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Elizabeth Pagano is the editor of the Austin Monitor.
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ZAP approves re-subdivision despite family’s emotional pleas
Thursday, March 17, 2011 by Elizabeth Pagano
Bringing an end to an emotional case, the Zoning and Platting Commission was left with no option on Tuesday but to approve a re-subdivision of Kellywood Estates.
Pat Kelly, who has lived there for 30 years, explained that it is not a typical subdivision. His father purchased the land in the mid-1970s, Kelly said, intending it to be a place for his family to live. “His vision was to build a home for each of his four children, and he accomplished that before he died,” said Kelly.
Pat Kelly’s brother, Noel Kelly, is now re-subdividing his portion of the land with the intention of selling it against the wishes of the rest of the family.
Pat Kelly quoted from a letter written by his father prior to his death. “I have a requirement that you never sell any part of the land to anyone,” he wrote. “You have a wonderful arrangement here. Please don’t spoil it.”
“We want to work with (my brother),” said Kelly, who explained that the rest of the family has offered to buy the property, “but the asking price has just been above everyone’s means.”
Commissioners were sympathetic to the family’s plight but found their hands tied. “You present a case, a personal case with great flair and sincerity. This is not a family issue for us; it’s a land-use issue,” said Chair Betty Baker. “Based on the information from departments and from the county, this subdivision complies. We have no jurisdiction. We have no discretion.”
George Cox, who has lived in Kellywood Estates for 28 years, argued that moving a private waterline to the public utility easement could have unintended consequences, including forcing current homeowners to share their water supply. Developers have moved Cox’s water line so that it does not cut across the property.
“None of the four lots that are involved with this tract use that well; none of the four tracts on this lot use that water line,” explained Stephen Delgado of Texas Engineering Solutions, LLC, who represented the applicant. “That is simply a conveyance from an existing well on one side of the property over to Mr. Cox’s property over here. And it’s nothing to do with the four acres, or the four lots, or what we’re trying to develop here. We were trying to be nice and put a line in the ground that he could use.”
“It’s really a fairly simple case. We are taking a four-acre tract of land; we’re cutting it into four parcels. We have our own well; it’s been permitted by the Barton Springs Conservation district,” said Delgado. “When you really get down to it, it’s pretty cut and dry and pretty simple.”
The Zoning and Platting Commission ultimately agreed, voting unanimously to approve the re-subdivison.
“I really feel bad about this decision because I see a family being torn apart over land use,” said Commissioner Patricia Seeger. “But the owner, your brother, has a right to do this, and we don’t have a right to stop him legally. I’m sorry.”
Baker expressed similar regrets, telling Kelly, “We appreciate your concerns, and we appreciate your issues. We wish we could do something about it.”
The case will go before Commissioner’s Court in a few weeks, where the family will continue to try and prevent the development. Following the case, Pat Kelly spoke with In Fact Daily. He said he understood the commission’s position but concluded, “What’s legal isn’t always right, and I’m just trying to do what’s right.”
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