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Major battle brewing over plans for recycling center in northeast Austin

Wednesday, May 29, 2013 by Elizabeth Pagano

The Zoning and Platting Commission got a sneak peek at a fight brewing in far the northeast outskirts of town last week.


Republic Services of North America (previously known as BFI Waste Systems) plans to build a recycling center at 10001 East US 290, on 161.4 acres currently under interim zoning of Rural Residential (RR). Though early in the process, the plan is already causing trouble, and an administrative site plan extension was appealed to the Zoning and Platting Commission.


John Joseph of Coates Rose appealed the administrative 180-day site plan extension request on behalf of his client, Austin HB Residential Properties, Ltd. The company owns several hundred acres nearby. Joseph argued that the plan was premature, and should be resubmitted after the zoning process was complete. The applicant, and staff, disagreed.


Senior Planner Christine Baron-Holmes explained that staff granted the extension as a standard practice. She said the owner was in the process of working on a zoning request, easements, and a unified development agreement, making the extension request appropriate, in staff’s opinion, and the items currently outstanding typical.


“I think staff got this right,” said Commissioner Rahm McDaniel. “I’m sure that the zoning conversation about this site is going to be really violent. And I’m sure that the appellants are going to have a lot to say about the zoning, but that’s not what we are talking about… I feel like if we grant this appeal all we are doing is unnecessarily intruding into the day to day business of how staff handles complex cases.”


After a vote that would have resulted in no action, the commission voted 5-0 to revisit the item at its next meeting, when they would have a full commission. Commissioners Cynthia Banks and Jason Meeker were absent.


It was clear that the project is facing a great deal of opposition already. It was also clear that the project would provide many hours of work for numerous lawyers before the matter is settled.


One of the more confounding aspects of the case seemed to be the fact that it is a grading plan, not a full site plan, which is currently being reviewed. Joseph argued that a complete site plan should be submitted instead of a grading plan, and said if the current grading plan was complete, it wouldn’t require an extension.


Winstead PC Attorney John Donisi, representing Republic Services, said that filing a full site plan that included intended uses would be premature without first getting a zoning change. Donisi explained that the grading plan had been filed in November, prior to annexation, and that soon after, in February of this year, a zoning case (which is in process) had been initiated.


Donisi explained that, because the site was only annexed by the city in December 2012, there was no way to change the zoning until that process was complete. He told the commission that they had been pursuing a zoning change, diligently, since then. He explained that the extension was necessary, at least in part, due to delays at the city. He questioned Joseph’s attempt to stop the extension, saying the appeal failed to address why the site plan extension violated code.


“He makes it clear he doesn’t like it, and wishes it were different. But that’s not appropriate grounds for appeal,” said Donisi. “They throw up roadblocks while claiming zoning isn’t moving fast enough.”


Joseph reiterated that the appeal wasn’t about zoning; it was about the lack of information on the site plan.


“It is not indicative of what these people are wanting to do. What staff is being asked to do – I think unfairly – is to approve a grading plan for what is going to be a very large recycling facility. I’m not talking about the land use, I’m talking about what they have submitted to you,” said Joseph, who said the grading plan was an attempt to “mark their territory” and prove they were entitled to build a recycling facility.


“I have cats in my house, and they mark their territory all the time,” said McDaniel. “And I can tell you I have very little respect for that.”


When pressed, Joseph explained he was concerned Republic would pursue a Chapter 245 grandfathering. Staff clarified that the company had filed a grandfathering request earlier, but it had already been denied.


Ray Shoal, representing Republic Services, explained they needed to submit the grading plan to remove soil on the land. He said that a separate site plan would be submitted in the future for the recycling center.


Developer Pete Dwyer spoke against the project on behalf of several proposed mixed use communities in the area. He explained that their attorneys, Armbrust and Brown, had filed a brief with the city already. In a December 2012 letter about the project to Planning and Development Review Director Greg Guernsey, attorney David Armbrust explained he is writing on behalf of Heart of Manor LO and Titan HOM LLC, entities that own about 1,600 acres in the area.


Peter Cesaro, representing Kitchell Development Company, which owns the 66 acres adjacent to the Republic site also sought to prevent the site plan extension. He said the project was not in line with what city staff and the comprehensive plan had identified for the area.


“We understood that this would be a mixed use commercial and residential area, not something for a dirty materials transfer facility, or a landfill area,” said Cesaro.

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