BoA: We don’t ‘pre-clear’ cases

Obtaining a variance from city code is a multi-step process that can require applicants to visit various boards or commissions that weigh in with their expertise on aspects of a development project. In other cases, an applicant only comes before the Board of Adjustment to make their case for a variance.

This process caused concern for the Zilker Neighborhood Association, which sent a letter last November to the Board of Adjustment requesting clarification on what it deemed to be “pre-clearance” regarding the variance case for 1400 W. Oltorf St.

“Pre-clearance” is a term the neighborhood association used to describe the approval process site plans go through in various city departments in order for a department to sign off and say it does not oppose a variance request and that the proposal meets the department’s criteria. The neighborhood group stated that it understood this process occurred prior to a site plan submittal to prevent the board from reviewing incomplete site plans or encountering conflicts between a requested variance and code requirements outside of zoning, like environmental or water quality concerns.

In the letter, Dave Piper, the president of the Zilker group, indicated that the developer on the project submitted a site plan application in May 2019, despite not having approval from the Board of Adjustment for the required variances.

“A lot of times the site plan is already done, as in this case,” he told the Austin Monitor. “They ought to just do some preliminary checking.”

The Zilker association outlined its concerns in the letter, saying, “At the hearing on Nov. 7, there was no indication that any departments overseeing the drainage, water quality, floodplain, environmental, or transportation easements or variances associated with this difficult site submitted or were asked to submit a memo to the BoA.”

Piper told the Monitor it appeared that the board did not consult with other city departments before voting to grant the variance.

However, Lee Simmons with the city’s Law Department said at the board’s Jan. 13 meeting, “There is no pre-clearance policy for the Board of Adjustment.” Instead, he said that when he spoke with city staff, they explained it is beneficial for cases to come before the board before they proceed to site plan. That way the board is able to determine if more information is needed from other city departments or commissions in order to make a decision to allow a variance, and it allows for zoning issues to be disposed of before a project moves forward to site plan and design.

Chair Don Leighton-Burwell said this process is also valuable for applicants on a case. “A lot of people want the zoning squared away before they move to site plan,” he said.

Also, the cases that come before the board are each considered uniquely. Leighton-Burwell emphasized that decisions do not set a precedent for future approvals.

Board Member Darryl Pruett supported that argument, noting that variances are tied to specific projects and are dependent on developers executing the project presented to the board.

The discussion surrounding “pre-clearance” was in response to the Zilker Neighborhood Association’s request for clarification on the policy. Piper confirmed that he had heard the explanation and would share the information with the neighborhood.

Photo by John Flynn.

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