ITEM07 C15-2026-0005 STAFF REPORT — original pdf

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To: From: Chair Cohen Board of Adjustment Members Brent Lloyd Development Officer Austin Development Services Dept. Date: March 2, 2026 Subject: Case No. C15-2026-0005 | Appeal of Administrative Decision Approving Construction of Three-Unit Use at 205 East 34th St. (PR No. 2025-140201) On January 26, 2026, Peter Journeay-Kaler filed an appeal with the Board of Adjustment (BOA) challenging a decision by Austin Development Services (ADS) approving construction of a three-unit residential use at 205 East 34th Street. As explained below, ADS recommends that the Board uphold staff’s determination and dismiss the appeal. Summary of Appeal Issues Appellant argues that the approved plans fail to comply with four categories of regulation, which are summarized here along with ADS’s response: Regulation Appellant’s Position ADS’s Position North University Neighborhood Conservation Combining District (NCCD) Three-unit uses are subject to NCCD FAR limit of 0.40 or, alternatively, 0.50 Three-unit uses are subject to 0.65 FAR limit per the “HOME” ordinance (Sec. 25-2-773) International Residential Code (IRC) Bedroom count exceeds limit for IRC review, so project is subject to International Building Code (IBC) Plans fail to meet Visitability requirements Stairs lack required tread depth Staff correctly applied IRC, IFC, and completeness requirements. None of these requirements are zoning regulations, so they are outside the BOA’s scope of review International Fire Code (IFC) Insufficient emergency access Application Completeness Permit application incomplete ITEM07/1-STAFF REPORTCase No. C15-2026-0005 BOA Appeal re: 205 East 34th Street Staff Report ADS Response to Appeal 1. FAR Issues In approving plans for this project (PR No. 2025-140201), ADS applied the 0.65 FAR limit applicable to three-unit residential uses under the “HOME” ordinance codified in Sec. 25- 2-773(E)(4)(a) of the Land Development Code. Appellant asks the Board to reverse this determination and instead find that three-unit uses are subject to the NUNA-NCCD’s 0.40 FAR limit for duplexes and two-unit uses or, alternatively, the 0.50 FAR limit that applies to most multi-family (MF) zoned lots within the NCCD. ADS recommends that the Board uphold staff’s determination that the 0.65 FAR limit applies to this project for the following reasons: • The NUNA-NCCD Ordinance says to apply the Land Development Code unless it conflicts with the NCCD. The NUNA-NCCD is silent on three-unit uses. Per direction in the original ordinance adopting the NCCD, this means that three-unit uses are subject to applicable requirements of the Land Development Code. See Ordinance No. 040826-58, Part 5, Sec. 1.a (“Except as provided in this section, the permitted and conditional uses for the residential base zoning districts apply in accordance with the Code.”) • The NUNA-NCCD Ordinance specifically limits FAR for some uses, but not others, and staff is bound to apply those rules as written. When a regulation specifically applies to certain uses, but not others, staff must presume that it was intended to apply only to those uses. Council previously amended the NUNA- NCCD to apply the 0.40 FAR limit to two-unit uses, 1 but in the 2+ years since HOME was adopted, it has not amended the NCCD to establish FAR limits for three-unit uses. So there is no basis to conclude that three-unit uses are subject to any of the FAR limits established under the NCCD. • When the Board previously considered this project, it did not overrule staff’s determination that the 0.65 FAR limit applies. The issue of what FAR limit applies to development of this property was previously before the Board in Case No. C15-2025-0035, which was decided at the October 13, 2025 meeting. In that appeal, the Board specifically overruled staff’s decision to exclude attic 1 The original NUNA-NCCD ordinance, adopted in 2004, imposed a FAR cap of 0.40 only on duplex uses within the Residential District. See Ordinance No. 040826-58 (Part 7, Section 1, at p, 25). In 2011, Council amended the NUNA-NCCD to specifically apply a 0.40 FAR cap to two-unit residential uses. See Ordinance No. 20110804-040 (Part 3, at p. 2). 2 ITEM07/2-STAFF REPORTCase No. C15-2026-0005 BOA Appeal re: 205 East 34th Street Staff Report space from the total gross floor area used in calculating the original project’s FAR. 2 However, while the issue was debated at the hearing, the Board did not vote to accept Appellant’s argument that three-unit uses are subject to the NUNA-NCCD’s 0.40 FAR limit for two-unit uses or, alternatively, the 0.50 FAR limit applicable to MF-zoned lots. On the contrary, in discussing gross floor area, the Board’s decision cites to the HOME ordinance as codified in the Land Development Code: “The approved plans should meet the criteria for FAR requirements under the gross floor area definition of attic in 25-2-773 (E)(1)(b). The definition of floor in 25-2-773 (E)(1)(b) is not limited to whether the floor is load-bearing or not.” It would be inconsistent with the Board’s prior decision to find that three-unit uses within the NUNA-NCCD are subject to any FAR requirement other than the 0.65 limit established in City Code Section 25-2-773 (Duplex, Two-Unit, and Three-Unit Residential Uses). 2. International Residential Code (IRC) Issues Appellant argues that the approved plans fail to comply with IRC requirements related to occupancy limits, visitability, and stair tread depth. Because the IRC is not a zoning regulation, these issues are outside the Board’s scope of review under City Code. 3 Accordingly, we recommend that the Board refrain from addressing IRC issues and seek advice of counsel as needed. That said, ADS will briefly address the merits of Appellant’s arguments below: • Bedroom count & occupancy classification Appellant notes that the technical code reviewer initially determined that the bedroom count for Building 2 exceeded the threshold allowed for review under the IRC. Accordingly, the first round of comments required submittal of a commercial application for an “R-3” occupancy under the International Building Code (IBC) for the project to proceed. In response to the initial comment, however, the applicant submitted revised plans that modified the interior space and reduced the number of designated bedrooms in accordance with the applicable cutoff for IRC review. Staff determined that the remaining rooms are consistent with uses shown on the plans (e.g., pantry, office/study), even if they have windows or other characteristics that are also typical of bedrooms. The purpose of plan review under the IRC is to ensure compliance with the adopted code— not to make assumptions about future violations or prevent the possibility of interior 2 See “Decision Sheet,” at p. 3. 3 City Code Sections 2-1-111 (Board of Adjustment) & 25-2-475 (Appeals) limit the Board’s authority to zoning regulations. 3 ITEM07/3-STAFF REPORTCase No. C15-2026-0005 BOA Appeal re: 205 East 34th Street Staff Report modifications that would trigger IBC review. Should the proposed plans be modified in the future to create additional bedrooms without obtaining required permits, the property would be in violation of code and subject to enforcement. • Exterior visitable route and visitable dwelling entrance Appellant argues that, while the plans depict exterior visitable routes, they do not “reliably demonstrate compliant route origins, no-step entrances, or compliance with applicable slope and ramp requirements.” In reviewing Appellant’s concerns, however, staff determined that the approved plans fully comply with the City’s Visitability Ordinance 4 for the following reasons:  Per the City’s standard “Residential Technical Checklist,” if plans are sealed by an architect, staff only reviews for compliance with visitability requirements in determining whether the application is complete. 5 Nonetheless, the approved plans include detailed “Visitability Path Notes” indicating the location of code- compliant visitable paths and the origination point for each path.  IRC § R322.9 allows an exterior visitable route to originate from a "public street", and the City has historically treated an alley as sufficient to satisfy this requirement since it provides public access similar in nature to a sidewalk.  Potential issues arising from the location electrical and/or "guy wires" are addressed during field inspection, not as part of plan review.  Curb cuts are not required for visitable paths. • Stair winder tread safety requirements Appellant argues that two stairways shown on the approved plans lack the six-inch depth required by the IRC for winder treads. As with visitability requirements, if plans are sealed by an architect, staff reviews requirements for stairways only in determining whether an application is complete. Should a stairway fail to comply with the minimum tread depth required by the IRC, the issue will be addressed during field inspection. 3. International Fire Code (IFC) Issues Appellant argues that the approved plans fail to adequately demonstrate that Building 2 is within 150 feet of an access road with a minimum unobstructed width of 20 feet, as 4 The City’s visitability requirements are adopted as local amendments to the IRC and are codified in Section R322 (Accessibility and Visitability) in City Code § 25-12-243 (Local Amendments to the International Residential Code). 5 See page 2 of the checklist, available at: https://www.austintexas.gov/sites/default/files/files/Development_Services/RES_ResidentialTechnicalRevie wChecklist.pdf 4 ITEM07/4-STAFF REPORTCase No. C15-2026-0005 BOA Appeal re: 205 East 34th Street Staff Report required by the IFC. As with Appellant’s IRC issues, this portion of the appeal is not related to zoning regulations and is therefore outside the scope of the Board’s review. That said, in reviewing the approved plans, staff in the Austin Fire Department required a fire sprinkler to mitigate the excessive distance between Building 2’s exterior walls and an approved access road. Per the 2024 IRC, the sprinkler satisfies an exception from 150-foot distance requirement under IFC § 503 1.1. 4. Completeness Check Appellant argues that the application fails to comply with the “completeness” requirement in Section 25-1-82 (Non-Subdivision Application Requirements and Expiration) of the Land Development Code. As with the Appellant’s technical code claims, the completeness- check requirement is not a zoning regulation and is thus outside the Board’s scope of review. Additionally, since completeness check occurs before applications are accepted for formal review, the decision to accept this application as complete is outside the 20-day appeal period. That said, ADS disagrees that the application failed to include any information required to determine whether proposed construction meets applicable regulations. Staff reviewed the application in conformity with standard procedures, and any non-compliant or missing items were updated during plan review. Procedural Requirements for Appeal This appeal is properly before the Board because it was filed within the 20-day appeal period, and the named Appellant, Peter Journeay-Kaler, owns property within 200 feet of the subject property. In acting on the appeal, the Board may affirm, reverse, or modify staff’s decision to approve the proposed plans, in whole or in part, as provided by LDC Sec. 25-1-192 (Power to Act on Appeal). Per LDC Sec. 25-1-190 (Appellate Burden), the appellant must establish that the approved plans are contrary to applicable regulations. 5 ITEM07/5-STAFF REPORT