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Thursday, June 11, 2015 by Caleb Pritchard

New lawsuit adds to sour feelings in Swede Hill’s Patch House saga

The owners of a controversial house in East Austin’s Swede Hill neighborhood are taking their fight with the city to a Travis County district court.

Last week, lawyers for Blake and Toria English filed a suit against the city of Austin and Austin Energy seeking an injunction against threats to shut off power and orders to tear out improvements the couple made to the home at 1307 Waller St.

The lawsuit is the latest in a series of battles over the property that has gotten the city caught in the crossfire between the English family and the Swede Hill Neighborhood Association.

According to the suit, both the city and the utility granted the couple permits to build a backyard swimming pool and a parking space on the side of the house after they bought it in 2010. However, once those improvements were made, several neighbors complained about possible violations and the city reversed course, abandoning the permits and telling the owners to remove the improvements, the suit alleges.

Toria English told the Austin Monitor that she estimates the work would cost an extra $50,000 on top of the $175,000 she and her husband spent on installation and the subsequent fights with the city.

“Such circumstances represent the epitome of misuse of administrative and regulatory power,” her suit declares.

A spokesperson for the city of Austin confirmed to the Monitor that the city has received notice of the suit, but its lawyers are still reviewing the details. “The city of Austin is prepared to defend itself through all channels necessary. Other than that, we don’t comment on pending litigation,” the official said.

The house was originally built in 2006 under Urban Home regulations that limit impervious cover to 65 percent for lots smaller than 4,000 square feet. The lot in question is 127 square feet over that limit, which means it qualifies for no more than 45 percent impervious cover.

However, according to the lawsuit, the city originally told the owners that the property qualified for the 65 percent threshold. By the time the improvements had been made and city officials had discovered the error, the property was buried under more than 61 percent of impervious cover. (Technically, the pool itself does not count toward impervious cover, but the surrounding coping does).

City Council last year declined the English family’s request to rezone the property to a category that would retroactively allow the improvements. A month earlier, the Planning Commission also shot down the idea. Members of the Swede Hill Neighborhood Association attended both meetings and forcefully argued against the rezoning.

Ironically, Toria English was the president of the association at the time. At the Planning Commission meeting, one of her fellow members accused her of using “aggressive attempts to secure support for rezoning at the expense of the neighborhood.” Other members of the association pointed out the pump house for the pool that sits in the property’s setbacks.

On Wednesday, English told the Monitor that her family has since relocated to Houston but still owns the property. She explained that she and her husband had been considering adopting a child, but felt that the lingering compliance violations would disqualify them under state rules.

English also said they wanted to escape the hostile atmosphere. “There are a lot of negative emotions that are surrounding (the house) right now,” she said.

Provoking even more negative emotions — though Toria English denies it was intentional — is the tenant the couple signed to a year’s lease at the home. The Participation Agency, LLC, which describes itself as an “experimental ad agency,” is currently operating the house as a crash pad of sorts for traveling musicians.

Under the unusual arrangement, artists invited by the agency can stay in the home for free but are encouraged to promote the hashtag #AustinPatch on social media. The entire operation is an “experiential” brand exercise to promote Sour Patch Kids candy chews.

City staff is still determining whether this is a legal use of the property. One officer of the neighborhood association told the Monitor that members will attend the June 16 meeting of the Planning Commission’s Codes and Ordinances Subcommittee to discuss the situation.

In the meantime, both the city of Austin and Austin Energy have until next week to respond to the English family’s lawsuit. No one whom the Monitor spoke to predicted a quick resolution.

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Key Players & Topics In This Article

Austin City Council: The Austin City Council is the body with legislative purview over the City of Austin. It offers policy direction, while the office of the City Manager implements administrative actions based on those policies. Until 2012, the body contained seven members, including the city's Mayor, all elected at-large. In 2012, City of Austin residents voted to change that system and now 10 members of the Council are elected based on geographic districts. The Mayor continues to be elected at-large.

Austin Energy: As a municipally-owned electric utility, Austin Energy is a rarity in the largely deregulated State of Texas. It's annual budget clocks in at over $1 billion. The utility's annual direct transfer of a Council-determined percentage of its revenues offers the city a notable revenue stream.

City of Austin Planning Commission: This commission addresses issues of land use as assigned to it by Austin's City Code. These include the abilities "[t]o make and amend a master plan, recommend approval or disapproval of proposed zoning changes and control land subdivision within neighborhood planning areas and submit, annually, a list of recommended capital improvements." It has sovereign authority, or the right to make final decisions on certain cases.

East Austin: East Austin is the quadrant of Austin that, generally speaking, is east of IH-35.

short term rentals: Properties rented for fewer than 30 days.

Swede Hill: Swede Hill neighborhood was once a former Swedish enclave just east of downtown. The neighborhood's boundaries are IH-35 to the west, Comal Street to the east, Martin Luther King Boulevard to the north and 12th Street to the south.

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