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Short-term rental house tests meaning of grandfathering rules

Monday, January 9, 2012 by Elizabeth Pagano

Despite strong neighborhood support, the Board of Adjustment last month approved only part of case that tested the interpretation of special exceptions in Austin. Although not important to the case, some members of the Allandale neighborhood showed up to oppose the owner because the house is used for short-term rentals.


The board voted 6-1, with Vice Chair Heidi Goebel in opposition, to approve only half of the requests of the owners at 1009 East 43rd Street.


The board voted to approve special exceptions concerning the side yard setback and placement of a water heater. They denied a special exception that would allow owners to maintain a deck and exterior staircase. They also denied two variances, one to remodel a building and maintain a two-family residential use, and one to decrease off-street parking requirements.


The owners struggled to make their case, asking the board to grant the six items so that the property could remain in its current state. They were unaware of the violations when they purchased the property, and were seeking “special exceptions” for some of the violations.


“This is our second hearing before the board on this case, and despite a mountain of evidence that shows not only neighborhood support, but clearly that the items have been in place for more than 15 years, they chose to cherry pick the facts as they saw fit,” said agent David Cancialosi DCI Permitting and Land Consulting.


Special exceptions were established in May of this year. They are designed to allow grandfathering for properties that have been in violation of city rules for more than 15 years.


Chair Jeff Jack took exception to many of the requests, which he said were tied to illegal construction on the property, either by the previous owner, or by the current owner. The current owner maintained that he was unaware that the property was not in conformance with code.


“I’m OK with the setbacks that have to do with how the house was originally constructed back in 1940 or whatever, I’m less willing to entertain some of these other little add-ons,” said Goebel.


“They, I think, misunderstood the request that we were asking for,” said Cancialosi.


“We have verbal and written testimony from the prior owner, who lived in the house since the 1940s, with his parents, that the rear unit, the garage, was converted in the 1980s, by his parents, and at the same time the stairs to be what used to be a third unit were added,” said Cancialosi. “Those clearly meet, not only the intent, but the letter of the law written in the ordinance, in the special exception ordinance that provides amnesty for minor setback violations that have been in place for 15 years or more.”


The board found arguments for the lack of on site parking similarly uncompelling, noting that the conversion of the garage in the first place was part of the problem. They were unconvinced that there was not room for parking on the property.


The Board of Adjustment received 34 letters of support from surrounding neighbors in Hancock, many of whom noted that the property was much improved since becoming a short-term rental, and they had no problems with its functioning as one in the future.


However, its short-term rental status, which was not part of the case, drew the ire of several people from the Allandale neighborhood.


“The house of 43rd street is one of the commercial short-term rentals that is operating under the name Hancock Guest Cottages. There’s several Hancock Guest Cottages in Allandale. They’ve collected a long string of 3-1-1 calls from the neighbors there and have, if you will forgive a little bit of levity here, they have become a true inspiration for those who think short-term rentals should be heavily restricted, or even banned,” said Herbert Robertson, who is a resident of Allandale,


Morris Anderson, also from Allandale, worried that a “deadly” exterior staircase that appeared to have a wooden slatted wall instead of a handrail could cause a guest to be “forever maimed.”


The board did not address the issue of short-term rentals, or the safety of the staircase.

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