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Duplex use to remain, says Board of Adjustment

Tuesday, May 25, 2004 by

BOA rejects neighbors' appeal from staff decision

The owners of a home at 313 W. 37th Street will be allowed to use it as a duplex in spite of objections from neighbors. Members of the North University Neighborhood Association had complained to the Board of Adjustment about a ruling from the staff of the Watershed Protection and Development Review Department allowing that use, but the board rejected NUNA’s request to overturn that decision. The property had come to the attention of the neighborhood after construction and renovation work for which the owners had received a city permit.

NUNA residents Colleen Daly and Scott Barnes based their appeal, in part, on the fact that the lot for the home is smaller than the 7,000 square feet required under the current code for a duplex. But the city’s position was that the home had formerly been used as a duplex and that all infrastructure for a duplex was still in place. Furthermore, a duplex use was allowed when the lot was platted and therefore grandfathered when the current minimum lot size requirement was imposed in 1950. “This lot has SF-3 zoning, which allows single family and duplex use. Therefore, this use conforms. Abandonment of use does not apply here, because the duplex use is a conforming use,” said Luci Gallahan of the WPDR. City code allows for normal permitted residential uses on 4000-square-foot lots established before 1946, even if the lots don’t meet the current minimum size. The lot in question is 6,250 square feet and was recorded in 1910, making it old enough and large enough to qualify for duplex use.

“We know at some point the duplex use was established,” said Gallahan. “Two electric meters were issued . . . the city’s tax office was taxing this property as a duplex in 1984.” And although the property’s previous owner testified that he had used it as a traditional single-family home, Gallahan said that was not relevant. “During the 23 years he owned the structure . . . even though he may not have rented out the second unit, the city continued to recognize this as a duplex,” she said. “This structure has maintained two kitchens, two living spaces and two meters. An inspection of the site by the city inspector verifies that this structure is still a duplex.”

Karen McGraw represented NUNA before the board, and argued that any right to a duplex was lost when the property was used as a single-family home. “We do not find any evidence in city records that a legal duplex has ever been permitted at this site at any time,” she said. “A legal duplex use has never been established. There wasn’t a duplex use. If there was it was abandoned, and it can’t be created under the sub-standard lot provisions.” The previous owner of the home told board members he had used it as a single-family home. “I never used the house as a duplex,” said Bob Godbaud. “The only remnants of a prior existing duplex were two (electric) meters.” Godbaud had allowed those meters to remain in order to avoid the expense of bringing the home’s electrical wiring up to current city code by consolidating the meters. “I did contact the utility department and have them declare the use single family, so I did not have to pay duplicate garbage and drainage fees,” he said.

The board was split on whether the duplex use should be allowed. The ruling of the department director troubled three board members, who sided with the neighborhood. “We have been sitting here year after year giving variances or listening to variances for duplexes on lots less than seven thousand square feet, and all of a sudden now you see this regulation that says if it’s more than four thousand square feet and it was permitted before 1946, then they don’t need a variance,” said Board Member Barbara Aybar. “That means we have been sitting here for years giving variances for people who didn’t need it. I have a big problem with that.” But Gallahan told Aybar that few of those variance requests matched the specific circumstances of the home in question, since they also included variances on minimum setback or height requirements.

Board Chair Herman Thun concluded that the staff had made the correct decision in allowing the duplex use. “If you can have a duplex . . . and it falls within that category . . . whether or not you choose to use the duplex opportunity, whether it be for two years, ten years, or twenty years, it’s irrelevant. It still can be a duplex. That’s the issue here,” he said. “I’m basing it on what can you do within a zoning ordinance on that lot. And whether you did it twenty years ago, five years ago or one year ago, or did not do it, it’s irrelevant. It’s irrelevant. You can have a duplex on that lot.”

In her rebuttal, NUNA representative Karen McGraw warned of a domino effect if the WPDR Director’s ruling were allowed to stand. “This is the first time the city has ever ruled on this substandard lot provision,” she said. “They are now undoing all of the neighborhood planning that’s occurred in the city by ruling this way, and this needs to end.”

Board Member Leanne Heldenfels made a motion to deny NUNA’s appeal, effectively upholding the decision of the WPDR Director and allowing the duplex use to continue. The vote was 2-3 in favor, with Board Chair Herman Thun joining Heldenfelds and Board Members Barbara Aybar, Betty Edgemond and Laurie Virkstis opposed. While a majority of the board voted against the department’s ruling, it takes a minimum of 4 votes to overturn the director’s decision. Therefore, under the Board’s rules, the director’s decision stands and the neighborhood’s request was rejected. NUNA has ten days to request a reconsideration and provide new evidence to support their case.

Codes, restrictions could govern Mueller tenants

The Mueller redevelopment project will rely on CCRs—codes, covenants and restrictions—as well as zoning to try to control the type of tenants to be invited into the project.

Keep the Land lost the battle over the sale of the 700-acre Mueller property. Members of the small group are equally opposed to the inclusion of big-box retail on the Mueller site. Last week, big-box retail was a topic of discussion at the Robert Mueller Municipal Airport’s Advisory Implementation Commission meeting.

A lack of a quorum made the meeting more of an open discussion than a formal proceeding. During a dialogue on the possibility of a Lowe’s or a Home Depot on a particular piece of commercial land on the edge of the property, Chair Jim Walker said that the zoning category for EC 1 at the northwest corner of the Mueller site had been tweaked last month to include construction sales and services, but it wasn’t any kind of guarantee that a home improvement retailer would be a new neighbor.

“It doesn’t mean that they’re going to be there, just because you allow it in zoning,” Walker told the small audience. “It may smell like it’s going to go there, but it does not mean that Lowe’s is going to go there.”

Ironically, the actual question about construction sales under the EC 1 zoning category came from Robert Singleton of Keep the Land. Singleton joked last week that he wished he had kept his mouth shut during the discussion of zoning conditions. The “Lowe’s question” raises the issue of how tenant mix will be controlled on the Mueller site. At each of the last four meetings, staff members have gone over zoning categories for each parcel in detail, reviewing and changing the conditions for each particular zoning category created for the Mueller site.

But the RMMA advisory commission has stopped one step short of using the zoning categories to exclude particular retailers. Singleton made a point of asking whether the inclusion of the construction services category would offer an opportunity for an Ace Hardware Store, a Breed and Co. or a Stripling Blake.

That’s just the kind of question that makes Walker uncomfortable. He cautioned Singleton not to single out a tenant as being “undesirable” for the development, especially when design guidelines could address community concerns. And Walker does not want to rule out tenants that could provide an economic engine to underwrite other goals on the site, such as affordable housing and civic space.

Architect Girard Kinney, who has been involved in Mueller plans for years, said he vehemently opposed controlling tenants by including or excluding a whole classification of them. “I think it’s an absurd idea,” said Kinney, who sits on the Design Commission. “The unintended consequence is that Lowe’s moves right across the street from Mueller, where you don’t have the control. It’s not a good idea and it does not achieve the objective at hand.” Commissioner Claire Morris also raised the issue that zoning conditions should be consistent.

Singleton argued that the Austin community clearly is opposed to a Lowe’s location, as noted in a recent petition with more than 2,800 signatures. That’s true whether it follows a traditional design or a more “community friendly” 4-story design shoehorned into a development. Now is the time to make the community’s position known, before the 700-acre property is sold to Catellus Development and is out of the city’s hands, Singleton said.

Walker said he would prefer to see opposition to social policies separated from land use issues. If the city is opposed to a wage policy or an investment strategy for a business, it’s important to consider that separately from the land use issue.

The Planning Commission will take up the Mueller property zoning this week. Although conditional overlays were mentioned as one way to control uses, Planner Pam Hefner said those restrictions are used sparingly. Instead, Hefner and Catellus’ Greg Weaver suggested that the city follow Stapleton’s approach and use CCRs to limit the uses or tenants on a property.

At the end of the meeting, Walker quoted an analogy he was given by staff on the Mueller project. The advisory commission’s role is one of oversight. It’s not the community’s role to regulate the color of the shutters, he said. Instead, it’s the advisory commission’s role to ensure the goals of the master plan are met and that substantive changes to the master plan do not compromise those goals.

“Somewhere between the color of the shutters and the 700 acres is where we want to be,” Walker said. “That’s what we need to find out.”

The Planning Commission is scheduled to discuss Mueller’s proposed zoning classifications tonight. .

Oops! . . . The Texas Commission on Environmental Quality (TCEQ) is not close to a final decision on whether to accept or reject a water pollution abatement plan submitted by KBDJ, LP for a planned rock-crushing plant in Hays County. KBDJ plans to build and operate a quarry on a site next door to the Ruby Ranch subdivision, which has alarmed neighbors as well as staff and board members at the Barton Springs Edwards Aquifer Conservation District. On Friday we reported that the district staff believed the TCEQ was on the verge of releasing a decision. However, TCEQ spokesperson Adria Dawidczik said yesterday that the agency’s staff is still “writing up the response to comments.” That response will include a preliminary decision, she said. But the public will have 30 days in which to comment and request permission to appeal the decision. If the commission denies the appeal, she said, “that would be the end of it.” If it is granted, it would go to the State Office of Administrative Hearings (SOAH). A hearings examiner at SOAH would decide whether the three commissioners who oversee TCEQ should grant a hearing on the matter. If the matter is submitted to SOAH, she said, it could take from three to nine months to have a hearing before that agency. So, this saga is likely to continue for at least a month and possibly for a year . . . Today’s meetings . . . The City Council Health Care subcommittee is scheduled to meet at 3:30pm in Room 304 of City Hall to hear an update on the creation of a county health care district. They are also expected to approve the establishment of an interim city/county healthcare subcommittee to work on standards of independence from conflicts of interest for the appointment of the Travis County Hospital District Board of Managers and to consider district transition issues . . . Tonight . . . The Planning Commission will be doing some extra work on the North University Neighborhood Plan and the West University Neighborhood Plan due to a notification error. The matter is scheduled to go back to the Council for a second reading on June 10. The commission is also scheduled to hear about zoning for Mueller. A joint committee of the Planning Commission and the RMMA Implementation Commission has been working on that item for several weeks . . . The Zoning and Platting Commission Robinson Ranch Committee will meet at 5:30pm in the 5th Floor’s small conference room to continue discussions about the zoning of the proposed annexation area . . . Firefighters vote official . . . Four members of the Austin City Council met on Monday to canvass the results of the May 15th election. Mayor Pro Tem Jackie Goodman, who presided in the absence of Mayor Will Wynn, asked that in the future Council members be provided the results of elections of interest to the city, even if they are not officially city ballot items. The Council was only posted to canvass the results of Proposition 1 on the city ballot that gave the right of collective bargaining to Austin fire fighters. Travis County Commissioners will canvass the results of hospital district proposition today. Austin Association of Professional Firefighters President Mike Martinez dropped by City Hall for the canvassing of the ballots. He’s assembling a team to begin negotiations with the City. “We’re looking forward to being able to sit down at the table and talk about the issues that are important,” said Martinez. “We’re putting our team together right now. I have four more appointments to make. We’re going to try to put a good team together, give them a little bit of training, and then come and sit down at the table.”.

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