ITEM04 C15-2025-0041 ADV PACKET NEW INFO PART2 APPELLANT — original pdf

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Steve Leitch, Deputy Building Official Brent Lloyd, Development Officer, Development Services Department Keith Mars, Director of Development Services Dear Austin City Officials, I am writing to request that the City of Austin immediately address the significant and well‑documented code violations at 6706 Bridge Hill Cove. After nearly two years of correspondence, public testimony, photographic documentation, and admissions from City officials, it is now indisputable that the 2022 permit and 2025 revision plan for this project were issued in error under the Land Development Code and that the City has not taken the corrective action required by law. The purpose of this letter is to present the full factual and legal basis for revoking the 2022 permit and 2025 revision plan, to address the City’s shifting rationales for declining enforcement, and to formally request written action from the Building Official. ----------------------------------------- 1. The Pool, Single-Level Patio and Covered Patios on Two Levels Were Completely Demolished, and a Second Story was Added on Top of a First Story in the Required Setback ----------------------------------------- For more than a year, I have attempted to explain that the original patio the permit holder claims to be “modifying” was fully demolished. I now possess irrefutable photographic evidence that the patio and all supporting elements were removed in their entirety. In obtaining these photos and reviewing the subsequent form survey of the newly poured foundation, it became clear that the demolition was even more extensive than I originally understood. Not only were the single level patio and pool demolished, but the covered patios along the back of the house on both the first and second levels were also fully removed and replaced with new living space constructed inside the required setback on three levels (Basement, 1st floor, second floor). 25-2-963 (B)(2) - Replacement or alteration of an original foundation may not change the finished floor elevation by more than one foot vertically, in either direction. (EXHIBIT A) – Photo showing a man standing on the foundation forms. The image clearly shows that the surrounding earth had been excavated to a depth approximately equal or greater than the full height of the individual, and that the retaining wall forms were being prepared at the base of the excavation. The scale provided by the man’s height makes evident the significant depth of the excavation and confirms that it exceeds the allowable one-foot limit under Code. ITEM04/1-NEW INFO PART2-APPELLANT(EXHIBIT B) – Pre‑demolition aerial photo (EXHIBIT C)– Post‑demolition aerial photo. This photo shows the entire original patio structure and covered patios had been fully removed, leaving only exposed soil in their place. This image also captures the presence of a large excavator and bulldozer on site. This view confirms that the demolition and excavation were total, far exceeding what would be consistent with a mere “modification” of an existing noncomplying structure. (Exhibit D) - Aerial photo of new foundation poured at rear and a new second story with a roof at the front of the house, in the setback. (Exhibit E) - Form Survey for new foundation (Exhibit F) - New foundation 25-2-963(B)(4) If a noncomplying portion of a structure is demolished, it loses its noncomplying status and can only be rebuilt in compliance with current code. Given the clear evidence of full demolition and the plain language of 25-2-963(B)(4), the structure’s noncomplying status was extinguished as a matter of law and cannot be revived. Separate from the basement, first and second level expansions at the rear of the home where full demolition occurred, the permit holder constructed a new second-story roof/patio structure along approximately 17 linear feet of the front portion of the home that encroaches into the five- foot setback. 25-2-963 (F)(1)(b) expressly provides that “the modified portion of the noncomplying structure may not exceed the height of the existing noncomplying structure.” The noncomplying portion of the structure along the setback was indisputably one story, which means that a second story addition or extension is not permitted under any circumstance. In his September 29, 2025 email, the Building Official attempted to justify the second story by asserting that the modified portion of the building “Is not greater in height than the existing noncomplying portion of the building” (Exhibit G) September 29 Email This is a plainly flawed interpretation of 25-2-963(F) because the portion of the structure located within the protected setback was unquestionably one story, and a second story was added. There is no conceivable reading of the Code under which converting a one-story portion of a structure into a two-story portion of a structure does not constitute an increase in height. This violation alone independently invalidates both the 2022 permit and the 2025 revision plan. These are textbook grounds for concluding the 2022 permit was issued in error under the LDC. ITEM04/2-NEW INFO PART2-APPELLANT ----------------------------------------- 2. Permit Holder Gave False and Misleading Information to the City ----------------------------------------- At the November 10, 2025 Board of Adjustment hearing, the permit holder testified under oath that: • “The height of the patio was 10 feet above the actual foundation” • “The foundations didn’t change” • “The finished floor foundations remained the same at ground level” Photographic evidence now proves these statements false. At the November 10 BOA hearing, the building official publicly acknowledged that the submitted plans were deceptive and misleading and did not disclose the full scope of demolition. The permit holder continues to provide inaccurate, misleading information. While under oath he also stated that the “wine room/storage” area previously existed. It did not. Aerial photographs show bare ground in that exact location following demolition, and there is no corresponding form survey or inspection record for any foundation associated with this area, making this construction illegal for multiple reasons. (EXHIBIT G) Photo of new foundation for wine/storage area (EXHIBIT H) Photo of formwork for the patio above wine room/storage area that extends into the required 10-foot setback. ----------------------------------------- 3. The Building Official’s Justifications Have Shifted Repeatedly ----------------------------------------- The City’s explanations have changed multiple times: • **December 9, 2024 –** The City claimed the patio “represented a noncomplying structure undergoing modifications” and was “becoming less noncompliant.” EXHIBIT F – 12/9/24 email •**September 23, 2025 –** The building official wrote that only part of the patio was removed and thus the structure did not lose its noncomplying status. QUOTE from DSD Staff Response Letter, Page 2 (3): As recently as September 23, 2025, DSD staff correctly summarizes 25-2-963(B)(4), “When portions of a legally non-complying structure are removed, the portions lose their non- ITEM04/3-NEW INFO PART2-APPELLANT complying status. However, the portion of the legally non-complying structure that is not removed maintains its noncomplying status.” Staff went on to say, “The portion of the deck closest to the property line was removed and did lose its non-complying status, which means it cannot be rebuilt. However, the remaining portions that have been maintained are permitted to remain as legally noncomplying and may be altered in compliance with applicable criteria in LDC 25-2-963" QUOTE from DSD Staff Response Letter, Page 2 (4): “The portion of the deck that exists today was part of the original patio, so it maintained its noncomplying status.” EXHIBIT G - 9/23/25 DSD Response Letter At the November 10 BOA hearing Board Member Von Ohlen asked the building official to explain the justification for the 2022 permit. Instead of answering the question with the justifications he has given over the past almost two years, the building official pivoted to claiming the permit holder’s interpretation of §25‑2‑963(F) now justified everything. This follows a pattern of accepting implausible explanations from the permit holder. On September 9, 2024, Steve Leitch sent a written notice to Warren Konkel identifying multiple inconsistencies and potential code violations uncovered during the City’s review. In that letter, he listed several changes that were not shown in the approved plans, including an expanded basement and garage, altered window sizes and locations, and an expanded balcony and a trellis above the pool deck. Mr. Leitch specifically noted that a portion of the basement projection north and east from the footprint of the residence is not depicted on either the 1997 or the 2021 surveys, “and it is also not depicted in the plans which were approved” as part of 2022 permit. He stated, “This area may represent additional impervious cover.” The letter further explained that the 2021 survey and the plans approved under the permit depict a driveway extending farther west along the side of the home than shown in the 1997 survey. The current construction included an addition of a four-story structure over that portion of the driveway – a portion that did not exist on the 1997 survey. Because this driveway expansion and the structure built above it were not present in 1997, Mr. Leitch concluded that this area “appears to represent additional impervious coverage from the 1997 survey” that was inaccurately presented as existing impervious cover in the 2022 submitted plans. Mr. Leitch included a photographic comparison of the 1997 survey with no dots in that area and the approved plans that show that area as existing IC. When questioned, the permit holder explained these discrepancies by asserting that the professional surveyor had simply forgotten to mark the impervious cover in that area on the 1997 survey and that the newly constructed room in the front of the house previously existed, despite photographic evidence to the contrary. ITEM04/4-NEW INFO PART2-APPELLANT Although Mr. Leitch admitted to me that the permit holder’s explanations were “fishy,” he still accepted them and allowed these unplausible justifications to stand. He also informed the permit holder that he would allow additional impervious cover based on a 2001 permit that had expired without ever receiving inspections. This decision is legally unsupportable, as an expired, uninspected permit cannot legally confer grandfathered impervious cover under any circumstance. Exhibit H – September 9, 2024, Notice from Steve Leitch to Warren Konkel Exhibit I – Photos that show the expansion of the room in the front of the house. ----------------------------------------- 4. The Permit Holder’s Reliance on §25‑2‑963(F) Not only is the permit holder’s reliance on (F) unlawful, but even under his own calculations the math does not support the extensions he claims; the numbers simply do not add up once accurate, documented dimensions are applied. ----------------------------------------- Key points: • Nothing existed at the basement level to “extend.” • Section F cannot be used to override demolition rules. • Section F cannot be used to create new levels in a setback. • Covered patios that were completely demolished and rebuilt as new living space cannot be counted as grandfathered for extension purposes. • Even the permit holder’s own math does not support compliance. (Exhibit J) - Inaccurate, inflated measurements used to justify claimed extension rights under 25-2-963 (F) ----------------------------------------- 5. City Attorney’s Office Incorrectly Claims BOA Lacks Jurisdiction ----------------------------------------- The Law Department is now advising that the BOA has no jurisdiction to rule on whether the 2022 permit was issued in error. This contradicts the explicit language of the Land Development Code: • BOA may hear appeals of decisions, interpretations, and **actions* of the building official— including permits issued in error. ITEM04/5-NEW INFO PART2-APPELLANT If the City simultaneously refuses to act administratively AND blocks BOA review, there is **no mechanism** for correcting a permit issued in error—an outcome that violates the Code and due process. ----------------------------------------- 6. Legal Requirements Under §25‑12‑111 ----------------------------------------- Under §25‑12‑111, a permit issued in error **must** be corrected or revoked. A permit issued in error is one: • Based on inaccurate or misleading plans • Based on false representations • That violates any requirement of the LDC The building official has acknowledged that the submitted plans were misleading, and the evidence conclusively proves that the single-level patio and covered patios on two levels were completely demolished, and that a second story was added on top of a first story within the required setback. These facts independently and collectively satisfy every criterion for an erroneous permit under the Code. Furthermore, the 2025 revision plan compounds these errors by relying on inaccurate and inflated “existing” dimensions to justify extensions that are mathematically and legally unsupportable. The 2022 permit and subsequent revision plan were issued in error. The evidence is overwhelming; the admissions are on record, and the Code is clear. For these reasons, I respectfully request immediate enforcement action, including the suspension of all further construction at 6706 Bridge Hill Cove pending correction of these violations. I also request written determination that the 2022 permit was issued in error and a directive requiring the project to be brought into full compliance with current code. Allowing these errors to stand would set an extremely damaging precedent for the City of Austin. As a Board of Adjustment member observed, future applicants will inevitably point to this case and argue that similar noncompliance must be allowed elsewhere. Even more concerning, the permit holder himself stated that he believed he could demolish the entire back of his house and still be entitled to rebuild it inside the setback and obtain approval later. This approach invites applicants to build first and seek approval later, undermining the integrity of the Land Development Code and eroding protections it is designed to provide. To preserve the purpose and enforceability of the Cod, and to protect the rights of affected neighboring property owners, I respectfully request written action correcting these errors and restoring compliance with current Code. ITEM04/6-NEW INFO PART2-APPELLANT Thank you for your time and attention. Christy May List of Exhibits: Exhibit A: foundation forms photo Exhibit B: Pre-demolition aerial photo Exhibit C: Post-demolition aerial photo – shows bare ground remained Exhibit D: New foundation and added second story aerial photo Exhibit E: Form Survey Exhibit F: New foundation – shows cut from excavation, approximately 6-8' Exhibit G: September 29 Steve Leitch email, flawed interpretation Exhibit H: Photo of new foundation for Wine Room/ Storage Exhibit I: Photo of framework for patio above wine room. Extends into required setback Exhibit J: December 9, 2024 email from building official Exhibit K: September 23, 2025 DSD Response letter Exhibit L: September 9, 2024 Notice from Steve Leitch Exhibit M: Photos that show excavation and expansion of the basement room in the front of the house Exhibit N: Inaccurate, inflated measurements used to justify claimed extension rights ITEM04/7-NEW INFO PART2-APPELLANT EXHIBIT A ITEM04/8-NEW INFO PART2-APPELLANT ITEM04/9-NEW INFO PART2-APPELLANT EXHIBIT B ITEM04/10-NEW INFO PART2-APPELLANT Oldest image: ITEM04/11-NEW INFO PART2-APPELLANT ITEM04/12-NEW INFO PART2-APPELLANT EXHIBIT C ITEM04/13-NEW INFO PART2-APPELLANT Demo initiated for new project: ITEM04/14-NEW INFO PART2-APPELLANT EXHIBIT D ITEM04/15-NEW INFO PART2-APPELLANT New pour at rear and new story with roof at front: ITEM04/16-NEW INFO PART2-APPELLANT EXHIBIT E ITEM04/17-NEW INFO PART2-APPELLANT ITEM04/18-NEW INFO PART2-APPELLANT EXHIBIT F ITEM04/19-NEW INFO PART2-APPELLANT ITEM04/20-NEW INFO PART2-APPELLANT EXHIBIT G ITEM04/21-NEW INFO PART2-APPELLANT ITEM04/22-NEW INFO PART2-APPELLANTEXHIBIT H ITEM04/23-NEW INFO PART2-APPELLANT ITEM04/24-NEW INFO PART2-APPELLANT EXHIBIT I ITEM04/25-NEW INFO PART2-APPELLANT ITEM04/26-NEW INFO PART2-APPELLANT EXHIBIT J ITEM04/27-NEW INFO PART2-APPELLANT From: Leitch, Steve <Steve.Leitch@austintexas.gov> Sent: Monday, December 9, 2024 9:53 AM To: Terry Irion <t Cc: Christy May Subject: RE: 6706 Bridge Hill Cove >; Lloyd, Brent <brent.lloyd@austintexas.gov> ) <christysmay@hotmail.com> I will try to explain our reasoning with respect to the setback encroachment. From the perspective of the Plan Review division, the patio/deck presents as a noncomplying structure undergoing modifications and becoming less noncompliant with respect to its side setback. 25-2-963, B(4) states that portions of a residential structure lose their noncomplying status when demolished. Yet 25-2-963, B(2) contemplates replacement of an original foundation and altering the finished floor elevation. In addition, 25-2-963, B(1) contains requirements for demolition with respect to noncomplying structures which are more nuanced than the simple declaration in section B(4). Since LA zoning does not regulate either, Maximum Building Coverage, or Maximum Floor- to-Area ratio, it is not evident that the presence of habitable space in the basement of the patio structure constitutes a violation of code. Again, what we see in Plan Review is a noncompliant structure becoming less so with respect to its setback. Steve Leitch Division Manager, Expedited Plan Review Development Services Department 6310 Wilhelmina Delco Dr., Austin, TX 78752 512-978-1676 | cell: 512-439-9934 Steve.leitch@austintexas.gov DevelopmentATX.com ITEM04/28-NEW INFO PART2-APPELLANT EXHIBIT K ITEM04/29-NEW INFO PART2-APPELLANT 3) DSD Staf f Response: When portions of a legally noncomplying structure are removed, those portions lose their noncomplying status. However, the portion of the legally noncomplying structure that is not removed maintains its noncomplying status. The portion of the deck closest to the property line that was removed did lose its noncomplying status, which means that it cannot be rebuilt. However, the remaining portions that have been maintained are permitted to remain as legally noncomplying and may be altered in compliance with applicable criteria in LDC Sec. 25-2-963. Second, permit history and restrictions. (Exhibit A) The original patio was grandfathered. A permit issued in 2001 allowed for modification of that patio. On September 9, 2024, a city official cited a note in the City records associated with that permit: “The portion of the wood deck that is encroaching into the side yard must not be removed to maintain the noncomplying status.” 4) DSD Staf f Response: The portion of the deck that exists today was part of the original patio, so it maintained its noncomplying status. Only the portion that was demolished lost its noncomplying status. If the remaining portion that exists within the setback today is later removed, then it will lose its noncomplying status, too, and no further encroachments will be permitted in that portion of the setback. Additionally, a 1997 survey specifically called out that this part of the deck “must remain” to stay in compliance. (Exhibit B - 1997 survey and 2021 survey) 5) DSD Staf f Response: The note was handwritten onto a copy of the survey, not contained in the surveyor’s notes, and states that the deck “will remain.” The portion of the deck to which the note refers was in the plat- designated five-foot setback adjacent to the property line and reflected a general understanding that this portion had to remain to qualify as legally noncomplying. It is possible that, at the time the note was written, the more restrictive 10-foot zoning setback was not considered applicable based on the plat-designated setback. ITEM04/30-NEW INFO PART2-APPELLANT The 2001 permit allowed for adding decking, but the owners built beyond what that permit allowed, further expanding square footage into the setback. This project never underwent ITEM04/31-NEW INFO PART2-APPELLANT EXHIBIT L ITEM04/32-NEW INFO PART2-APPELLANT ITEM04/33-NEW INFO PART2-APPELLANTITEM04/34-NEW INFO PART2-APPELLANTITEM04/35-NEW INFO PART2-APPELLANTEXHIBIT M ITEM04/36-NEW INFO PART2-APPELLANT ITEM04/37-NEW INFO PART2-APPELLANT EXHIBIT N ITEM04/38-NEW INFO PART2-APPELLANT FLAWED EXTENSION CALCULATIONS The central argument presented by Konkel and his team on November 10 is that §25-2-963(F) allows for a 25-foot extension of a noncomplying structure. This new evidence eliminates that argument entirely. Below is the level-by-level analysis showing why: Exhibit A — Konkel’s Basement-Level Diagram (Used Nov. 10 BOA Meeting) This slide shows Konkel’s claim that the basement level qualifies for a 25’ extension under §963(F). The diagram labels the “Existing structure" at 60'8", despite the fact that no basement existed along the setback prior that Konkel to construction. This exhibit helps demonstrate ITEM04/39-NEW INFO PART2-APPELLANT misrepresented the grandfathered baseline from which any extension could legally begin. A. Level 0 (Basement Level) • There was no basement along the setback or property line prior to construction. • Therefore, there was nothing to extend under §25-2-963(F). • The basement is entirely new construction and must comply with the 10-foot setback. This alone defeats their extension theory under subsection (F) for the trellis, patio, and upper levels. ITEM04/40-NEW INFO PART2-APPELLANT B. Level 1 (Main Level)1. The Actual Grandfathered Length, according to the 1997 survey, Is 48.5 ft — Not 60 ft Exhibit A also asserts that the first level qualifies for a 25’ extension, again using 60'8" as the grandfathered length. The newly obtained photos and updated survey show that the patios counted in that 60'8" were demolished and replaced with new living space, meaning the 60 ft figure is factually impossible. Konkel’s team and Alyssa Mayfield used 60 ft as the “existing grandfathered wall,” but the survey shows the true grandfathered portion is 48.5 ft. ITEM04/41-NEW INFO PART2-APPELLANT • Half of 48.5 ft = 23.75 ft of possible extension (if subsection (F) applied at all — which it does not). 2. The Patios Were Demolished — So F Cannot Apply Even if subsection (F) theoretically allowed extension of a noncomplying structure, it cannot apply where that structure: • No longer exists, and • Was replaced with new living space on a new foundation. 3. Even Under Konkel’s Incorrect Theory, the Numbers Don’t Work If the trellis is considered an extension of the first floor, then: • The 9 ft of new living space built where the patio used to be must count against the 23.75 ft maximum. • 23.75 ft – 9 ft = 14.75 ft, not 25 ft. Therefore: • Much of the trellis is illegal even under Konkel’s own theory. C. Level 2 (Second Floor) Exhibit B - This slide that was also included in the permit holder's presentation on November 10, claims second-floor “existing/grandfathered” length was 43 ft. the Although the second-story addition was approved under the 2022 permit, that approval was itself a violation of §25-2-963(F)(1)(B), ITEM04/42-NEW INFO PART2-APPELLANT which prohibits increasing the height of a noncomplying one-story structure. Because subsection (F)(2) is conditioned on compliance with subsection (F)(1), the permit holder cannot rely on subsection (F)(2) to justify the extension in the revision plan. This violation alone requires immediate suspension and review of the revision plan. Additionally, the updated survey and prior construction photos show the actual noncomplying second-floor length was closer to 31 ft. This exhibit demonstrates the mathematical impossibility of Konkel’s claimed 25’ extensions—their analysis begins from an inflated and inaccurate baseline. 1. The Actual Grandfathered Length Is ~31 ft • Half of 31 ft = 15.5 ft maximum extension. 2. Konkel’s Plans Used 17 ft for the Front Extension • This already exceeds the legal maximum by itself. 3. Additional New Second-Floor Living Space ITEM04/43-NEW INFO PART2-APPELLANT The new living area constructed where the upper patio used to be extends: • Another 8.5 ft beyond the old footprint. 4. Total Extension Claim = 25.5 ft • 17 ft (front) + 8.5 ft (new second-floor living space) = 25.5 ft, • Which is 10 ft more than §25-2-963(F) would ever allow, even if it could be legally applied. There is no level for which Konkel’s interpretation produces a legal outcome. ITEM04/44-NEW INFO PART2-APPELLANT ITEM04/45-NEW INFO PART2-APPELLANT ITEM04/46-NEW INFO PART2-APPELLANT