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Council rejects eastside zoning request despite error in city permit

Wednesday, June 18, 2014 by Elizabeth Pagano

A neighborhood association squared off against its own president at City Council last Thursday during a contentious East Austin rezoning case.


In the end, Council members sided with the neighborhood and denied the zoning change on a 3-4 vote. Toria English owns the house at 1307 Waller Street and happens to be president of the Swede Hill Neighborhood Association. Council Members Mike Martinez, Kathie Tovo, Laura Morrison and Chris Riley voted against the change, despite the fact that English said the change was needed due to staff error, which permitted the excessive impervious cover.


Though the lot is restricted to 45 percent impervious cover under city code and a separate deed restriction, development on the land stands at 61.8 percent. That impervious cover includes parking for the family that was made possible by paving over the front yard, a patio, and a pump house for the pool that is in the property’s setbacks.


The house at is one of four houses built as part of a 2006 re-subdivision. All four houses were built under Urban Home regulations, which were adopted under the neighborhood plan. Those regulations limit impervious cover for lots more than 4,000 square feet to 45 percent, while smaller lots are allowed to build up to 65 percent.


The owners, and McLean & Howard attorney Jeff Howard, maintain the impervious cover is due to staff error and unreasonable Urban Home regulations.


“A permit by the city ought to be a commitment that folks can rely on. If they can’t rely on a permit, what can they rely on?” asked Howard.


Neighbors showed up in force to fight the zoning change, with a valid petition that stood at 50 percent.


Rob Seidenberg, who developed the lot along with three adjacent properties, explained that the impervious cover of all four houses was intentionally limited to 45 percent and based on the findings of a 2006 drainage study.


Neighbor Bill Minor told Council that the Englishes had “aggressively attempted to secure rezoning at the expense of the neighborhood, traditional common sense, and integrity.” He explained that English circulated a misleading letter asking neighbors to support her case.


“In my 15 years living in East Austin and working and being in leadership roles in different neighborhood associations, I’ve never seen something like this… I’ve never seen a president of a neighborhood association misrepresenting herself as was just discussed. And I find it repugnant,” said neighbor Sean Garretson, who is the current vice president of the neighborhood association.


Council Member Bill Spelman, like staff before him, worked at striking a balance between the interests of the property owner and the neighborhood.


“I’m not naturally Judge Judy, but it seems to me that these guys either need a marriage counselor or a Judge Judy more than they need a City Council,” said Spelman.


But English seemed unwilling to budge. Though there is another legal parking space in the back yard, she questioned whether that space was useful or appealing to future buyers. She also rejected the idea of parking on the street. Instead, English asked that they be allowed to build an additional side yard parking space if they were required to remove the parking area in the front yard.


“It’s something that the city can offer us. Because we know that they can’t offer us $20,000 or whatever for their error, not to mention the time and process that I’ve been through to do this,” said English. “I have a new phobia of code compliance and feel that my home needs to be zoned correctly.”


In this case, “correctly” meant changing the existing zoning from SF-3 zoning to SF-4a. That change would accommodate the impervious cover currently on the site, which is out of compliance despite being permitted by the city.


The Planning Commission recommended against the zoning change in May. The owners now have the option of seeking a variance at the Board of Adjustment, though that board has recently declared that they do not consider staff error a hardship under its rules.

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