Naked City

Many people would love to live in the little yellow house at 509 Elmwood Place. With a swing on the front porch and a prime location just a few steps away from the University of Texas, the building seems a suitable home for a young professional family or a group of students splitting the rent.

But in a matter of months, the house will be completely torn down, and a new fraternity basketball court -- adorned with high fences and bright lights -- will be built in its place. The fraternity, Delta Tau Delta, has so angered its Eastwoods neighbors with its plans for demolition that they have attempted to block the plans from proceeding by appealing to the city government for help.

Alleging a violation of Austin's Land Development Code, neighbors have put together a lengthy petition, offered alternative locations for the basketball court, and researched the legality of the proposed construction from several different angles -- all to no avail. Though the city has often projected a pro-neighborhood attitude, calling for residents to take an active part in determining how their areas will grow and change, the failure of the Eastwoods Neighborhood Association (ENA) to work out a compromise satisfactory to the fraternity and its neighbors proves only one thing: Where there's a will, there's not always a way.

"City Council has not helped [us] with a single issue," says Barbara Epstein, president of the ENA. "I'm not trying to keep development from occurring. I'm trying to see that it's done with care. It's not."

To the fraternity's credit, their construction plans have been fine-tuned over the past two years and have been approved by City Council at every stage. Since 1987, frat members have enjoyed the use of a basketball court right next to their house on Park Place, but a new 12-room dormitory for fraternity seniors is scheduled to be built where the court now stands by 2001, thus leaving the complex sans hoops.

Hoping to relocate the court to the lot on Elmwood directly behind the house, the frat took an option on the property in June of 1997 while the fraternity's building association began studying the feasibility of construction on the site. Convinced that the proximity of the lot made it the best location for a new court, the fraternity purchased the land for $130,000 on January 20, 1999.

"We did not go through with the purchase until we had been assured by city staff that doing so was fully consistent with all relevant [land-] code provisions," says Robert German, president of the fraternity's building committee.

The problem, the neighbors contend, is that between the frat house and the proposed basketball court lies a 12-foot-wide alley, or "driveway reserve," that is shared by all houses that occupy the block. In order to purchase the Elmwood lot for use as a basketball court, the fraternity first had to obtain the title to the driveway reserve, thus making their entire property one contiguous body. According to the fraternity, the new basketball court would constitute a structure "accessory" to the main (or "dominant") fraternity building, creating a relationship between the two sites which is allowed in the Land Development Code and was approved by City Council.

In their January appeal to the city's Board of Adjustment, the ENA argued that joining two lots on opposing sides of a city block into a single property violates the code's requirement that the accessory site be "incidental to" and "customarily associated with" the dominant one, and that the plan was thus invalid. Furthermore, they argued, the plan would convert the driveway reserve, which opens out onto Harris Park Ave. and San Jacinto Blvd., into what is called a "through lot," meaning a piece of property with access to more than one street. Such lots are explicitly prohibited by the development code.

"I'm a pragmatic person. I don't like to complain," says Epstein. "But the city ought to be more cognizant. They seem to be letting people do anything. I've never seen anything this strained."

Some Eastwoods residents also argue that the fraternity's legal claim to the driveway reserve should be declared null and void based on the alley's history as communal, not private, property. Indeed, the ownership seems muddied at best. In 1912, the original owner of the Eastwoods site dedicated all of the area's land to the city with the exception of the neighborhood's driveway reserves. These alleys were later sold to a developer named Sterling Fulmore, who died without bequeathing the property to anyone. Between Fulmore's death in the 1940s and Delta Tau Delta's acquisition of the title in 1998, the alley was presumed to belong to the neighbors. Yet Fulmore's son, who had never paid taxes on the reserves or maintained them, signed a "quitclaim" deed on the property, in effect, bestowing ownership of the driveway reserve to the fraternity.

Though the Board of Adjustment received the ENA's complaints in January, they have yet to accept or reject their application for appeal, thus leaving the case in limbo. The fraternity, having the legal approval of City Council thus far, is moving ahead with their plans to demolish the house on Elmwood and build their new court. They have promised to create a site that is attractive, safe, and in no way damaging to the character of the Eastwoods neighborhood.

The neighbors, for now, have no choice but to watch the house come down. "But how can you have a neighborhood that works if compromise isn't an option?" Epstein asks.