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Private deed restrictions put ZAP on the spot

Friday, June 14, 2013 by Elizabeth Pagano

The Zoning and Platting Commission last week managed to stay clear of a private deed restriction battle that may be re-emerging in north central Austin.


Mark Canada is seeking a re-subdivision for his lot which is just less than half an acre. Though the subdivision would require no variances, there is a private deed restriction on the land that Canada was not aware of before he went to the commission last month.


Ultimately, the commission voted 5-1 to continue the case until its July 2 meeting, which would allow Canada time to meet the requirements of the deed restriction, which requires two-thirds support of the neighborhood for re-subdivisions.


Commissioner Rahm McDaniel was the lone holdout, saying the he thought the commission was “treading in dangerous waters.”


He went on to say that though he appreciated the action that was taken, and the spirit behind it, he was concerned that the commission was getting involved in a contractual dispute.


Commissioner Gabriel Rojas was absent.


In her motion, Chair Betty Baker included a “respectful request” that City Council appoint a commission to further address the issue of private deed restrictions.


Commissioner Patricia Seeger agreed with the idea, saying that, as land becomes more scarce in the central city, the commission will need more direction on the topic.


“We try so hard as a community, and a commission, to be fair. And the one thing this isn’t is fair to the little fella,” said Baker, who expressed dismay that the burden of enforcing private deed restrictions falls entirely on neighbors.


“Everybody gets grandfathered. If grandma walked by and waved to someone on the porch, they are grandfathered…The city annexes areas with deed restrictions, and do not accept or enforce those deed restrictions. To me, they are losing some rights through that annexation,” said Baker, who asked for an explanation from city staff about why people lose their rights by being annexed.


“We’re so cognizant of grandfathering and protecting peoples’ rights. And yet, the people who need it probably the most are unprotected,” said Baker. “


Assistant City Attorney Patricia Link explained that, because the city is not a party to the private deed restrictions, the city’s authority, in terms of land use of annexed properties, is limited to zoning.


Link explained that if a subdivision meets city code, the commission has no discretion about whether or not to approve it, and private deed restrictions do not enter into that analysis under code. She explained that to fight the re-subdivision, the neighborhood can take the landowner to court.


Several neighbors spoke in opposition to the subdivision request, though they emphasized a desire for Canada to comply with the deed restrictions over opposition to the subdivision specifically.


Catherine Fryer is one of the lot owners who has previously successfully sued over re-subdivisions in Shoalmont addition. She noted that a few years ago there were a rash of subdivisions, but it now looked like the problem for the neighborhood would be ongoing. She asked the commission to honor the restrictions.


“It’s very difficult for individuals to bear this burden of enforcing the deed restrictions,” said Fryer. “Part of the problem is that we don’t know when these applications have been filed…You have to be very, very vigilant to know when people are going to re-subdivide.”


She said that, from her perspective, the city was in violation of the law, because the subdivision attempted to “amend or remove covenants or restrictions.”


“In effect, by granting these applications, you are removing these restrictions,” said Fryer.


Lorinda Holloway was also part of the group that had filed suit. She suggested that the commission “punt” the case, giving time for the deed restrictions to be met.


“The neighbors in this area are essentially having to play whack-a-mole every time one of these applications pops up,” said Holloway.


Commissioner Jason Meeker pointed out that, if the commission granted the subdivision against the private deed restrictions, it was clear that it would lead to a lawsuit.


For his part, Canada pointed out that the subdivision met all the requirements of city code. He further pointed out that the proposed division will result in a lot size that is the “norm, not the exception” for the neighborhood.


That said, Canada told the commission that he had worked towards getting neighborhood support, and had no desire to be sued. In order to be in compliance with the private deed restrictions, he must win approval from two-thirds of the neighborhood, and Canada is in the process of doing just that.


Though he hasn’t been able to reach all of the residents, Canada said that about 90 percent of those that he did speak to were in support of the subdivision. Though he thought he could get the remaining signatures by the commission’s next meeting, they gave him another month to ensure he had adequate time.


“I’m finding myself on a touchstone, apparently, with a lot of history before me,” said Canada. “This has been an education, to say the least.”

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