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Residential Design panel wants more power over McMansion ordinance

Tuesday, July 26, 2011 by Kimberly Reeves

The Residential Design and Compatibility Commission, dissatisfied with a recent administrative appeal, wants to put more teeth into the city’s McMansion ordinance, which the commission has overseen for more than five years.


The McMansion ordinance limits the size of homes in Central Austin to 2,300 square feet. The ordinance also applies a building envelope for each home based on side and rear setbacks, and it adds other various requirements on height, setbacks and roofs. Council approved the ordinance in 2006


The RDCC approves limited variances to the McMansion ordinance, not unlike the decisions of the Board of Adjustment. City code allows certain variances, approved by the RDCC, as long as the home conforms to broad parameters set out in the original ordinance.


A recent decision to approve a home addition by Planning and Development Review Department Director Greg Guernsey, however, put Guernsey and his department on the hot seat at a special-called RDCC meeting on Monday.


A homeowner asked for additional space under the McMansion ordinance, part of it tied to square footage under a so-called shed roof. The RDCC denied the plan. Guernsey approved it, with some modifications, deciding to call the area under the shed roof non-habitable, similar to other types of roofs, as defined by city code.


Chair William Burkhardt insisted the commission never intended for shed roofs to be excluded from habitable space, as far back as the creation of the ordinance. Guernsey insisted current McMansion language was silent on the issue.


For the case at hand, the architect went back and amended the plan to meet city code without a variance, Guernsey said. After some departmental delay and significant complaints to various city offices, the city manager tapped Guernsey directly to review the amended plans. Guernsey said he signed off on those plans, after consulting with various city offices on interpretation of the shed roof issue, much to the consternation of many RDCC members.


Burkhardt told Guernsey his concern was the many neighbors who had shown up to protest the original case. They had won, then lost. What should the RDCC tell them? Burkhardt asked Guernsey during some rather pointed testimony yesterday. City staff had superseded the ordinance, weakening the power of neighbors to participate and protest, Burkhardt said.


“There is no process in place to give them their fair hearing on this,” Burkhardt told Guernsey. “I mean, it would seem to me, at the very least, they should be given notification of an administrative appeal. They ought to have some weight in terms of a Council or commission appeal on a case.”


Guernsey countered that the new plans required no variance; hence, no requirement for approval from any particular city commission.


RDCC members, especially Burkhardt and Karen McGraw, considered Guernsey’s decision a dilution of the commission’s authority. Burkhardt said the commission had been clear on treatment of shed roofs in the original process.


More specifically, McGraw and Commissioner Jean Stevens asked how the appeals process could end up on Guernsey’s desk, rather than before Council, as prescribed in the ordinance. If RDCC rejects a plan, it goes to Council.


Any architect on any case, Guernsey said, could go back and amend plans to conform to city code. Those plans would then be re-submitted for city residential review if they required no variance. That was the case of the house in question. Guernsey said he had consulted with city staff and the legal department before making his decision, and his decision required no variance from city code.


Assistant Director Don Birkner, in Guernsey’s absence, tried to appease the commission more than his boss. He acknowledged that the notification of administrative appeals might require more thought and suggested that city staff should rely on city legal staff more than a past administrative memo, which appeared to be a guiding factor in Guernsey’s decision on the case in question.


“We’re living and dying on memorandum written by subordinate staff rather than legal department as a legal opinion, and I don’t really like to think that’s an acceptable thing for us to do,” said Birkner, noting a circulated 2008 memo on the shed roof issue. “It’s really inadequate in terms of policy to over-rely on a single memo that a subordinate staff person writes, whether we change the code or not. A better way to review this would be to have a comprehensive review written within a legal opinion.”


That seemed to placate the commissioners, to some degree. Burkhardt called Guernsey’s approval of the additional space “precedent setting.”


“This just literally changes everything,” Burkhardt said. “To make a finding without notification, surely the director is aware of the precedent-setting of this.”


Guernsey suggested the commission recommend an amendment to clarify shed roofs if commissioners were so concerned with the outcomes. He noted that shed roofs were still manageable if they did not impact the overall envelope of the home, a requirement imposed on other roof types.


With that suggestion, the commission did propose an amendment on shed roof space for consideration at the RDCC’s meeting on August 3. Those recommendations would be forwarded to Council for approval.

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