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Frustrated Board of Adjustment issues rare recommendation to staff

Wednesday, May 16, 2012 by Elizabeth Pagano

With their options limited by a strategic permit withdrawal, the City of Austin’s Board of Adjustment registered its concerns over the inability to rule on the definition of a bedroom by issuing a rare recommendation to staff on the matter. Due to the nature of their action, however, it was not immediately clear whether the board’s action would carry any weight.


The collection of circumstances frustrated Board Chair Jeff Jack. “My feeling is that staff needs guidance, needs to have clarity, and needs to have us help shape how they are going to determine what is a bedroom,” he said. “If we do it as an interpretation, city legal has advised us that maybe that doesn’t have any standing. If we do it as a recommendation, city staff is saying that they will consider it, but it’s not in the force of law. It’s a problem.”


The board’s action came on a request from Original West Austin Neighborhood Association President Nuria Zaragosa.  In it, Zaragosa asked the board to reconsider whether the director of the city’s Planning and Development Review Department’s Greg Guernsey was in error when he approved the plans for a proposed duplex at 1917 David Street.


This is not Zaragosa’s first trip to City Hall. In 2010, she argued against the remodel of a home at 1915 David Street that appeared to violate the city’s definition of such a project (See In Fact Daily, April 12, 2010).


Zaragosa claimed that Guernsey’s interpretation of the building’s plans allowed for too many bedrooms to be included in the design. As such, she argued that the proposed building was not in line with the city’s super duplex ordinance. That ordinance was crafted to prevent the building of so-called stealth dorms.


Board members voted unanimously to take no action on Zaragosa’s appeal since the owner of the property had withdrawn his application for a permit. However, they then took the unusual step of making a recommendation to staff along with that motion which more specifically details what constitutes a bedroom.


As part of their recommendation, board members also noted their opinion that staff’s approval of the plans for 1917 David was incorrect.


For those hoping, like Zaragosa, for a more clear definition of a bedroom, there are two major issues with the ruling: The board limited its comments about bedrooms to include only buildings affected by the super duplex ordinance. More importantly, city staff is not bound by the board’s recommendation.


Guernsey told the board that his department would consider the recommendation. “If the Board of Adjustment is coming back and giving us information, we would certainly look at that. I think we would have to change an ordinance, or post a rule to clarify if was to become something more definitive,” he said.


Zaragosa told In Fact Daily that she wished the board had issued a ruling. “We realize that he withdrew the permit… And I do, I guess, applaud him because it was smart,” said Zaragosa. “But I am concerned that at that stage of an appeal, if someone gets the sense that the ruling might be not beneficial to them, that they can just withdraw the permit.”


Guernsey noted that it was his understanding that the developer would not be returning with the same plan. “It probably will be similar, but it won’t be the exact same plan,” he said.

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