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Membership change means fewer variances at Board of Adjustment

Wednesday, January 20, 2010 by Charles Boisseau

Led by new members, the Board of Adjustment has denied nearly twice as many variance requests in the past six months than it did in the first seven months of 2009.


The board denied just 14 variance requests, approved 76, and postponed 30 in the seven months from January 2009 through July 2009, according to vote records obtained from the staff of the city’s Planning and Development Review Department and tabulated by In Fact Daily. This record contrasts with the most recent six-month period: the board denied 27 — nearly double the number in the previous seven months—granted 58, and postponed 30 variances from August through Jan. 10. (Not counted in these totals were cases that were withdrawn or had other action.)


The changes undoubtedly reflect the new make up of the seven-member board, as two new members were appointed and an alternate joined as a regular board member following the July 2009 meeting.


The board — previously chaired by Frank Fuentes, who resigned after he was not re-elected chair last August — had been criticized by some neighborhood groups and city insiders for being too permissive in granting variances and too willing to repeatedly postpone cases. Members of the Board of Adjustment decide whether to grant property owners’ requests for variances to city land development codes.


In late July, two new board members, architect Jeff Jack (appointed by Council Member Laura Morrison) and Clarke Hammond, who works for the City Auditor’s Office (appointed by Mayor Lee Leffingwell), joined the volunteer board. Also, Council Member Bill Spelman appointed architect Heidi Goebel, an alternate member, as a full-time member.


“We’re taking a tougher look at them (variance requests). That’s a fair representation of what we’re doing,” said Hammond, who joined the board after nearly eight years as a member of the Zoning and Platting Commission. “We are taking a more pragmatic look at them and trying to apply our knowledge of the code.”


He added: “I don’t want to call it a reform group, but the new members who were appointed all have a big background in neighborhood activism as well as being involved in the community in various ways. And so we may have the most experienced Board of Adjustment in some time as far as the people with experience and knowledge, which is a good thing.”


Not all the members agreed that there has been any significant change.


Jack said that looking at trends over six or seven months isn’t enough time to come to any statistically meaningful conclusions. He also said he doesn’t know how prior boards voted. “I don’t have any personal knowledge of the track record before I got on it. I assume they did their job and we’re going to do ours.”


Since he joined the board, Jack has clearly been one of the most vocal and one of the more difficult votes for property owners to get when asking for a variance.


Jack said he has following a simple test when voting to grant a variance, based on the guidelines from the city. “My mandate is to follow the rules: If you prove you have a hardship, and you can’t have a reasonable use of your property and it’s not going to change the character of the neighborhood — if you prove those things — you get a variance.”


Leanne Heldenfels, who has served on the board since 1999 and was elected chair in August, noted that variance requests need a “super majority” — approval of at least six of the seven board members. If just two members vote to deny a variance request, it fails.


“It’s a pretty high threshold,” she said.


She added that the lengthy experience and knowledge of building and development codes of some of the new board members may influence other members. “If somebody brings up a good point it makes you rethink it.”


People with cases before the board say they are beginning to see some changes.


“It would seem that variances are getting more difficult,” agreed Jim Bennett, a development consultant who frequently represents clients before the board. “I think that is what the numbers are bearing out.”


Asked why he thinks this is the case, Bennett declined to say. He said he doesn’t want to spout off and potentially harm the position of his clients before the board.


Others said they haven’t seen much of a change yet.


Blake Tollett, a member of the board of the West Austin Neighborhood Group, said it “surprises” him that there has been an uptick in denials of variances. He said it isn’t a “slam dunk” that neighborhood groups will win. For 10 years he has been coming to the board to fight property owners who request variances for things such as a new carport or home additions that aren’t in keeping with the city code or the character of older neighborhoods. Some boards are more lenient, some more strict, he said.


All told, the board approved five variance requests, denied two and postponed three at last week’s meeting, which contained a lighter-than-usual agenda.


One client Bennett represented had their case to build a garage postponed to the Feb. 8 meeting, while another client’s plan to build a two-story garage and apartment closer to the property line than permitted by code was approved. The postponement involved a property owner at 6208 Cat Mountain Cove who wants to build a three-car garage on a lot on Cat Mountain that is already nonconforming with current city code. Henry E. Bell III, a lawyer who was hired by a neighbor opposed to the project, was given more time to contact other neighbors to get their opinions as to whether they would go along with the project in exchange for some concessions.


Among the most interesting cases last week was the fate of two eight-foot-high fences.


Tollett opposed a property owner’s request for city approval to maintain an eight-foot fence along his property at 3301 Cherry Lane in the upscale Tarrytown neighborhood. With few exceptions, city code only allows six-foot fences. Owner Raoul Cordon said he wanted the taller fence around the property as a safety measure because he had installed a swimming pool.


In the end, after Tollett and a neighbor opposed the tall fence, the board approved a variance but with a condition: an eight-foot fence on the sides adjacent to neighbors who didn’t object, but along the right of way of Cherry and Pecos the top two feet of the fence needed lattice to break up the otherwise imposing structure.


Tollett said: “I think they stretched it a bit to give the man a variance.”


But he agreed it was a better result than a similar case earlier in the evening when a home owner was granted a variance to maintain an eight-foot fence that also was along a right of way at 1711 Pine Knoll Drive in a more modest North Austin neighborhood. The property owner, James Barnett, said he repaired the existing non-complying fence to better shield and protect his pets. He supplied letters of support from neighbors and there was no opposition. The board voted to grant the variance 6-1, with board member Bryan King the lone dissent.


Commenting on the results of the two cases, Hammond said it shows that it is difficult to make blanket statements since every case is a bit different. Despite the guidelines for granting a variance only if is a specific “hardship” is proved, board members are greatly influenced by any neighborhood opposition and the overall character of a neighborhood.


“Every case is really a unique case,” Hammond said. “Some requests for an adjustment that might not work in one neighborhood are going to be fully acceptable in another neighborhood. … With every packet we get every month, it’s like a box of chocolates. There’s something different in every one. You never know what you’re going to get on Monday night.”

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