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Board delays ruling on special exemption for Lake Austin home

Monday, May 21, 2012 by Elizabeth Pagano

Citing safety concerns, the Board of Adjustment last week postponed ruling on a special exemption case at 3005 Brass Buttons Trail where a 25-year-old deck and walkways were found in violation of the city’s side-yard setback ordinance.


The case brings into play the city’s year-old special exception ordinance, which allows grandfathering for violations that have been in place for more than 15 years.


Three days after he purchased the house on Lake Austin in November 2011, Michael Hopkins received a code compliance violation, according to his agent, Donnie Gerault. The code compliance violation related to a wooden deck that has been in place since 1987.


Chair Jeff Jack said the code violations amounted to more than just a violation of the setback requirement — stone walks and wooden decks extended beyond the property line. The original owner owned four adjacent lots that have since been sold to other people. Evidently, he did not concern himself with the internal property lines at the time.


“To get from the front of the house to the back of the house, you’ve got to go on the adjacent lot,” said Jack, shrugging.


Board Member Michael von Ohlen asked if the new owners had also purchased the area of the lot that contains the house’s concrete drive and carport.


“No,” said Gerault. “That’s owned by a guy down the street.”


“In the last 25 years, no one has ever said a word, nor do the neighbors have any concern. They were given notice. We’ve spoken to all of them about having this hearing – because all we’re trying to do is clear up a code compliance that’s actually unrelated to all of this,” Gerault said.


Jack disagreed, saying the issue was the breech of the property line.


“My concern is that this building stretches essentially from lot line to lot line. On one side you’re down to zero, practically. On the other side, you’re down to two feet. If somebody would come along later and build a house legally five feet off the property line, you would essentially have no fire access to the back of the building. It would be very, very difficult.”


Assistant City Attorney Brent Lloyd told the board that the buildings located on the adjacent lot were “ultimately a private matter.”


“However, definitely, as a matter of law, over time as landowners make use of adjoining landowners’ properties and design common features such that shared use is, in fact, required there can be easement rights that emerge that we can’t address or make any conclusions on that allow adjoining landowners to make use of the adjacent property as needed for access,” Lloyd said.


The board decided to postpone the case to seek more information. Von Ohlen asked that the applicant return with pictures of the property, and Jack asked him to return with a written statement of some sort from the owners of the adjacent lots, though he stopped short of demanding that a private easement be negotiated.


“I think the solution I’m looking for is some sort of understanding with your neighboring property owners that they’re not going to someday come in here and tell you to remove all of your stuff, because they are going to build a house right up next to the property line, five feet away, and you find yourself in a bad dilemma, because you can’t have access now to the back of the site,” Jack said.


Susan Walker, senior planner with the city’s Planning and Development Review Department, added that when the applicant returns next month he should also have obtained a life-safety permit from the city to allay the board’s concerns. Lloyd said this was typically done prior to requesting a special exception from the board.


Though the board debated whether the special exception provision should address more than the date the violation had been established, it was clarified that special exceptions must also meet certain benchmarks.


“Certainly the intent of the ordinance, when you read the provisions, is to provide the board a convenient, expeditious way to deal with longstanding violations that have caused no problems to adjoining landowners provided there’s not a health and safety concern,” said Lloyd said.

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