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Subdivision change initiated to help homeowner

Tuesday, August 4, 2020 by Jo Clifton

Council Member Kathie Tovo and her staff have been trying for more than a year to help two constituents in the Bouldin Creek neighborhood solve a complicated subdivision problem that prevents them from building an addition to their 486-square-foot home. A divided City Council took one step forward in providing a remedy for them at last Wednesday’s meeting.

On the way to that vote, some Council members argued that they needed a legal ruling related to whether they could act on the subdivision code change because of Judge Jan Soifer’s determination that the city broke the law when it attempted to adopt a new Land Development Code by refusing to provide notice and protest rights and requiring only seven votes, as opposed to nine.

Bouldin Creek homeowner Elizabeth Carey and her partner purchased their home at the corner of South Fifth and West Gibson streets more than two years ago. They did what is expected of people buying houses. As she told Council, “Before closing on the house, I checked (Travis Central Appraisal District)’s records and purchased title insurance. I saw the property has its own tax ID; city taxes had been paid. It’s changed hands 10 times since 1946. It has its own driveway and utilities.”

She continued, “Nothing seemed out of the norm. It wasn’t until we submitted a building permit application we were given the news that the city had no record of a subdivision application from 1946. So the city considers our lot and the next-door neighbor’s at 1303 S. Fifth as one large lot.”

Under city regulations, they were required to have a certain width across the front of the property, which was not the case.

Eventually, Carey was advised to seek a variance from the Board of Adjustment to deal with the frontage problem. With the support of their neighbors as well as the Bouldin Creek Neighborhood Association, the couple were successful in getting the variance from the Board of Adjustment, which they thought would allow them to get a building permit. As Carey told Council, “Even the Development Services Department was confused,” and gave them the OK to proceed, but then revoked it 30 minutes later.

Tovo said that while the Board of Adjustment granted the variance, the city’s “subdivision code does not allow a variance (from that requirement) to help meet the requirements of the subdivision.” She explained that the couple could go through a platting process, but that would probably cost $15,000 or more.

A small change to the subdivision code would allow the couple, and perhaps a few other people in a similar position, to move forward with their plans to build an addition to their house. If Council approves the change, it would allow the director of the Development Services Department to grant the couple a platting exemption.

“This is an unfortunate scenario for the property owner,” Council Member Jimmy Flannigan said. “Unfortunately, I feel that we are in a very challenging position right now.” He was referring obliquely to the lawsuit over the Land Development Code votes, which the city lost. He made a motion to postpone the item until Sept. 17.

Mayor Steve Adler said he agreed that they should postpone the matter until the city gets a ruling back from Judge Soifer on a motion the city made for clarification of her March ruling. Adler joined Flannigan and Council members Paige Ellis and Greg Casar in voting for the postponement, even though Tovo had explained that the homeowners would have to start over with their variance if Council did not act sooner.

After losing on the postponement vote, Adler joined the majority and Ellis abstained, while Flannigan voted no on initiating the subdivision code revision. The matter is expected to come back to Council on Sept. 3. Under Tovo’s resolution, staffers are directed to bring Council an amendment to City Code Chapter 25-4 that would allow “a minimum lot width variance from the Board of Adjustment to satisfy the minimum frontage requirement for an exception from platting.”

Many people were surprised to hear that the city filed a “request for clarification regarding the scope of the court’s final judgment” with Soifer on July 16, months after losing the case and filing an appeal, taking it out of Soifer’s hands.

On Thursday, the day after this argument was going on at Council, Soifer sent a message to the litigants that said, “After further review, the court finds that it lacks jurisdiction to clarify the Final Judgment in this matter.” The matter is now pending at the 14th Court of Appeals because the case was transferred there (from the 3rd Court of Appeals) as part of the state’s effort to equalize the number of cases before each appellate court.

The plaintiffs in the case against the city accused the city of “attempting to evade (Judge Soifer’s) March 2020 injunction requiring the city of Austin to provide notice and protest rights when property is rezoned.” According to a press release, Douglas M. Becker, who represented Francis Acuña and the other plaintiffs, said, “My clients, Austin homeowners, are gratified that the court rejected the city’s attempt to circumvent their state-mandated rights. They’re disappointed that the city continues to refuse to set up a broad stakeholder process to reach a community consensus Land Development Code. The city’s litigious approach is costly, fruitless and undermines community trust.”

In its motion seeking clarification, the city laid out three areas it would like to change in the Land Development Code: change three zoning overlays near Austin-Bergstrom International Airport; amend the North Burnet Gateway’s regulating plan to allow construction of an electric utility substation in the area; and most importantly, amend SF-2 and SF-3 single-family zoning districts by reducing minimum lot sizes or eliminating duplex restrictions. The latter subject most concerns the plaintiffs, but the judge, now lacking jurisdiction, will not help either side by giving an opinion.

Due to the coronavirus pandemic, it is not clear when the Court of Appeals will consider this matter.

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This story has been changed since publication to correct the spelling of Elizabeth Carey’s name.

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