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Legal questions mean subdivision case will return to ZAP next month

Wednesday, May 13, 2009 by Austin Monitor

The Zoning and Platting Commission ended discussion of the re-subdivision of a pair of 70-year-old lots last week after a brief private session with city attorneys.

A consultation with legal staff is rare for ZAP, but the subdivision of 5511 Woodview Ave. was enough to send everyone behind closed doors. When the discussion was done, Chair Betty Baker pulled the case, and Commissioner Keith Jackson requested the entire history of the lot, which was platted in 1927 and subdivided in 1935. A site plan was filed on the lot in 1972, along with deed restrictions.

Specifically, Jackson requested the plat, as it was originally reviewed and recorded, and any and all subsequent modifications and amendments. The documentation is expected back at Zoning and Platting Commission on June 16.

City staff recommended the action, which would have divided two lots into four lots on Woodview Ave. Three of the four lots would be about 10,000 square feet, with the fourth being dedicated to a larger flag lot.

Planner Sylvia Limon said city staff had reviewed the plats and had found them to meet the city’s land development regulations. The lots had included several other plats along the way, and now a request to re-subdivide. At the time the land was platted, the original deed restrictions were minimal, Limon said.

“The original deed restrictions are fairly minimal, established shortly after the land was originally subdivided,” Limon said. “Talking to the property owners in the area, however, there were several amendments of the plats.”

Did the latest deed restrictions go with the current lot? It wasn’t completely clear.

Commissioner Clarke Hammond, handling past documentation on the lot that was not included in the back-up materials for the agenda, noted that the site plan for the Heritage Square Condominiums, to be located on the site, would create 18 units. It would appear the 1972 deed restrictions would apply to the proposed development.

The total land area is just under an acre. Jackson noted a design that had three lots facing the street and one lot tucked behind them. A number of similar lot subdivisions exist on the streets in the area.

Agent Jim Bennett said 8 to 10 different parcel numbers were associated with the plat in question. Using a map, Bennett noted that a number of other parcels in the area had been split over the course of the last four decades.

“We are meeting all the requirements of the state law and the city law of the subdivision process,” Bennett said. “We don’t think we are in violation of the subdivision rules of the city to request that you approve the platting of lots of about 10,000 square foot each.  A lot of the lots in there are larger, and then some of the lots have about the same square footage.”

That map did not impress the commissioners. Just because everyone else was doing it didn’t mean that this owner should get a pass.

“What I think I heard you say is that the owner of these two lots is knowingly, willingly, deliberately and blatantly violating the deed restrictions, as many of his neighbors have done for many years,” Jackson said.

In their protest of the re-subdivision, neighbors admitted some lots might have been re-subdivided in the neighborhood without the enforcement of the deed restrictions. Those just slipped by. But it should be clear, now, that this re-subdivision was in violation of conditions put on the property.

Al McMurtry, who has lived in the neighborhood since 1977, was counsel when the signatures were gathered on the deed restriction rewrite in 1972. McMurtry said the desire for single-family housing – rather than a condo project or retirement home – was a clear point of discussion when the deed restrictions were approved.

The owner of the property said that sections in state law prohibit re-platting without vacation. This property clearly fell into that category, McMurtry said. Each and every plat on the property needed to be vacated under state law.

Bennett countered that claim, arguing that the high number of lot splits on the street voided the original deed restriction requirements. He argued the development plan for the houses were far from the size to trigger the McMansion ordinance. The development would comply with state law and city codes.

Those comments were followed by the closed-door session with city legal staff. The full history of the lot, it appears, will be discussed next month.

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