Wednesday, June 17, 2020 by Jessi Devenyns

Board of Adjustment debates request to sacrifice heritage tree or waterfront overlay

The Board of Adjustment exists to help residents achieve variances from the Land Development Code’s building regulations, but only if an applicant is willing to provide information and evidence of a valid hardship.

Dan Coops, the owner of 71 Julius St., has appeared before the board several times in an effort to gain a variance to increase the allowable impervious cover from 30 to 36.8 percent within the waterfront overlay setback on his property facing Lady Bird Lake. On June 8, the board again postponed his request and asked him to return with alternative designs for the construction of a single-family residence and garage with a second-floor guest house on the quarter-acre lot.

Last May, Coops came before the board with the same set of rationale to support his variance request and was asked to return with a different design to lessen the impact of construction in the waterfront overlay setback. On Monday, instead of presenting the board with substitute design solutions, he said, “If we are denied the variances on the waterfront overlay, that leads right to the tree removal,” referring to a 35-inch heritage tree on the property that limits architectural flexibility.

Removing a heritage tree would require a separate variance that includes a review from the city arborist to determine that the removal request is not due to a design choice. A protected tree may be removed without a variance if the tree is diseased, dead or presents an “imminent hazard to life or property.”

Board Member Rahm McDaniel suggested the applicant consider coming up with a creative solution rather than immediately resorting to removing a heritage tree to free up square footage at the front of the lot. He emphasized that the suggestion last month to explore other design options on the north side of the lot was an effort to work with the applicant, not bar him from constructing his desired home on the site.

“That’s why the Board of Adjustment exists, is to find the ways around this, but you have to give us something to work with,” said McDaniel, adding, “We are in many ways just as boxed in by the code as you are.”

The owners of this East Austin property discovered the existence of the waterfront overlay late in the design process for this new-build structure. Coops called the secondary overlay traversing his lot a “surprise factor,” both for him and for the architect and engineer on the project. At the time it was identified, Coops told the board he was already at a stage in the planning process where he was fully invested in and committed to the designs.

While board members clarified that financial hardship cannot be considered when evaluating the merits of a variance request, Board Member Brooke Bailey noted it was “very troublesome” that the professionals leading this design process were unaware of the existence of waterfront overlays in the code.

Board Member Darryl Pruett pointed to page 44 in the backup, where a survey dated July 2018 said, “The owner should check the local governing authorities about building setbacks.”

“They were told to check this stuff,” Pruett pointed out.

To give Coops another chance to come up with a feasible design alternative that preserves the heritage tree and reduces the amount of impervious cover needed in the waterfront overlay zone, the Board of Adjustment unanimously postponed the case until next month. Board members said the heritage tree is a “bona fide” hardship that needs to be worked around.

However, Board Member Michael Von Ohlen warned Coops that “your approach right now isn’t quite going to get you there. Don’t bring us something back without investigating some options.”

Board Member Melissa Hawthorne was absent.

Map courtesy of the city of Austin.

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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.

City of Austin Heritage Tree Ordinance: The city ordinance that prohibits the unlicensed destruction of trees greater than 19 inches in diameter.

Waterfront Overlay: Development regulations for the Waterfront Overlay District were established in 1989, and extends from Lady Bird Lake into its near tributaries. The purpose of the overlay is to promote a "harmonious" transition between downtown development and the parkland that surrounds the water.

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