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ZAP continues to wrestle with issues surrounding flag lots

Monday, November 2, 2009 by Kimberly Reeves

Attorney Terry Irion has returned to the Zoning and Platting Commission not once or twice in the last six months, but eight times on a single-family lot subdivision case – a sign of just how conflicted this commission remains over the issues surrounding the new proliferation of flag lots in Austin.

The case in question was to subdivide a half-acre lot on Lemonwood Drive. When the case was re-opened in October following an August hearing, Irion clearly was perturbed that the commission might re-open the hearing on the case with no clear indication of new issues from staff.

Flag lots are generally a rectangular parcel of land that is accessible only by a very long, narrow driveway leading from a main road.

“Before I make any presentation about the merits of this case, I think it’s fair to ask what is it, what new information it is that you need to hear about this case, because we have received no information from the staff that there are any new issues,” Irion asked the commission. “What is the scope of this reconsideration? This is the eighth time we’ve been here. How many more times do we have to do this? We meet all the ordinance requirements, and it’s been fully vetted.”

“Mr. Irion, I really don’t want to respond to your question, but I will,” a stern Chair Betty Baker told him. “You will remember that we formed a subcommittee to study the flag lot issue. This is a flag lot issue, so if there was reason for you to be concerned, you should have been at those meetings.”

“The reason I was not at those meetings is that, whatever this commission decides to do in the future, it will not affect my client,” Irion countered.

“I don’t disagree,” was Baker’s swift rebuttal. “But you have to understand, there is no one here much more frustrated than I am, to be beat over the head with this.”

This means that no matter what the current status of flag lots, the issues surrounding them remained unresolved among the commissioners on ZAP. The hearing on the Lemonwood case was closed, as of Aug. 4. Baker did agree, however, to a limited discussion the Lemonwood case: one person in favor of the subdivision and one against.

In his comments, Irion took a much more measured tone on his case, noting that it met all city-designated standards for subdivision. He noted that division of a lot meant stricter standards on his client.

While the neighborhood, platted in 1951, was allowed 45 percent impervious cover, the combination of new standards and an easement put the new lot at 25 percent impervious cover, a far larger sacrifice than most homes in the neighborhood.

Shelley Zent, who owns adjacent property, represented the neighborhood’s concerns. She noted the violations to the fire code observed on the lot, which included both a less-than-adequate turn radius and unobstructed access. Hhowever, the city sometimes waives such concerns if the new owner agrees to provide a proper sprinkler system on the property.

Even after a number of flag lot subcommittee meetings, some ZAP members clearly were disturbed by the findings in the case. Commissioner Donna Tiemann, in particular, asked why the fire department had waived requirements on the flag lot, and, in the end, asked that someone visit with the commission on the issue.

Tiemann went so far as to beg Baker to postpone the case, since no one with the fire department was present to explain the rationale on agreeing to waive certain fire code standards on various lots, including flag lots.

“I’m truly frustrated that we went through this exercise,” Tiemann said. “If this is something routinely waived, and not something looked at, I want to understand this better. I truly believe this is a health-safety issue.”

Eventually, Baker asked legal counsel, which had recommended the subdivision, whether the commission had any grounds to deny the case. The answer was “no.” Still, the commission split its vote, unable to find common ground. Baker said no one on the commission wanted to vote against the subdivision more than she did, but it was impossible for a commissioner to defy its legal counsel.

“I hope you understand the turmoil and frustration of this commission. We’re doing our dead-level best,” Baker said at the point of the vote. “We want it to be better, and we want it to be safer. And we’re going to see that come with rule changes and with process changes.”

Much to Irion’s chagrin, the final vote on the case was 3-3, with Commissioner Gregory Bourgeois recusing himself. That meant no recommendation.

During post-vote discussion, Baker warned that she, and her colleagues, were a hard-headed bunch when it came to final votes. She asked that city staff be present at the first meeting in November to discuss the flag lot issue, with the goal of breaking the deadlock surrounding the case.

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