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City can be pawn in conflicts between neighbors

Monday, July 20, 2009 by Michael Mmay

Last week’s Board of Adjustment meeting provided a window into how city codes can be used as a weapon by neighbors who have other disagreements with each other — a practice that is tacitly encouraged by the city’s inconsistent code enforcement process.

 

A dramatic example of this came during last Monday’s meeting, when Linda Mackey Applewhite came to the board to ask for a variance for her shed, which was placed 2 ½ feet into the five-foot setback bordering her yard. The city had been notified about the infraction by Applewhite’s next-door neighbor, Isam Bandak.

 

Bandak approached the stand to testify, explaining that Applewhite operates a child care facility, and the sounds of the children occasionally bothered him and his wife, who don’t have any children themselves. He said that he never wished to make her business an issue, and said that they were rarely bothered by it because they weren’t home during the day. Despite this, he pressed on, noting that the shed was much larger than the one it replaced, and had windows on three sides, so he presumed his neighbor might be expanding her business. “I am worried about increased noise and reduced property values as her business expands,” he explained.

 

Applewhite spoke next, explaining she was allowed to take care of up to six children at her home. Then the older woman talked about how her neighbor’s complaint had affected her. “I don’t understand how one person can complain and do this to me, when no one else seems bothered by it,” said Applewhite. “I’m trying to improve my home, and make it safer for the children. I keep my garden tools in there so they are out of the way. I live alone, and it has already cost me a lot of money to take the time off to come here. It will be very expensive for me to move it.”

 

The Board of Adjustment needs a concrete reason, or “finding,” to grant a variance. But most of the board seemed to recognize the absurdity of the situation. Chair Frank Fuentes made it clear. “I feel your pain,” he said. “But we need findings to grant a variance, and we can’t consider economic reasons. That’s against the law.”

 

Greg Smith made his sympathy plain. “I don’t see any hardship to grant a variance,” he said ruefully. “But I noticed that your neighbor had some contradictions. He said he didn’t know you had child care for two years, and then he complains about this.”

 

The BOA voted to deny the variance. Fuentes told Applewhite to go back to the subcontractor, tell him he put the shed in the setback, and ask him to move it for free. If that doesn’t work, she’ll likely have to pay several hundred dollars to have it moved.

 

It’s hard to understand how the city benefits by forcing a self-employed, older single woman to pay to have her shed moved two feet. It’s also difficult to see what the neighbor gained, since moving the shed will not affect how many children she can take care of in her home.

 

But the fact is, the code enforcement process is used all the time by neighbors who have completely unrelated problems with each other. Jerry Rusthoven, the manager of Current Planning, in the Neighborhood Planning and Zoning Department, says that the city tries to take care of code enforcement before things are built, but in older neighborhoods code enforcement is largely complaint driven. “It’s always been an issue,” he says. “At first it was about funding. But the city has made code enforcement into it’s own department now, and there are more inspectors and more trucks now. But it’s a double-edged sword, from a citizen’s perspective you could have too much code enforcement. Austin has a live and let live attitude.”

 

Except when it doesn’t. Rusthoven said that he’s heard cases of realtors who hope to increase the price of a home they are selling, so they call in to complain about code violations up and down a street to force neighbors to cut their grass or move carports out of the setback. Many of the problems revolve around setbacks, which are designed to give neighbors space from each other and to reduce the risk of fires spreading. “Although, the trend is towards smaller setbacks to increase density,” noted Rusthoven.

 

The city finds itself in a catch-22. It could enforce the code uniformly, and end up annoying a lot of people, or it can follow up on complaints, and become a pawn for feuding neighbors. “It’s unfortunate that people use the codes to get back at each other,” he said. “Especially in older neighborhoods, if you look closely enough at any property, you’re going to find code violations.”

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