Wednesday, March 20, 2019 by Jessi Devenyns

Neighbor takes out grievances over ADU at the Board of Adjustment

Although the Board of Adjustment prefers not to take neighborhood disputes into account when members consider variance requests, sometimes these conflicts can be difficult to ignore.

Before hearing any cases at its March 11 meeting, the Board of Adjustment warned those who were going to testify that personal quarrels have no place in any case. Even so, when Josh Westheimer came to argue his case to retain an already constructed but non-permitted carport on his property at 1802 Cloverleaf Drive, he could not resist mentioning that the only neighbor within 300 feet who did not support his request was someone who had an ongoing issue with his recently constructed ADU.

Karen Pagani came to oppose the variance request that would allow the Westheimers to keep the carport that has been on the property since 2003, which she pointed out encroaches into the setback and overburdens the property.

“They knowingly skirted the permitting process,” she told the board, adding that she had requested an extensive site plan review when they constructed their ADU in 2018 and that the carport was not flagged. A survey of the property shows the carport. “(They) used the fact that there was no record of that to their advantage,” she explained. Now, she asserted that the Westheimers’ request for a variance, even though the carport had been on the property for 16 years, was causing an “insatiable edifice complex” between the two property owners.

Josh Westheimer said that the carport issue never arose until he began building his ADU. Now, “she makes it known that this is a retaliation,” he said. Images and text message screenshots in the backup to the case depict the handwritten signage Pagani has posted in her yard in an effort to make her dissatisfaction public.

“I am not going around randomly calling out people whose properties don’t affect me in some draconian manner,” Pagani said, explaining that her conflict with the Westheimers had ballooned to such a pitch that it had become problematic within the neighborhood at large.

“There was a lot of info in the package that I don’t think should have been included,” noted Board Member Michael Von Ohlen. He stressed that arguments between neighbors have no bearing on the decisions made by the board. The more pertinent issue was that the carport that encroached into the setback was erected without a permit on a property that already had an enclosed garage.

Westheimer noted that the garage – which used to be a carport before it was enclosed in 1989 – is 15 feet and 3 inches long and that a standard garage is 20 to 24 feet. According to him, the garage is unusable because it is too short for the average modern vehicle. “A Toyota Camry is a 16-foot car,” he explained.

Board Member Don Leighton-Burwell suggested a solution to the problem that wouldn’t require any variances: shortening the carport and opening the garage back up.

“That is an idea, and that sounds like an expensive one,” said Westheimer.

While the board members had trouble finding a reason to approve the variance to allow the carport to remain standing, they were sympathetic to the situation. “For me, it’s heartbreaking because I see the circumstance,” said Von Ohlen. Board Member Melissa Hawthorne agreed, justifying her stance by pointing to the Westheimers’ interesting, pie-shaped corner lot and saying, “geography is sometimes difficult.”

Still, the board made a motion to deny the request for a variance to keep the carport. It passed 6-5 with Hawthorne and Board members Ada Corral, Eric Goff, Martha Gonzalez and Veronica Rivera voting against it and Board members Rahm McDaniel, Christopher Covo and Brooke Bailey absent.

This story has been changed since publication to correct a typo. Additionally, a capture of the text messages has been taken down, pending further review by the city. Photos courtesy of the city of Austin.

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Key Players & Topics In This Article

City of Austin Board of Adjustment: The city's Board of Adjustment is a quasi-judicial body that decides on variances, special exceptions and can issue interpretations of code.

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