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Historic precedent prompts Board of Adjustment to grant setback variance

Wednesday, January 23, 2019 by Jessi Devenyns

With rising rents in Austin, folks looking for an affordable place to live are becoming creative with their housing configurations. Even some who already have homes are looking to subdivide their lots to ease the burden and maybe even benefit from their new neighbors.

For Susan Hays, the benefit she was seeking from refurbishing her ramshackle garage into a modern apartment was very specific. She explained to the Board of Adjustment at its Jan. 14 meeting that she was hoping to make the backyard garage at 902 Herndon Lane into an affordable place to live for her 27-year-old drummer cousin, “so I have a built-in dog sitter.”

In order to remodel her garage – whose floors, she explained, were rotting and sunken below grade – Hays asked the board to grant a variance to allow her to reduce her rear yard setback from 10 feet to 5 feet and to reduce the required distance between the two structures on her property from 10 feet to 5 feet.

She noted that the second variance was necessary only because her plans put the distance between the main house and the garage apartment just under code regulations at 9 feet, 6 inches. To pre-emptively answer the board members’ questions, she explained that the proposed design “was driven in a way because of where the tree placement is.” Hays said that despite considering other design options, she selected one that required two variances because she wasn’t willing to compromise the health of the three protected trees on her property. She confirmed that when she consulted with a city arborist, he “was fine with what we were doing in the back.”

Although the board is generally averse to granting variances that allow homeowners to construct accessory dwelling units, or ADUs, on their property, Chair William Burkhardt said “this one passes the smell test” even though “it’s clearly an ADU.”

Board Member Melissa Hawthorne referenced another case the board recently heard where a similar proposal was presented but the upstairs had plumbing. The fact that Hays’ design only has plumbing downstairs and the upstairs was unplumbed office space allayed the board’s fears that the structure would be used as a short-term rental for multiple parties simultaneously.

Board Member Brooke Bailey did say that she received communications from neighbors who were concerned about the possibility of the garage apartment becoming a short-term rental. Similarly, backup documents for the project contained a statement from a nearby neighbor objecting to the proposal on similar grounds.

Hays said that she had spoken personally to “80 or 90 percent” of her neighbors within 300 feet and that no one had objected to her plan. According to her, she has been working on the project for four years and presented it to the neighborhood association so all affected parties would have had ample time to weigh in.

Furthermore, Hays said that the houses surrounding hers have back dwelling units “that are five or less feet from the back. So there’s nothing about it that’s going to stick out.” According to the application, the three properties directly adjacent to Hays’ home confirm her statement.

Based on the measured proposal that Hays presented coupled with the fact that her design is in line with that of the neighborhood, the Board of Adjustment approved her request for setback variance unanimously. Board Member Michael Von Ohlen was absent.

Rendering by Manning Architecture via the city of Austin.

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