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Commission grants variance to business with excessive impervious cover

Tuesday, October 25, 2011 by Elizabeth Pagano

After extended negotiations, and two votes, the Zoning and Platting Commission came to a compromise, and approved amended variances for a property that currently has over two and one-half times the amount of impervious cover allowed.


The site is currently 52.9 percent impervious cover, much higher than the 20 percent allowed by code. Agents for the applicant argued that removing much of the cover would be an economic hardship both in cost of removal and in potentially crippling the business. They explained that the shop required large paved areas to drive and park motorcycles safely.


The current owner of Texas Custom Choppers, at 15602¼ Storm Drive, was unaware that their property was out of code at the time of purchase. The property is in the ETJ, near Lakeway, and adjacent to property that is grandfathered by the city and allowed up to 65 percent impervious cover.


“This is case is about a small businessman trying to stay in business,” said Dowe Gullatt of Coats Rose Yale Ryman & Lee. “As you’ve heard, my client was the innocent purchaser of this property.”


Additionally, Gullatt told the commission that to get the property down to 20 percent impervious cover by acquiring additional land could cost up to $200,000, something his client could not afford.


This line of argument, and concerns from the board that denying the variance would impose too great of a financial commitment did not sit well with Chair Betty Baker.


“I don’t like for (owners) to say, ‘If you don’t do this, we can’t make it financially,’ because we can’t zone for finances. We would all go to prison at some point. We can’t help you out financially. We can help you out logically, or with land use issues, but it’s not our responsibility to help your finances work because you bought a property. That’s your responsibility,” said Baker.


The property owner decided to file a site plan and seek variances that would allow him to be compliant after the property was red-tagged. Though the owners won a court case, where the city was unable to prove that the current owner created the impervious cover, the property remained non-compliant.


Originally, the applicant sought variances for 53 percent impervious cover and an elimination of the requirement that 40 percent of the site be returned to its natural state to serve as a buffer.


They later modified their offer to bring impervious cover down to 49.7 percent and offered to build a water-quality pond on the site, something not required in the area. Gullatt argued that this was more than fair.


“There is no negative impact on water quality. In fact, in our case we contend that there is enhanced water quality because we are sizing those ponds as if there were 53 percent impervious cover, and we’re actually going to 49 percent,” said Gullatt.


The first motion by the Zoning and Platting Commission was to reduce the impervious cover to 45 percent, which Gullatt called “the lowest feasible number” that they could do, failed on a vote of 3-3. Commissioners Patricia Seeger, Sandra Baldridge and Gabriel Rojas voted against.


The commission then worked to construct a motion that could gain enough support to pass, as it was the last option, outside of court, for the red-tagged property.


“The property can’t do business without this variance, so it’s not just business as usual, it’s no business,” said Commissioner Gregory Bourgeois.


Baldridge expressed concern that granting the variance would allow the property to have 45 percent impervious cover for the rest of its existence. After consultation with the legal department, the commission added a note that “future improvements be subject to current regulations.”


The commission found the amended motion more acceptable, voting 5-1 for approval with only Seeger voting against.

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