingly, the court reversed the trial court’s summary judgment, and instructed the BOA to re-issue the Certificate of Appropriateness for the Project.
Five Aces v River Road Neighborhood Association, 534 SW 3d 598 (TX App. 7/12/2017)

This post was authored by Matthew Loeser, Esq.

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