Wednesday, November 13, 2019 by Jessi Devenyns

Board of Adjustment soundly rejects variances over ‘egregious’ code violations

After dedicating nearly a year to the construction of his personal residence at 504 Sunny Lane, StoryBuilt founder Ryan Diepenbrock found his construction choices to be the subject of a case at the Board of Adjustment last Thursday.

Diepenbrock, who was unable to attend, sent his agent Colby Turner to seek retroactive variances to bring his house into compliance with the code. He requested variances to increase the impervious cover on his property from 45 percent to 59.5 percent and to increase the height of the fence on the property from 6 feet to 7 feet, 2 inches.

While such requests are commonplace at the Board of Adjustment, this case was such a wanton overstepping of code it gave board members heartburn. The board voted unanimously to deny the requests for a variance.

“You’re here asking for forgiveness rather than permission, which is your first mistake,” said Board Member Michael Von Ohlen. He added that since this “egregious” overstepping of code limitations was self-created and not a bona fide hardship, it was something that could, therefore, be “self-curable.”

Turner told board members that both the excessive fence height and the excess impervious cover – 14.5 percent more than what code permits – were a result of the Public Works Department requiring Diepenbrock to construct a retaining wall between his cliffside property and Riverside Drive below. “It is a life-safety requirement that that wall be designed much differently,” he said.

The design of the retaining wall was dictated by the Public Works Department, according to Turner. However, Board Member Melissa Hawthorne explained that even if the city had outlined certain requirements, “(impervious cover) still needed to be within the limits of a residential permit application.”

Next-door neighbor Dean Van Landuyt explained to the board that beyond the overuse of impervious cover on the lot, the retaining wall is not just a foot or two above the limit – it’s 16 feet too high.

“They’re asking for a variance for a 22-foot-tall fence,” he said.

He showed documentation to the board members that the owners of the property had been informed three times by the Development Services Department about the code requirement: “The height of a fence on top of a retaining wall is measured from the bottom of the retaining wall.” In asking for a variance for a 7 foot, 2 inch fence, they were measuring incorrectly.

Furthermore, the construction of a concrete terrace in the backyard encroaches into the 25-foot setback. Underneath that terrace, and not visible from the surface, is an underground sauna.

“As far as the secret room, that room has been identified by the inspections department,” said Turner. “It has been inspected and approved.”

The revelation that there was even more to the property than meets the eye left board members in disbelief.

“I personally have never in all my years … relied on the inspection department to identify something in my plans … unless I did something wrong, which seems to be what transpired here,” said Von Ohlen.

Chair Don Leighton-Burwell noted that overstepping limitations in this manner doesn’t happen by accident.

Neighbors and neighborhood associations also spoke out against allowing this over-construction of the property to be permitted. The Zilker Neighborhood Association, South River City Citizens, members of the Flood Mitigation Task Force and former Board of Adjustment Member Bryan King offered their opposition to the bloated project.

With little discussion about what Leighton-Burwell called a “huge ask,” the board voted unanimously to deny the variances. Board members Ada Corral and Rahm McDaniel were absent.

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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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