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Commission experiences déjà vu when previous case returns

Friday, October 27, 2017 by Joseph Caterine

Rezoning a property is an arduous and lengthy exercise on its own, but for some, it is not enough to remove cumbersome restrictions. Last week, the Zoning and Platting Commission voted to approve the staff recommendation to terminate a public restrictive covenant on a property that prohibited some of the same uses blocked by its zoning ordinance.

Owner Abraham Birgani had applied in April to rezone 6610 McNeil Drive/12602 Blackfoot Trail from single family/neighborhood commercial to commercial mixed use. In August, the commission recommended community commercial instead, a category more intense than the current zoning but lower than what was requested.

Then the applicant returned and at the Oct. 17 meeting presented what appeared to be the same case, which prompted Commissioner Bruce Evans to ask, “How did we get into this endless cycle?”

Many properties, in addition to their zoning ordinance, also have restrictive covenants that list specific conditions that also apply. These covenants can be made between the landowner and adjacent properties or entire neighborhoods.

Even if the zoning ordinance and restrictive covenant on a property have similar provisions, case manager Sherri Sirwaitis explained that it is still a separate process to remove them.

In 1997, the property (zoned single family after annexation) was tagged with a violation after city code enforcement discovered that Birgani had been using the lot facing McNeil Drive for commercial purposes. Birgani applied to rezone shortly after to resolve the violation, although he claimed he had been operating the building as a business prior to annexation. That is also when the restrictive covenant was established.

“Even though it was grandfathered, he still had to come into conformance. He still had to get a certificate of occupancy to occupy the structure,” Sirwaitis said.

“So instead of coming and telling him that, you just went and put a violation on him,” Evans said.

Sirwaitis did not work for the city of Austin back then, so she could not comment as to why the city had decided to take that approach.

“I think this is a procedural nightmare,” Vice Chair James Duncan said. “We’re spending (so much) time on this (case). It’s just a screwed up situation, and it doesn’t reflect well on the system.”

Because City Council was not due to deliberate on the zoning case until two days after the commission meeting, Commissioner Betsy Greenberg suggested picking up the case at a later date so the commission could base its decision on the outcome. However, Sirwaitis clarified that the covenant only applied to the front lot of the property, with the commercial zoning.

Evans made a motion to approve with staff’s recommendation and Commissioner Sunil Lavani seconded. Commissioner Ann Denkler proposed retaining the prohibition of massage parlors as an amendment to the motion, but it did not pass. The main motion passed 6-2, with Chair Jolene Kiolbassa and Commissioner David King dissenting. Commissioners Dustin Breithaupt, Stephanie Trinh, and Yvette Flores were absent.

The Indian Oaks neighborhood, which opposed both the rezoning and termination of the restrictive covenant, requested that Council postpone a decision on the zoning case until after the restrictive covenant termination was resolved. At its Oct. 19 meeting, Council denied that request and approved the zoning change on first reading.

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