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BOA votes to reverse staff interpretation of McMansion attic exemption

Tuesday, January 17, 2012 by Elizabeth Pagano

The Board of Adjustment has voted to reverse Director Greg Guernsey’s interpretation of the habitable attic exemption under the McMansion ordinance, changing how the exemption will be treated in the future.

 

The board voted to reverse the interpretation 6-0-1, with Board Member Bryan King abstaining.

 

Though the board’s ruling came after weeks of discussion, the decision on Monday was fairly terse. Following an executive session, the board explained the new interpretation, which attempts to close a loophole in the McMansion ordinance.

 

Critics have taken issue with the interpretation of the attic exemption for years, arguing that it has led to the construction of much larger spaces than was the intent when the ordinance was crafted.

 

The board’s new interpretation of what qualifies as exempted attic space uses more precise language, defining an attic in three points.

 

Now, 50 percent or more of the exempted portion of the attic must have a height of less than seven feet, but more than five feet. The exempted portion an attic must be limited to rooms used for human occupation (examples of which were cited by the board.) Finally, the exempted portion of the attic must be fully contained within a roof structure, and cannot extend beyond the footprint of the floor below.

 

The change in interpretation was a result of a case brought forth by neighbors opposing construction at 3704 Bonnell Drive.

 

Though applicants John Deigh and Sarah Lynn Hill won their bid to change the interpretation, it will have no impact on the Bonnell construction, which is grandfathered under Chapter 245, and therefore not subject to the McMansion ordinance at all. 

 

Only if the 245 determination were to be overturned would the new interpretation apply.

 

The board made it clear, as it had in the past, that they would not be addressing the 245 grandfathering itself, which the applicants had hoped to appeal at the Board of Adjustment.

 

“City legal has said… there is no administrative appeal of a positive, or any kind of 245 determination under City of Austin code,” Dowe Gullatt of Longbow Partners, LLP told In Fact Daily. “We disagree with that, and we think state statutes allow us to do that.”

 

Assistant City Attorney Brent Lloyd told In Fact Daily that state law does not require that there be an administrative appeals process for grandfathering decisions.

 

“There are some cities that do that, but Austin doesn’t, and there is no requirement that they do that,” said Lloyd.

 

“It’s a case where these are basically civil servants, not people who are appointed by the Council. (They) are making important decisions and then saying their decisions are not reviewable. And that’s not a good thing,” Deigh told In Fact Daily.

 

Deigh also objected to the role of Lloyd as counsel on the case, positing that his role on the Board of Adjustment was a conflict-of-interest with his role on the 245 committee that made the determination. Lloyd strenuously objected to this reasoning, noting that as a city attorney he had roles on many boards, as the job requires.

 

“I do think it’s worth noting that I did make a request for outside counsel, and that request was denied at some level. So we are where we are, and we will move forward,” said King.

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