Photo by city of Austin
Monday, June 15, 2020 by Jessi Devenyns

Board of Adjustment calls retroactive variance request a ‘cluster’

Although the structure at 1401 E. Third St. is already completed, it cannot pass final inspection due to encroachment into the property’s side setback.

In an effort to avoid reconstructing the entire building, the applicant came before the Board of Adjustment on June 8 to seek a retroactive variance to decrease the minimum interior side setback from the required 5-foot distance to 2.77 feet. After a lengthy discussion that picked apart several disparities between the site plan and what’s actually constructed on the ground, the Board of Adjustment voted to deny the request for a variance.

“The more this thing is getting scratched, the worse it’s starting to smell,” Board Member Michael Von Ohlen said. The application for this variance was filed as a single-family residence. However, the structure has three stories, four access staircases and a rooftop deck. “I would never on my wildest days consider it to be a single-family (residence),” he said.

David Cancialosi, who was representing the applicant on the property, said the building was a single-family home with an accessory apartment. Earlier in the meeting he called it a duplex. He clarified for the Austin Monitor, “The application for the building permit was filed as single-family residential with an accessory apartment.” The apartment, he said, is within the single-family home which makes the plans appear to be a mirror-image duplex. “It’s a confusing property unless you really study the plans,” he acknowledged.

The confusion about the nature of the building was further compounded by the board’s questions on how the building ended up encroaching into the setback zone. Cancialosi told the board it was due to a survey error that resulted in having multiple inconsistent surveys on file.

Bryce Allison, who owns the adjacent house, told the board that the property line demarcation fence is actually inside his lot. He added, “I’m fairly certain that the sidewalk that is there crosses into my property.” According to photos of the finished building, the sidewalk runs along the edge of the building to provide access.

“In the military we call this a cluster,” Von Ohlen said.

Cancialosi told board members he was willing to work with the neighbors to come up with mitigation efforts to salvage the building. He offered to install a fire suppression system throughout the entire structure, fireproof the wall located in the setback and add a vegetative screen between the properties. Additionally, he said the doors to enter the building would be moved from the interior lot line to the opposite side of the building.

Board members, however, indicated that mitigation was insufficient. Had this variance request come before them before the property was constructed, they would not have approved it, they said.

Both the board and the applicant agreed that the building’s placement breached code requirements, but Cancialosi asked the board to consider a postponement in order to devise an alternative solution with the neighbors and avoid “an unreasonable ending” that would necessitate a substantial change to the building’s structure.

He told the Monitor that the construction that bleeds over the setback line was a mistake. “I find it hard to believe that these guys really did operate under the knowledge that they were noncompliant,” he said.

Despite the request for postponement, the board voted to deny the variance. Board Member Veronica Rivera voted against the motion and Board Member William Hodge abstained, as he was the architect on the project several years ago. Board Member Melissa Hawthorne was absent.

Von Ohlen suggested that the property owners speak with their contractor. “If there has been a mistake, that’s what those professionals have insurance for,” he said.

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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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