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Board of Adjustment opts not to consider neighbor’s belated complaints

Monday, July 18, 2016 by Elizabeth Pagano

Given unclear rules, misgivings about precedent and a huge stack of papers to wade through, the Board of Adjustment voted to reject a neighbor’s appeal of someone else’s variance at its last meeting.

Lotte Vehko John Mayes was asking for a reconsideration of the variance granted to his neighbors, Sara and William Bircher, at the board’s last meeting. That variance reduces the rear setback and will allow the Birchers to build a new two-story garage at their 3913 Avenue F house.

Right off the bat, Board Member Michael Von Ohlen held up the 80-some pages he had just been “bombarded with” and declared the situation “ridiculous.”

“I’m not prepared to deal with this right now,” said Von Ohlen. “To walk in the door today to present it and to ask us to act on it immediately, I think that’s a big stretch.”

The stack of paper appeared to disgruntle several board members. But the board was also concerned about whether it should allow a neighbor to appeal someone else’s variance in the first place.

Assistant City Attorney Brent Lloyd said that reconsideration could be filed by “any person having original standing” under the board’s procedural rules. In the case of a variance request, he interpreted that to mean anyone who could have filed the request for variance in the first place: the landowner or the landowner’s agent.

“I don’t recall this coming up before, and I’m surprised that it hasn’t,” said Lloyd. He also pointed out that the language was in the board’s own rules – not state law – and could be changed or clarified by the board members themselves.

Board Member Eric Goff noted that even if the code were interpreted much more broadly to include anyone who had participated in the original case, it would not include Mayes. Vehko.

Commissioner Rahm McDaniel made the motion just to reject the reconsideration instead.

“I think we’re opening Pandora’s box,” said McDaniel. “We do a lot of variances here, and if we’re going to be changing the circumstances under which we hear a reconsideration, we should look at the rules first before we kind of create them on the fly.”

Board Member Bryan King said that they had, in fact, allowed neighbors to appeal variances in the past and was surprised by the interpretation of the rules that said otherwise. He made a motion to postpone the decision, given that fact. That motion failed.

The motion to deny the reconsideration passed in a vote of 7-4, with board members King, Brooke Bailey, Michael Benaglio and Melissa Hawthorne voting against.

Later in the meeting, Board of Adjustment members agreed to change their procedures to clarify that any interested party (as defined by city code) could ask for reconsideration of a case.

This story has been corrected to reflect the fact that John Mayes was asking for the reconsideration. This story originally reported that Lotte Vehko was seeking the variance. In fact, Vehko represented the Birchers in the original case.

Photo by Kate Ter Haar made available through a Creative Commons license. A complete list of Austin Monitor donors can be found here.

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