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Commissions reject wastewater variance changes

Friday, April 9, 2004 by

ZAP, EB say creek protection requires public process

Two city commissions have rejected plans to change the way the city handles variances for locating wastewater infrastructure in the critical water quality zone (CWQZ) within the 45,000-acre area that encompasses the Harris Branch and Gilleland Creek watersheds as well as portions of the Wilbarger and Decker Creek watersheds. After a briefing on the matter in February, the Council directed the Watershed Protection and Development Review Department to coordinate with the Water and Wastewater Utility to work on code changes in the region known as the Weston Study Area. According to Water and Wastewater Director Chris Lippe, “These watersheds are where Austin’s next growth is moving.”

That growth is being hampered, however, by a lack of wastewater infrastructure. The Weston study recommended that the city consider placement of wastewater lines within the critical water quality zone in the Weston area. As part of the study, Weston Engineering projected cost savings of 8-10 percent, “if lines could be constructed in the critical water quality zone,” Lippe said. One of the big factors in building within that zone is erosion and the very large flood plains in the area.

Current city regulations require a developer, or the city itself, to go through the process of getting an environmental variance, which Lippe noted, “requires a large engineering investment with an uncertain result.” That, and the massive amount of work to be done in the years ahead, led staff to advise the City Council to seek changes to the code.

Environmental Officer Pat Murphy presented the facts to the Zoning and Platting Commission this week, but they decided to oppose the changes after the chair of the Environmental Board and Northeast Action Group activist Trek English admonished them against supporting such a measure.

Murphy explained that the Weston study recommended a new Northeast Regional Wastewater Treatment Plan and Collection system and projected the costs if lines were built outside the CWQZ or allowed within the zone. He presented three variance scenarios:

1. Wastewater line proposed within disturbed areas outside of the predicted erosion hazard zone;

2. Wastewater line proposed within previously disturbed transitional areas outside of predicted erosion hazard zone; and

3. Wastewater line proposed within a riparian woodland area and/or within the predicted erosion hazard zone.

In the first scenario, where there seems to be the least chance for additional erosion, the department is proposing an administrative process that would be subject to staff conditions but would not have a public notice or hearing process. In the second scenario, Murphy said, a streamlined process would make the variance subject to board and commission imposed conditions. If the city or a developer were proposing to place a wastewater line within a riparian area or a predicted erosion hazard zone, the current variance process would be followed.

Murphy also outlined mitigation measures that would be required to protect creeks from additional erosion. He concluded that the proposal would result in reduced development permitting time and reduced costs in both construction and maintenance. He said the new process would also promote restoration of previously disturbed riparian areas and provide opportunities for future public access to creek corridors.

Lee Leffingwell, chair of the Environmental Board and a possible City Council candidate in 2005, said the mitigation measures being proposed could be implemented under the existing variance process. But the public procedure for considering variances in the CWQZ is “one of the most environmentally important parts of the code. This decision should be made publicly . . . This is sure to be controversial.” Leffingwell made a point of praising Murphy and members of the watershed protection staff for their diligence and dedication. However, he said, “This is not about people. It’s about the process. It should not depend on the integrity of the people.” He presented the Environmental Board motion to the ZAP, noting that they had disapproved the changes on a vote of 6-1.”

The Environmental Board motion states that the city has a longstanding policy against locating new sewer lines in creeks and CWQZs for good reason. Deviations from the policy should be scrutinized in a public forum to make sure that creeks are protected, the motion says, so the process should continue to be a public one.

After hearing from Murphy and the public, Commissioner Joseph Martinez moved to disapprove the changes and Commissioner Clarke Hammond seconded the motion. The vote was 7-1, with Commissioner Jay Gohil voting no. .

BOA sides with staff in retaining wall dispute

Wall towers over neighbor's property

Two of the city’s high profile land-use attorneys squared off this week over the issue of a retaining wall on a waterfront property in West Austin.

Attorneys Richard Suttle of Armbrust Brown & Davis and Michael Whellan of Graves Dougherty Hearon & Moody rarely face each other on opposite ends of a Board of Adjustment case. At a special called meeting on Wednesday, however, Suttle and Whellan argued the appeal of a decision made by building official Janet Gallagher to allow the construction of a retaining wall at 1906 Scenic Drive.

Suttle represented David Baizer. Baizer, who lives behind the two lots on Scenic Drive, opposed Gallagher’s decision. The wall sits on the property line between Baizer’s property and the property of Pedro and Leticia Landa. Suttle argued that the wall actually was one wall of a structure. That structure—one wall of a six-car garage—encroached on the required 5-foot yard setback.

This was not a structure that was intended simply to hold back dirt, Suttle said. This was a 15-foot high wall with an attached structure, with what appeared to be plumbing fixtures, he said. The headlights of any car would shine into the second floor of the Baizer’s house.

If it was a retaining wall—and he wouldn’t stipulate that it was—then it was just too tall, Suttle said. The wall literally towered over the Baizer property.

The West Austin Neighborhood Group’s executive committee voted to support Baizer. Neighbor Blake Tollett told the BOA that the wall “sure looks like an attempt to circumvent the process.” WANG presented a letter in support of Baizer.

On the other side, attorneys Alan Haywood and Whellan argued that the wall was in fact a retaining wall, intended to hold back silt and provide space for a driveway. A drawing of the Landa residence on Scenic Drive showed a modern multi-story structure hugging the hill, with the retaining wall serving as one wall of an underground garage.

Gallagher presented brief testimony that she was satisfied the applicant had met the letter of the code. The applicant brought a model of the structure for the city to review. Commissioner Frank Fuentes asked to see supporting documentation.

Suttle told the board it was difficult for him to believe the code intended to have a nine-foot wall towering over the 50-foot wide property, and that the parking garage was a structure under the building code.

Whellan, on the other hand, argued that he could point to numerous examples of retaining walls used on homes around town. He provided a list and pictures of some of them to the board. Suttle countered that just because the walls existed did not make them legal, since a determination of legality was often based on a neighbor making a complaint.

The board split on that logic. Fuentes viewed the structure as a parking garage encroaching on the setback. Chair Herman Thun viewed the structure as a retaining wall, an extension of the home. Fuentes made a motion to support Suttle’s appeal and Betty Edgemond seconded it. But Commissioners Thun, Leanne Heldenfels and Barbara Aybar supported Gallagher’s decision. Suttle, who brought a court reporter to the hearing, said the decision had yet to be made whether to appeal the BOA’s decision to District Court.

Early voting winds down . . . Today is the final day for casting a ballot early for next Tuesday’s primary runoff. Republicans in the 10th Congressional District are choosing a new member of Congress. No Democrat has filed for the seat. As of last night, 4,221 Republicans had cast ballots in that race and in the contest to be the Republican nominee for Travis County Sheriff. Democrats in Precinct 4 are choosing between Maria Canchola and Leticia Lugo for Constable in that precinct. Only 708 Democrats had voted as of last night . . . Travis County wins grant for indigent defense. . . The Texas Task Force on Indigent Defense has announced that Travis County will receive a grant of $152,472 to fund technology improvements that promise to give court-appointed attorneys easy access to information on their clients in criminal cases. Kiosks will be installed in the courthouse lobby and the information will also be available on the Internet, according to information from the county. Travis County Judge Sam Biscoe and Judges Wil Flowers and Orlinda Naranjo will accept the check in a ceremony on April 15 . . . Artist for South Congress project selected . . . The City of Austin Art in Public Places Program has chosen Austin artist James Talbo t to develop public art within the city’s Congress Avenue streetscape improvement project corridor . . . Traffic signal open house . . . The city’s Transportation, Planning and Sustainability Department wants to hear from the public on the subject of traffic signals. The public is invited to a meeting on the matter next Thursday from 3 to 8pm in the 3rd Floor Conference Room of One Texas Center. A form is also available online the city’s web site ( http://www.ci.austin.tx.us)

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