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Environmental Board denies variance, orders fill removed from lot

Monday, October 28, 2013 by Elizabeth Pagano

Though it has been in place for years, the Environmental Board definitively shut down a variance request that would have allowed a huge amount of fill to remain in northeast Austin. Instead, the board recommended that that fill be removed, despite protests from the owner.


The board voted 5-1 to deny the variance, with Board Member James Schissler voting in dissent. Board Member Mary Ann Neely was absent.


After hearing from both sides, Chair Mary Gay Maxwell said that the situation was “kind of a mess,” and expressed concern over how extensive the requested variance was. It was an assertion that was backed up by the city’s Environmental Officer Chuck Lesniak.


“In my opinion this is a particularly egregious problem. They were red-tagged in 2009 and it appears that they continued to place fill there. The city can’t let people do this kind of very massive work and provide a variance – we do occasionally permit things after the fact, but they are saying they can’t comply with code and want you to grant them a variance,” said Lesniak. “I think that’s unreasonable.”


Lesniak explained that, even if the owner had asked for a variance in advance, they wouldn’t have recommended it.


The property at 15101 Debba Drive, which is northeast of Steiner Ranch, was red-tagged by the city in 2009 for development without a permit.


Though the project proposes to reduce the current impervious cover to a compliant 20 percent, they were asking to retain the unpermitted fill on the site. That fill was up to 13.5 feet in some places, with a significant portion located in an area that is required to be kept in a natural state by watershed regulations.


Staff found that even though the applicant will be required to restore the area that has been impacted by the fill, there has already been a negative environmental impact to the site’s water quality.


Agent Phil Moncada, who was representing owner Marc Pate, explained that the unpermitted fill was a result of crossed wires between the county and the city. Though they did receive a permit from the county, they did not get anything from the city.


“There’s still a disconnect between the two entities regarding permitting. It’s unreasonable and unfair to anticipate that a citizen that is starting to do a development (who) moves forward and secures a permit would believe that he needed another permit,” said Moncada. “For six years no one came out and told him that he needed another permit from the city.”


Schissler expressed sympathy for the applicant, saying he wasn’t in favor of penalizing him when he wasn’t told about the need for an additional permit by the county.


“I’ve heard over and over that people will say that they got something from the county and didn’t know they needed something from the city. So it’s plausible in this case,” said Planning and Development Review’s Liz Johnston. “From what I’ve heard, the county now has signs everywhere saying that anything from them doesn’t meet city requirements.”


Moncada sad that the removing the fill, which has been in place for more than five years, would cause more environmental issues than allowing it to remain and be re-seeded.


Lesniak disagreed, though he acknowledged the removal would have some impact and require that construction site environmental controls be used.


The applicant also asserted that the fill occurred when the property was a single-family use, but, based on aerial photographs, staff disagreed. Moncada did concede that the property was now operating as a construction business, which is a commercial use, and he explained that there was a site plan currently in process at the city.


The Zoning and Platting Commission will now weigh in on the variance. If the commission does not approve the request, there is no appeal, and the owner will need to get a compliant site plan approved by the city.

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