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BOA denies a new build designed for a new decade

Friday, January 17, 2020 by Jessi Devenyns

When the first Lake Austin Watershed Ordinance went into effect in 1980, some properties had development rights curtailed overnight. The property at 2803 Edgewater Drive is one of those cases where the ordinance limited the buildable area on the property’s steep slopes to 196 feet.

With such a small percentage of the three-acre lot classified as developable, the property has remained undeveloped since it was platted in 1959.

To allow for a foundation with a footprint of 1,500 feet on the site, Mark Odom came to the Board of Adjustment’s Jan. 13 meeting to request a variance to increase the allowable impervious cover from 5 percent to 66 percent on slopes with a 35 percent grade. He also asked for an increase in allowable impervious cover from 0 to 29 percent on slopes above a 35 percent grade in order to construct a driveway.

The board had no clear-cut answer to the variance request. Board members found themselves debating whether allowing construction on a steep slope was appropriate for a lot zoned for single-family development 60 years ago or if it was more appropriate to honor a zoning ordinance from 40 years ago.

Board members fell on both sides of the argument. With divided opinions, the board failed to recommend the variance to permit additional construction on the property with a 4-6 vote. Board members Don Leighton-Burwell, Rahm McDaniel, Darryl Pruett, Yasmine Smith, Brooke Bailey and Jessica Cohen voted against the motion to approve. Board Member Michael Von Ohlen was absent.

“Because these are legally platted lots, I don’t understand why this isn’t grandfathered,” said Board Member Veronica Rivera. “If we’re not going to build on them the city needs to determine that they’re not developable.”

Board Member Rahm McDaniel summed up the counterargument, saying, “You have two lots that have sat there for 60 years that have not been developed and subsequently the legislation around them changed, and now we’re trying to say they were right in 1959?”

Other board members argued it was their duty to determine from a modern context whether a site presented a valid hardship preventing its development. McDaniel pointed out that Odom was aware of the limitations when he purchased the site. “What is missing from all this … is a really clear and concise understanding of how your hardship passes all of the tests that we need to go through,” McDaniel said.

Board Member Yasmine Smith called the case a “self-imposed hardship.”

Odom told board members that if he does not receive a variance for his request, “The only other option that we have is to move toward a vested rights determination.”

This approach permits an applicant to go to court and petition to have a project reviewed under older regulations that are no longer in effect. For the Edgewater lot, that would be pre-Lake Austin Watershed Ordinance regulations.

If the property owner pursues this course of action and wins the case in court, Board Member Melissa Hawthorne explained that he could develop the property with up to 45 percent impervious cover and without slope restrictions. In that context, she said the proposed variance request was “a pretty good compromise.”

Not only were board members not in favor of the project, but neighboring residents came to express their opposition to the plans. “We feel that the scale and appropriateness continue to be areas of concern,” said Earl Hunt, speaking on behalf of 19 Lake Austin Estates neighbors.

Since the property is still a blank canvas, Board Member Ada Corral said a residence built there should be modern in both design and environmental impact. “It should be a building we are designing in 2020, and not in 1960,” she said.

The environmental impact of granting the requested variance weighed heavily on the board and ultimately swayed the vote. “I just think (Lake Austin) zoning is there for a reason,” said Bailey.

Rendering by Mark Odom Studio made available through the city of Austin.

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