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Planning Commission approves subdivision in West Oak Hill despite deed restriction concerns

Thursday, May 21, 2020 by Nina Hernandez

At its May 12 meeting, the Planning Commission unanimously approved a preliminary plan for the Twilight Gardens subdivision in West Oak Hill. The plan will create 20 lots on 17.92 acres in Southwest Austin.

Jerry Perales of Perales Land Development, who is representing the client, told commissioners that the project at 8316 Twilight Terrace Drive will also add 3.77 acres of dedicated parkland to the site. The developer has also worked with a wetland biologist to relocate a pile of debris on the site.

“With that, we’re improving the drainage to the site by capturing all site flows and relieving the adjoining neighbors by creating pipes and channels to put the water back into the creek,” said Perales. “So we’re improving the neighborhood using the neighborhood plan to create a density that includes 17.92 acres with 16 lots for homes in an area that really would be considered suburban infill, in an area that is necessary for homes to be developed, with our home shortage.”

The homeowners of the lots in the Nowotny Acres subdivision, represented by attorney Terrence Irion, objected to the plan on the grounds that two deed restrictions establish the minimum lot size at one acre.

“You have proposed a preliminary plan for single-family lots on the property smaller than one acre,” Irion wrote in a letter to the commission and staff. “My clients object to the platting of this property into lots smaller than one acre in conflict with the restrictive covenants enforceable against this property.”

The city doesn’t enforce the deed restrictions; rather it’s a legal matter between the two property owners. Questioned as to why the applicant would continue to go forward with a project knowing he could be sued, Perales assured commissioners that his client has seen cases like this before. “We haven’t lost a single one,” he said.

Ultimately, all commissioners agreed that the project should be approved. Whether or not the project can actually be built is a decision for the courts. Commissioners largely agreed with Perales that the proposal is superior to the conditions set in the deed restrictions, and less dense than will ultimately be allowed under the rewrite of the Land Development Code.

“I definitely support the neighborhood in looking after their deed restrictions, but I think, with the half-acre lots, they’re getting a good deal compared to what could be built there now or in the future,” Commissioner Todd Shaw said. “So I’ll be supporting staff.”

Commissioner James Shieh echoed that sentiment, pointing out that the new Land Development Code is likely to allow denser projects than current code.

“I know it sounds like a half-acre is less than the deed restriction, but they’re also dedicating parkland to it, so if you look at the net amount, whether it’s floodplain or not, it’s still usable space to the public and enhances the public experience,” said Shieh. “So I think in the end it’s a good balance.”

Diagram courtesy of the city of Austin.

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