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BoA postpones interpretation case, disappoints developer

Monday, November 28, 2016 by Joseph Caterine

During a special called meeting on Nov. 21, the Board of Adjustment voted to postpone an interpretation case to its next meeting on Dec. 12. Leah Bojo, a senior manager at Drenner Group representing PSW Real Estate, cried “No!” from the audience as Chair William Burkhardt announced that there was time left only to make a motion to postpone, since the Historic Landmark Commission meeting was about to start and the board had no other place to move.

“We realize that you don’t want to postpone,” Burkhardt said. “But we don’t have an opportunity to continue the meeting tonight. We have done our best to try and accommodate you.”

An appeal of an administrative decision had been submitted back in September by Kim Johnson, president of the South Lamar Neighborhood Association, calling on the board to overturn staff’s interpretation of the Land Development Code relating to Single Family (SF-3) attached dwellings, specifically pertaining to the development of two properties at 3206 and 3208 Aldwyche Drive, within SLNA’s boundaries.

The section of city code under scrutiny defines Single Family attached residential as “the use of a site for two dwelling units, each located on a separate lot, that are constructed with common or abutting walls or connected by a carport, garage, or other structural element.”

The ambiguous phrase “other structural element” took center stage during the public hearing, with the appellant’s side and the opposition presenting their own interpretations. According to PSW site plans, the relevant properties will be connected by an arbor, which Bruce Evans from the SLNA argued was not an adequate attachment. “It’s at best decorative landscaping,” he said to the commission.

On the other side, Bojo argued during her presentation that the city had already made a determination years ago that arbors fit the definition in the code. Then-deputy building official Janet Gallagher wrote in a 2002 memo, “It has been determined by the Building Official of the City of Austin that an arbor constitutes a connection between single-family attached SF3 residences. The arbor must be constructed twice as long as it is wide.”

Even so, Evans presented photos of other SF-3 attached residences around the city that displayed flimsy attachments, such as a ladder bolted onto the sides of two houses, illustrating in his view how developers have taken advantage of the loose interpretation of the code.

David King, president of the Austin Neighborhoods Council, echoed Evans’ skepticism. “If a trellis is good, why not connect them by a piece of wire? What’s the difference?” he asked.

Ross Wilson, director of community development at PSW, said that if the appellant wanted to change the definition of the code, they should go through the appropriate public process of doing so. “They’re asking you to further define the code,” he said, “not to evaluate the interpretation of the code.”

After the public hearing was closed, assistant city attorney Brent Lloyd advised the board to be mindful of historical precedent but also not to refrain from judiciousness. “The bottom line is the code is not entirely clear on these issues,” he said. “This is a matter on which the board can exercise its sound professional judgment. If you think that staff has misinterpreted the code, it is within your legal powers to reverse staff’s determination.”

Burkhardt asked Daniel Word of the Development Services Department about staff’s current standing on what constitutes a structural element. “I’m struck by how far the definition has migrated in an apparent effort to make an affordable structure,” he said.

“There was certainly internal discussion and disagreement,” Word said. “It’s a vague definition; our code leaves too many things up to interpretation.” In the end, however, he said staff did not feel comfortable reversing the established precedent.

Board Member Rahm McDaniel asked why there were not more detailed pictures of the arbors in question. “Absent something clearer, I have to go with staff,” he said.

Nearing the end of the meeting, Board Member Michael Von Ohlen directed PSW to prepare a more precise rendering of what the arbor will look like by the next meeting. “It will help me make a better decision,” he said. “This is not going to hold you up.”

Board Member Don Leighton-Burwell made the motion to postpone, and it passed 10-1-1, with Board Member Eric Goff opposed and Board Member Bryan King abstaining.

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