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Applicant contests the math of supermajority at Board of Adjustment vote

Thursday, July 16, 2020 by Jessi Devenyns

After several postponements and a design adjustment for the home at 71 Julius St., the Board of Adjustment narrowly failed to approve a motion to grant a variance to allow the Holly neighborhood house to be built within the waterfront overlay setback.

Board members Melissa Hawthorne and Darryl Pruett voted against a motion to approve and Chair Don Leighton-Burwell abstained, resulting in an 8-2-1 vote and an unapproved variance. Approving a variance requires a supermajority, which, according to city legal counsel, is nine votes on the 11-member board.

However, property owner Dan Coops argued that a supermajority is eight votes. “I don’t think we’re doing the math correctly,” he told the board after the vote.

Due to Leighton-Burwell’s abstention from the vote, Coops argued that the 75 percent affirmative vote requirement should be based on a 10-member board rather than 11. The Board of Adjustment’s bylaws say, “For purposes of calculating a required supermajority, the total number of positions excludes any vacancies (i.e., seats for which no appointment has been made) and members who are legally disqualified from voting on a particular case.” Coops said an abstention disqualified the chair from voting, making a supermajority 7.5 votes, rounded up to 8 to account for a whole person.

Board legal counsel Lee Simmons said the full panel of board members counted in the case of this vote. Board liaison Elaine Ramirez confirmed for the Austin Monitor that the vote stands.

Last month, Coops came before the Board of Adjustment with an ultimatum: If the board did not grant his variance request to build with increased impervious cover within a waterfront overlay setback, he would seek to remove the 35-inch heritage pecan tree on the lot. Removing a heritage tree requires a separate variance with a high bar for approval, including a review from the city arborist and proof that the removal of the tree is not the result of a design choice.

Instead, when Coops returned this month he reduced his variance request, eliminating the need for increased impervious cover in the waterfront overlay setback, and asking only for permission to build within the setback boundaries.

Originally, he requested an increase of the allowable impervious cover from 30 to 36.8 percent. In July he returned before the board with a plan that reduced the impervious cover to 29.9 percent in the overlay and shifted the structures farther out of the setback without encroaching on the critical root zones of three protected trees on the property. To accomplish this, Coops said, he and his architect worked to reduce the size of the main house and the garage apartment, removed the porches and reduced the size of the adjoining carport. In previous testimony, he said he discovered the existence of the waterfront overlay late in the design process, which has made it difficult to redesign the planned structure.

Board Member Michael Von Ohlen said that the heritage tree and overlay setback restrictions were limiting and did not allow for reasonable use of the property. “Some of the other houses along this way are in the same situation. They have just been grandfathered in,” he said.

Even with Coops’ testimony that he’d made substantial design shifts to accommodate the board’s June request to preserve the protected trees and reduce the amount of impervious cover in the waterfront overlay zone, Board Member Pruett said that the alterations were not substantial.

The motion to approve the request for the variance failed.

Map courtesy of the city of Austin.

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