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Board denies appeal accusing church of being front for multifamily residence

Monday, March 20, 2017 by Joseph Caterine

Wading through the gray area between religious assembly and residential uses, the Board of Adjustment decided at its Feb. 13 meeting to deny an appeal to reverse staff’s determination that the property at 2530 South Congress was being used for religious worship.

Agent Nikelle Meade filed the appeal on behalf of David Krug, manager of the Guesthouse Hotel Austin, LLC, who plans to construct a hotel at 2510 South Congress. The religious use at 2530 South Congress triggers compatibility standards for the hotel.

During her presentation, Meade made the case that there was reasonable doubt that religious worship was the primary use at 2530, and that in fact it was being used as a multifamily residence. The property is owned by the Church in Austin, a religious organization founded in 1975.

Sharing pictures taken there and at other properties owned by the Church in Austin, Meade said that “common sense” pointed to the primary use being residential. “There’s not religious worship going on here, people are living there,” she said at the meeting, “which is fine, but it shouldn’t be treated as if it’s religious assembly.”

Meade also claimed that there were several businesses operating on the properties, and that the church’s tax-exempt status had been withdrawn and reinstated multiple times and is currently under review.

Speaking on behalf of the church, attorney John Joseph presented a detailed layout of the property with labeled church structures, the church’s weekly itinerary, and in a dramatic conclusion asked church members in attendance to stand. Over 50 people stood up in the Council chambers.

“These people know what the religious use of this property is,” Joseph said, “and it is unconscionable for someone to come here and disparage the use of this property.”

Planning and Zoning Director Greg Guernsey reaffirmed his determination that the religious use was primary and told board members that an overlap between religious assembly and residential uses was not uncommon. “Whether it’s a parsonage or monks occupying a building associated with religious assembly use, that’s not something that is unusual,” he said.

As far as compatibility standards, Guernsey explained that a permitted use in SF-5 (Urban Family Residence) or more restrictive zoning triggers compatibility when a use permitted in SF-6 (Townhouse & Condominium) or less restrictive zoning appears adjacent to it. “Regardless of its zoning category,” he said, “it would trigger compatibility on the adjacent use.”

Board Member Don Leighton-Burwell questioned whether the original intent of preserving single-family neighborhoods was being lost in staff’s interpretation of the code. Guernsey clarified that the permitted restrictive uses are what the code protects. Religious assembly can trigger or be subjected to compatibility, but in this case the church came before the hotel. “The use that triggers,” Guernsey said, “is what counts.”

In a random coincidence, Board Member Eric Goff said that his father helped in the constructing the original site for the Church in Austin in the 1970s. “I’m surprised by some of the evidence (presented by the appellant),” he said. “If there is any firm evidence beyond web searches I’d like to see it.”

Commissioner Michael Benaglio made a motion to deny the appeal, seconded by Board Member James Valadez. The motion passed 10-1, with Leighton-Burwell dissenting.

Later on that night, the board heard a variance request for the same hotel, but voted to postpone a decision until its April meeting.

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