ITEM02 C15-2024-0025 ADV PACKET APEAL1 PART1 — original pdf
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BOA INTERPRETATION APPEAL COVERSHEET RE-CONSIDERATION ITEM02/1- APPEAL1 CASE: C15-2024-0025 BOA DATE: October 14th, 2024 ADDRESS: 6708 Bridge Hill Cv COUNCIL DISTRICT: 10 OWNER: Christi S. May APPELLANT: Warren Konkel APPELLANT’S AGENT: Nicholl Wade ZONING: SF-3 / LA LEGAL DESCRIPTION: LOT 5 BRIDGE HILL SUBD APPEAL REQUEST: an appeal challenging staff decision regarding impervious cover approved with building permit 2023-129658BP & 2023-129659BP. SUMMARY: any proposed development must comply with the provisions of the LDC ISSUES: errors on permit application, does not remedy unpermitted construction from 2014 and 2021, vastly exceeds the “grandfathered original construction” IC allowance of 11,408 sq. ft. ZONING LAND USES Site North South East West SF-2 / LA SF-2 / LA SF-2 / LA SF-2 LA Single-Family Single-Family Single-Family Single-Family Lake Austin NEIGHBORHOOD ORGANIZATIONS: Austin Independent School District BRNA ASSOCIATION INC. City of Rollingwood Friends of Austin Neighborhoods Glenlake Neighborhood Association Save Our Springs Alliance TNR BCP – Travis County Natural Resources The Creek at Riverbend Neighborhood Association ITEM02/2- APPEAL1 CITY OF AUSTIN Board of Adjustment Interpretation Appeal 1 and Appeal 2 Decision Sheet ITEM05 DATE: September 9, 2024 CASE NUMBER: C15-2024-0025 ___Y____Thomas Ates (D1) ___-____Bianca A Medina-Leal (D2) OUT ___Y____Jessica Cohen (D3) ___Y____Yung-ju Kim (D4) ___Y____Melissa Hawthorne (D5) ___-____Jeffery Bowen (D6) OUT ___Y____Janel Venzant (D7) ___N____Margaret Shahrestani (D8) ___Y____Brian Poteet (D9) ___Y____Michael Von Ohlen (D10) ___-____Marcel Gutierrez-Garza (M) RESIGNED ___-____VACANT (Alternate) (M) ___Y____Suzanne Valentine (Alternate) (M) ___-____VACANT (Alternate) (M) APPELLANT’S AGENT: Nicholl Wade APPELLANT: Warren Konkel OWNER: Christy May ADDRESS: 6708 BRIDGE HILL CV SUMMARY OF APPEAL: Appellant challenges issuance of Building Permit 2023-12958 BP on the grounds that the City incorrectly approved impervious cover (IC) of approximately 12,811 square feet, which exceeds IC limitations applicable within the Lake Austin (LA) zoning district. BOARD’S DECISION: Aug 12, 2024 - POSTPONED TO September 9, 2024, DUE TO NOT HAVING ENOUGH BOARD MEMBERS FOR VOTING PURPOSES; September 9, 2024 The public hearing was closed by Madam Chair Jessica Cohen, Board member Michael Von Ohlen’s motion to deny the appeal request and uphold staff’s decision; Board member Brian Poteet second on 8-1 votes (Board member Maggie Shahrestani nay); APPEAL REQUEST DENIED AND UPHELD STAFF’S DECISION. RENOTIFICATION-SUMMARY OF APPEAL: Appellant challenges issuance of: Building Permit 2023-129658 BP and ITEM02/3- APPEAL1 Building Permit 2023-129659BP on the grounds that the City of Austin incorrectly approved impervious cover (IC) of approximately 12,811 square feet, which exceeds IC limitations applicable within the Lake Austin (LA) zoning district. FINDING: 1. There is a reasonable doubt of difference of interpretation as to the specific intent of the regulations or map in that: 2. An appeal of use provisions could clearly permit a use which is in character with the uses enumerated for the various zones and with the objectives of the zone in question because: 3. The interpretation will not grant a special privilege to one property inconsistent with other properties or uses similarly situated in that: Elaine Ramirez Executive Liaison Diana Ramirez for Jessica Cohen Chair ITEM02/4- APPEAL1 2024-000021 BA MOTION TO RECONSIDER TO THE AUSTIN BOARD OF ADJUSTMENT: Warren Konkel (“Applicant”) submits this Motion to Reconsider pursuant to the Rule V(F)(4) of the Board of Adjustment Rules of Procedure and shows the Board the following: I. EXECUTIVE SUMMARY The Applicant filed two appeals related to the Development Services Department’s (“DSD”) decision to reactive permits at 6708 Bridge Hill Cove (“Property”), despite having knowledge of non-compliant structures and excessive impervious cover (“IC”). The hearing primarily focused on the vested rights afforded to the Property. Importantly, the vested rights were initially denied, and then granted upon redetermination after the Applicant filed his first appeal. The Interpretation did not fully consider the issues raised related to violations of the Land Development Code, specifically sections 25-1-61(A), 25-1-82(E), and 25-2-551(C)(2). The Board should reconsider the Interpretation under those Code provisions. II. PROCEDURAL REQUIREMENTS The Applicant satisfies the procedural requirements for a Motion to Reconsider because (i) the Board heard and decided the Interpretation on September 9, 2024, and (ii) the Applicant had original standing in the matter and is an aggrieved party. The Interpretation was in error because there was no determination on whether DSD’s decision to reactivate 2023-129659 BP prior to a vested rights determination was erroneous. Additionally, the Interpretation did not consider whether reactivating the permits will result in modifications to noncomplying structures “in a manner that increases the degree to which the structure violates a requirement that caused the ITEM02/5- APPEAL1 structure to be noncomplying.”1 Therefore, the Interpretation should be reconsidered under the applicable Code sections and with clarifications to the evidence. III. ARGUMENT A. DSD’s Decision to Reactivate 2023-129659 BP without Vested Rights was Erroneous. To clarify the factual background leading up to the Interpretation, earlier this year, the Appellant raised his concerns about construction on the Property. Shortly thereafter, the City placed 2023-129658 BP2 (“Cabana Permit”) and 2023-129659 BP on hold (“Pool Permit”).3 June 12, 2024 June 21, 2024 July 11, 2024 July 19, 2024 August 1, 2024 August 9, 2024 Property owner’s request for vested rights denied Re-activation of the Cabana Permit Appeal of re-activation of the Cabana Permit Re-determination granting Vested Right Pool Permit re-activated Appeal of re-activation of the Pool Permit The sole reason for the Cabana Permit appeal was that DSD re-activated the permit even though the Property owner did not have a variance or vested rights. The fact that a re-determination was later issued does not vitiate the question of why the Cabana Permit was re-activated and whether doing so was proper under the Land Development Code. Further, DSD’s urgency in pushing the construction forward is reason enough to question whether the underlying decision was erroneous. 1 LDC § 25-2-963. 2 This permit relates to construction of a new pool house/cabana. 3 This permits relates to modifying the pre-existing pool. ITEM02/6- APPEAL1 B. Allowing Construction of Additional IC without an Approved Plan Review is Erroneous Most importantly, everyone agrees the Property has non-complying structures and that the Property owner intentionally added IC without a permit. Regardless, the only limitation to the Property’s continued development is an open administrative hold to purportedly ensure compliance with IC limitations. The BOA has jurisdiction to enforce § 25-2-963(C) related to modifications to non-complying structures. So, the outstanding questions are (i) whether a broad hold without specific requirements regarding the modifications is proper; and (ii) how can DSD enforce any requirements for the modification if those plans are not part of the approved plan review or permits? C. The Property was Platted on June 29, 1982 During the hearing, questions were raised over the plat date, which is critical in determining whether LA Zoning regulations apply. Specifically, the regulations apply if a property was platted after April 22, 1982. The Property owner’s counsel stated that the plat date was sometime in 1982, but it was technically 1981 because that was the year the application was filed. The plat clearly states June 29, 1982. There is no authority to support that the application date has any bearing on the plat date. Moreover, the application was not even executed until April 30, 1982. ITEM02/7- APPEAL1 IV. REQUESTED RELIEF The Applicant requests that the Board reconsider the Interpretation to address the following issues, which were raised in the underlying appeals: A. Does Land Development Code § 25-1-61 require the Property owner to obtain a variance in addition to vested rights? B. Was DSD’s decision to reactivate 2023-129659 BP prior to a vested rights determination erroneous? C. In light of Land Development Code § 25-2-963(C), is construction proper without a plan review or permitted plans showing how the Property owner will bring IC into compliance? DATED: September 19, 2024 Respectfully submitted, THE ROARTY LAW FIRM, PLLC 3701 Bee Caves Road Suite 102 Austin, Texas 78746 Phone: (512) 692-6870 Fax: (512) 772-3166 By: Rekha Roarty State Bar No. 24092020 Rekha@roartylawfirm.com Nicholl Wade State Bar No. 24097729 Nicholl@roartylawfirm.com Scott Butler State Bar No. 24126737 Scott@roartylawfirm.com ATTORNEYS FOR APPELLANT ITEM02/9- APPEAL1 CITY OF AUSTIN Board of Adjustment Interpretation Appeal Decision Sheet ITEM03 DATE: August 12, 2024 CASE NUMBER: C15-2024-0025 _______Thomas Ates (D1) _______Bianca A Medina-Leal (D2) _______Jessica Cohen (D3) _______Yung-ju Kim (D4) _______Melissa Hawthorne (D5) _______Jeffery Bowen (D6) _______Janel Venzant (D7) _______Margaret Shahrestani (D8) _______Brian Poteet (D9) _______Michael Von Ohlen (D10) _______Marcel Gutierrez-Garza (M) _______VACANT (Alternate) (M) _______Suzanne Valentine (Alternate) (M) _______VACANT (Alternate) (M) APPELLANT’S AGENT: Nicholl Wade APPELLANT: Warren Konkel OWNER: Christy May ADDRESS: 6708 BRIDGE HILL CV SUMMARY OF APPEAL: Appellant challenges issuance of Building Permit 2023-12958 BP on the grounds that the City incorrectly approved impervious cover (IC) of approximately 12,811 square feet, which exceeds IC limitations applicable within the Lake Austin (LA) zoning district. BOARD’S DECISION: POSTPONED TO September 9, 2024, DUE TO NOT HAVING ENOUGH BOARD MEMBERS FOR VOTING PURPOSES FINDING: 1. There is a reasonable doubt of difference of interpretation as to the specific intent of the regulations or map in that: ITEM02/10- APPEAL1 2. An appeal of use provisions could clearly permit a use which is in character with the uses enumerated for the various zones and with the objectives of the zone in question because: 3. The interpretation will not grant a special privilege to one property inconsistent with other properties or uses similarly situated in that: Elaine Ramirez Executive Liaison Jessica Cohen Chair for BOA INTERPRETATION APPEAL COVERSHEET RE-NOTIFICATION ITEM02/11- APPEAL1 CASE: C15-2024-0025 BOA DATE: September 9, 2024 ADDRESS: 6708 Bridge Hill Cv COUNCIL DISTRICT: 10 OWNER: Christi S. May APPELLANT: Warren Konkel APPELLANT’S AGENT: Nicholl Wade ZONING: SF-3 / LA LEGAL DESCRIPTION: LOT 5 BRIDGE HILL SUBD APPEAL REQUEST: an appeal challenging staff decision regarding impervious cover approved with building permit 2023-129658BP & 2023-129659BP. SUMMARY: any proposed development must comply with the provisions of the LDC ISSUES: errors on permit application, does not remedy unpermitted construction from 2014 and 2021, vastly exceeds the “grandfathered original construction” IC allowance of 11,408 sq. ft. ZONING LAND USES Site North South East West SF-2 / LA SF-2 / LA SF-2 / LA SF-2 LA Single-Family Single-Family Single-Family Single-Family Lake Austin NEIGHBORHOOD ORGANIZATIONS: Austin Independent School District BRNA ASSOCIATION INC. City of Rollingwood Friends of Austin Neighborhoods Glenlake Neighborhood Association Save Our Springs Alliance TNR BCP – Travis County Natural Resources The Creek at Riverbend Neighborhood Association BOA INTERPRETATION APPEAL COVERSHEET ITEM02/12- APPEAL1 CASE: C15-2024-0025 BOA DATE: August 12th, 2024 ADDRESS: 6708 Bridge Hill Cv COUNCIL DISTRICT: 10 APPELLANT: Warren Konkel OWNER: Christi S. May APPELLANT: Nicholl Wade ZONING: SF-3 / LA LEGAL DESCRIPTION: LOT 5 BRIDGE HILL SUBD APPEAL REQUEST: an appeal challenging staff decision regarding impervious cover approved with building permit 2023-129658BP. SUMMARY: any proposed development must comply with the provisions of the LDC ISSUES: errors on permit application, does not remedy unpermitted construction from 2014 and 2021, vastly exceeds the “grandfathered original construction” IC allowance of 11,408 sq. ft. ZONING LAND USES Site North South East West SF-2 / LA SF-2 / LA SF-2 / LA SF-2 LA Single-Family Single-Family Single-Family Single-Family Lake Austin NEIGHBORHOOD ORGANIZATIONS: Austin Independent School District BRNA ASSOCIATION INC. City of Rollingwood Friends of Austin Neighborhoods Glenlake Neighborhood Association Save Our Springs Alliance TNR BCP – Travis County Natural Resources The Creek at Riverbend Neighborhood Association ITEM02/13- APPEAL1 ITEM02/14- APPEAL1 ITEM02/15- APPEAL1 ITEM02/16- APPEAL1 ITEM02/17- APPEAL1 ITEM02/18- APPEAL1 ITEM02/19- APPEAL1 ITEM02/20- APPEAL1 ITEM02/21- APPEAL1 ITEM02/22- APPEAL1 ITEM02/23- APPEAL1 ITEM02/24- APPEAL1 ITEM02/25- APPEAL1 ITEM02/26- APPEAL1 For Office Use Only Permit Information Download application before entering information. Submittal Requirements Property Information Demolition Type Demolition Contractor Information Structural Information Owner Applicant ITEM02/27- APPEAL1 Additional Questions Consent, Authorizations, and Signatures ITEM02/28- APPEAL1 ITEM02/29- APPEAL1 ITEM02/30- APPEAL1 ITEM02/31- APPEAL1 ITEM02/32- APPEAL1 ITEM02/33- APPEAL1 ITEM02/34- APPEAL1 ITEM02/35- APPEAL1 ITEM02/36- APPEAL1 ITEM02/37- APPEAL1 ITEM02/38- APPEAL1 ITEM02/39- APPEAL1 ITEM02/40- APPEAL1 ITEM02/41- APPEAL1 ITEM02/42- APPEAL1 ITEM02/43- APPEAL1 ITEM02/44- APPEAL1 ITEM02/45- APPEAL1 AUSTIN ENERGY Building Service Planning Application (BSPA) This form to be used for review of Residential Building Permits only For use in DAC only 1 L A E P P A / - 6 4 2 0 M E T I 1 2 0 2 , 4 2 r a M , m a 2 4 : 6 t a i j z a d y B ITEM02/58- APPEAL1 ITEM02/66- APPEAL1 ITEM02/67- APPEAL1 ITEM02/68- APPEAL1 ITEM02/69- APPEAL1 ITEM02/70- APPEAL1 ITEM02/71- APPEAL1 ITEM02/72- APPEAL1 For Office Use Only Permit Information Download application before entering information. Submittal Requirements Property Information Demolition Type Demolition Contractor Information Structural Information Owner Applicant ITEM02/73- APPEAL1 Additional Questions Consent, Authorizations, and Signatures ITEM02/74- APPEAL1 ITEM02/75- APPEAL1 ITEM02/76- APPEAL1 ITEM02/77- APPEAL1 AUSTIN ENERGY Building Service Planning Application (BSPA) This form to be used for review of Residential Building Permits only For use in DAC only 1 L A E P P A / - 8 7 2 0 M E T I 1 2 0 2 , 4 2 r a M , m a 2 4 : 6 t a i j z a d y B