Zilker substandard lot case sparks debate at Board of Adjustment

An appeal to grant a variance to homebuilders on Kinney Avenue raised questions of precedent and procedure at the Board of Adjustment meeting this past Monday.

On behalf of property owner Molly Development Company, applicant Ian Ellis sought the board’s permission to waive regulations over construction on smaller, or “substandard” lots. The board voted unanimously to postpone the case until December, but not before engaging in considerable back-and-forth over some splintering opinions.

The lot at 1003 Kinney Ave., previously home to a structure Ellis deemed “in a state of disrepair … not worth renovating or adding onto,” currently sits empty. Molly DevCo demolished the residence with the hope of building a new two-story single-family home with a pool, but has run into challenges on account of the lot’s size.

The lot, which was also mismeasured by the Travis Central Appraisal District, sits a few hundred square feet under the minimum lot size requirement for the Family Residence (SF-3) zoning category under which the proposed remodel would fall. Ellis noted that the project was also hampered by a bordering elm tree and undeveloped alley at the back of the property.

Voicing opposition was Linda Mizell of the Zilker Neighborhood Association, who claimed that Ellis had not demonstrated sufficient hardship, and listed a string of nearby cases in which similar proposals were rejected. “The granting of this variance would amount to a privilege that other properties in similar circumstances have been denied,” Mizell said. “We offer two alternatives, one encouraging the owner to purchase or persuade the city to vacate a portion of the alley, or to limit new construction to the dimensions of the demolished house.”

The problem with this suggestion, Ellis pointed out, is that the city has refused to forfeit the alley. “The city simply won’t give a portion of the alley because then there is some sort of need to develop the entire length of it,” he explained. “Even though some of the neighbors are already using it.”

Unfortunately for the neighborhood association, many found Ellis’ proposal reasonable. “We have repeatedly approved requests like this, where we considered the configuration of the lot an intrinsic hardship to construct something otherwise encountered,” Board Member Rahm McDaniel said.

Ellis ruffled feathers, however, with his failure to consult the Zilker Neighborhood Association before requesting the variance. When asked, Ellis claimed he was unaware of the opposition. “I found out a few minutes ago, as it was happening live.”

“I have a real problem with people coming before the board not having talked to the neighborhood association,” Board Member Darryl Pruett said. “And with the way it was presented, with Mr. Ellis claiming to be the owner when it’s really an LLC – it’s not his residence, it’s a development deal. Given those circumstances I think it’s imperative that they go and get neighborhood buy-in.”

McDaniel pushed back, wondering if the issue was relevant to the board’s role. “If we’re holding this case as arbiters or mediators, rather than judges in a proceeding, I’m not sure that’s what we’re being asked to do here,” he offered. “And I’m not sure that it’s fair to the applicant either, since we’re outsourcing our role to someone.”

Still, members reasoned that a postponement until next month’s meeting would give Ellis time to gather more information that may impact the case. Board Member Barbara Mcarthur reminded the applicant that lots subdivided before 1946 did not have to seek the board’s approval, recommending that the corresponding records be evaluated before moving forward.

Board Member Richard Smith also criticized the neighborhood association for its rushed positioning in the case.

“I’m very troubled by the fact that the neighborhood association waited until tonight. We didn’t have this in our packet, we were unable to prepare,” Smith said. “Had they come to the podium and asked for a postponement to study it, I wouldn’t be reacting this way. Coming in sort of broad opposition prior to a meeting like this seems like bad form.”

The case will return to the board at its December meeting, after giving both sides further time to deliberate.

Rendering of the proposed project courtesy of the city of Austin.

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Posted In: Land Development Code, District 5