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When in doubt, Board of Adjustment postpones

Thursday, December 17, 2009 by Charles Boisseau

Members of the Board of Adjustment have two primary choices when a property owner comes before them asking for approval for a variance from city zoning codes to add on to their homes, build a garage or a car port, or otherwise change their property in a way that for some reason city codes don’t permit. They can:


  1. Grant a variance, sometimes requiring a property owner agree to certain conditions in exchange for the approval;
  2. Or they can deny the variance.


And then there’s the third option: They can punt or, to use the official term, “postpone.”


At last Monday’s meeting, the board granted variances for 11 cases, denied variances for two more, and punted the remaining four. (Two of the 19 cases were withdrawn.)


One word often heard at BOA meetings is the word “hardship,” a term used by board members, property owners, and opponents alike. Rules allow the approval of a variance only if board members find the property owner faces a hardship. Hardship has a specific meaning in cases before the board — though it is up for wide interpretation. Specifically, the rules state a variance can be granted if applicants demonstrate how zoning regulations do not allow them “reasonable use of their property” because they face a hardship — such as topography, lot configuration, or trees and other physical constraints — that limits the placement of the structure or prevents compliance with site development regulations. The applicant must also show how the hardship is different from those on other properties in the area.


The most contentious case on Monday was one involving the proposal to build a garage at the home of Thomas E. and Elsbeth P. Robinson at 6208 Cat Mountain Cove.


The house sits on top of Cat Mountain in the wealthy Northwest Hills neighborhood overlooking the city. Built in 1972, the 6,406-square-foot home has an appraised value of $837,925, with a hot tub and an 800-foot sport court shoe-horned onto a lot that measures 0.368 of an acre, according to the Travis County Appraisal District.


Jim Bennett, a real estate consultant who frequently represents property owners seeking variances, argued the owners’ proposal to build the garage and a “small bathroom” would actually result in a decrease in the impervious cover on the lot from 62.3 percent to 56.3 percent because the property owner would take up some of the driveway. Even so, the impervious cover would exceed the 45 percent maximum allowed for a single-family residence in current city code.


Moreover, the property owner requested three additional variances to accommodate three other violations on the property: an existing sports court that is six inches away from the rear property line (code requires a 10-foot rear yard setback), a non-complying side yard setback of 1.8 feet (code requires five feet), and an increase in the non-complying floor-to-area ratio (FAR)


“There is zero hardship in this case, absolutely zero hardship!” said attorney Henry N. Bell III, who was hired by a neighbor and said he spoke for seven neighbors who objected to the project.


Bell called the property — particularly its sports court, which is really a “handball court” with a 30-foot-high concrete wall — a “monstrous monstrosity.”


Moreover, he said the property had never had a final inspection but was granted a certificate of occupancy, apparent oversights by the city.


Regardless, Bennett argued that adding a garage to a home that was built in 1972 — before the current zoning laws went into effect — “I would submit to you those are hardships.” 


Board member Michael Von Ohlen didn’t buy it.


Prefacing his remarks by saying he was a “property rights guy” and noting that the motor court “could have been better architecturally done,” Von Ohlen nevertheless said, “Where I’m having problems is on your hardship.”


He said the unstated “hardship” was that the property owners had reduced the impervious cover all they can and that this was unique to the property. But he said the applicant had not demonstrated this in the paperwork submitted or the testimony.


“I’m going to make a motion to postpone because we have to make a decision based on the findings and it’s not there,” Von Ohlen said.


Other board members agreed and the case was postponed to the board’s next meeting, Jan. 11.


Contacted the next day, Bell said that the board should have denied the request during the meeting.


“I think it should have been decided last night and a variance should have been denied,” he said.  “There was no hardship proven and no reason for a variance. That’s the key in the case.”


In a later case, Bennett again appeared before the board members seeking a variance for another property owner, Lisa Rogers, who has a home at 3904 Berryhill Way and requested a variance to erect a second-story addition to an accessory structure. The code requires a 10-foot setback, but the existing structure only has a 5.2 foot setback.


The case was before the board for a second time; in May the board approved a variance to allow the owner to maintain the building (which encroached on the rear setback requirement) apparently under the understanding that the second story would be set back five additional feet, or a total of 10 feet from the property line.


In the ensuring months, Austin Energy agreed to allow the expansion near its easement and to bury electrical power lines (at a cost of nearly $40,000 to the property owner), and so the owner returned to build the second story closer to the property line, which is buffered by a greenbelt, Bennett explained.


Board member Clarke Hammond and other board members were incredulous about the property owner’s spending the money to bury the cables with no guarantee that the board would approve a second variance.


Board member Heidi Goebel said, “This one is easy for me. Build it back at the setback. You haven’t given me a reason” to approve a variance by proving a hardship.


Bennett responded, “The structure is there. There’s no opposition. … If you take that position you don’t need a Board of Adjustment and you just say, ‘All things must comply.’ ”


In the ensuring discussion, Board Chair Leane Heldenfels noted the history of the property and how its first story was found to be noncompliant because the owner requested a permit from the city to build the second.  


Finally, Von Ohlen said, “I’m not seeing hardship. The hardship doesn’t get me there.” He noted that Bennett had a “good rationale,” arguing that the property backs up to a greenbelt and faces no opposition from neighbors. But he said he had to demonstrate an acceptable hardship unique to the property for the board to grant a variance.


“I don’t like granting variances willy-nilly,” he said. “What is the hardship?”

Board member Bryan King said, “The hardship is $40,000,” the amount paid Austin Energy to place the power lines underground. “You’re coming back here on a roll of the dice.”


Bennett: “A lot of time it is a roll of the dice. But you have to get the dice in your hand before you get the first roll.”


In the end, the board voted to postpone the case until Jan. 11 so Bennett could better demonstrate an acceptable hardship.


After that, Bennett stayed at the podium to represent yet another client. Ford Smith, owner of a convenience store at 608 South Lamar, requested a variance to decrease the minimum setback requirement to 13 feet 6 inches from the required 25 feet to maintain a recently installed storage building.


The property is constrained because of a high bluff on the rear and its relatively long and narrow shape makes it difficult to build on, Bennett explained.


Responding to a request from a neighborhood group, King made a motion to approve after adding the proviso that no mobile food vendors be permitted on the lot. Board members agreed and approved the variance unanimously, 7-0.

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