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ZAP comes up empty on two Lake Austin zoning cases

Thursday, June 6, 2013 by Elizabeth Pagano

The Zoning and Platting Commission wrestled with two Lake Austin zoning cases on Tuesday night. Both matches ended in a draw.


Brian Huber, who owns the property at 4200 Rivercrest Drive, is seeking a zoning change from Lake Austin (LA) zoning to SF-2. The second case was for a property at 3715 Westlake Drive. The property owner was seeking a change from LA zoning to SF-2.


Most of the commission’s discussion focused on the Rivercrest Drive lot. The property is just shy of a half-acre, making it smaller than the minimum size required to comply with LA zoning.


Despite support from the Upper Rivercrest Homeowners Association and warnings from Chair Betty Baker that denial of the zoning would render the lot undevelopable and amount to a taking, the commission was unable to make a recommendation in the case – but it wasn’t for lack of trying.


The ZAP held two votes, one in favor of the zoning, and one to deny the change. The commission voted 3-3 both times with Commissioner Gabriel Rojas was absent. 


Baker and Commissioners Cynthia Banks and Sean Compton voted in favor of the zoning change. Commissioners Rahm McDaniel, Jason Meeker and Patricia Seeger voted against.


With both votes ending in a tie, both motions fail, and the case will proceed to City Council without a recommendation from the commission.


Though the property owner had agreed to many of the restrictions that accompany Lake Austin zoning, there remained concern that the switch from LA would set a bad precedent.


Seeger said that changing the zoning and attaching restrictions would set the city up for future problems. She said that she would like to see a base zoning of LA remain, making it easier to tell what is going on by looking at a zoning map when future cases come before the board.


“I don’t think it’s our job to protect the lot owner. I think our job is to see what is best for Austin,” said Seeger. “We have someone who has property that is right on our drinking-water source, and I think that we have a charge to protect that.”


McDaniel said the idea of rezoning, then added protections that already exist under LA zoning was silly. He said that if the property had specific hardships, that should be addressed through a variance process, and if there LA zoning had problems, that should be taken up by City Council.


Linda Guerrero and Carol Lee, who were chair and vice-chair of the Lake Austin Task Force, respectively, spoke at the meeting. Guerrero acknowledged that, in this case, the owner was willing to work with staff to ensure that environmental protections would apply after the change. As a result, she didn’t oppose the rezoning.


However, she cautioned that changing the zoning would circumvent the variance process that would take the case through the Environmental Board.


“This can be seen, in a lot of ways, as a loophole because they can go through another process, but it would require up to ten variances,” said Guerrero.


Lee said she was “baffled” as to why staff was recommending the zoning change. She said the task force was told that the Lake Austin zoning was the single biggest factor that had protected water quality of the lake, which supplies drinking water to Austin.


“The Lake Austin zoning is unique… It is the only residential zoning category that addresses septic location, acknowledges the shoreline and woody vegetation, and construction on steep slopes,” said Lee. “That’s why it’s so critical that we protect Lake Austin zoning.”


“Once you take away the LA zoning, you have taken away all protections that are buried in that zoning,” said Lee. “If they need a variance to make a residential site work, there is a process for that.”


Lee added that a review by the Environmental Board for a property that is less than 1,000 feet from the shore of Austin’s drinking supply is appropriate, noting that upzoning would not move the property further from the water.


Wittliff said that they were willing to work to retain environmental protections, but worried that seeking a variance would be difficult. He noted, and Baker agreed, that the city was often unwilling to grant variances for problems that could be solved by zoning.


“It’s a challenged piece of property. It’s been challenged for a long time,” said Meeker. “But if somebody wants to build on it, they have to go through the proper way to get it done. And that’s not by changing the zoning here.”


Similar sentiments carried over to the subsequent case on Westlake Drive. Though in that case there was only one vote, it also resulting in a draw. The commission split as it had before, resulting in no recommendation for City Council.

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