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Environmental Board rejects variance request despite threat of lawsuit

Monday, February 24, 2014 by Elizabeth Pagano

Go ahead, go to court.


That was the message from the Environmental Board last Wednesday night, after its members refused to be spooked by the threat of a vested rights lawsuit over a southwest Austin property.


The Vineyard Business Center, 2009 North FM 620, was seeking a variance that would allow construction within the 40 percent downstream buffer and 49.6 percent impervious cover. The variances would allow property owner Vince Wood to build additional office buildings, parking and driveways on a project that was started in 1997.


The Environmental Board voted 5-0 to oppose both variances, with Board Members Jennifer Walker and James Schissler absent.


City Planner Mike McDougal explained that in 1998, environmental variances on the land were granted on the condition that impervious cover be limited to 18.7 percent. A staff report shows that there were no project phases indicated at that time. In 2003, a new site plan was submitted and with grandfathering applied, impervious cover was increased to 27.4 percent.


McDougal explained that the current site plan is considered a new project, and subject to current environmental regulations.


Though the city believes that grandfathering was applied to the project in error in 2003, the developers disagree.


Attorney Terry Irion said that when the project was first brought to the city, HB1704 grandfathering was not in place. It is now, and Irion argued that the project should be grandfathered accordingly, due to a 1970s plat on the land. In the 1970s there were no environmental regulations on the land.


“We’re here asking for a variance. We aren’t asking you to decide our vested property rights. We’re absolutely convinced we’ve got them. It’s a long process to assert those rights through the courts. I’ve done it a number of times. I’ve been very successful at it. But it takes a long time, and it’s expensive,” said Irion.


As part of their argument in favor of the variances, the Vineyard Business Center pointed to a variance allowing increased impervious cover for their next-door neighbor, Texas Custom Choppers in 2011. (See Austin Monitor, Oct. 25, 2011)


That strategy backfired.


“I think the discussion of Texas Custom Choppers has actually been, to me, a real indication of why it’s dangerous to grant these variances,” said Board Member Robert Deegan. “Something that was an earnest attempt at the time to make the best of a bad situation is now being presented as justification of a different kind of variance for new development.”


Chair Mary Gay Maxwell disagreed with the comparison of the two cases entirely, calling them “apples to oranges.”


Deegan went on to say that the property may very well have grandfathering rights, but if those were won in court, they would not create the same kind of precedent as a variance from the Environmental Board.


Another argument by the developer that the water quality protections they were offering actually exceeded standards set by the city also fell flat. Board Member Marisa Perales said that might possibly be true, but it was not the role of the board to rewrite code.


The board encouraged the developer to move forward with the water quality controls if the project was determined to meet grandfathering requirements.


Property owner Wood expressed frustration with the process, saying the Texas Custom Choppers case was “exactly the same” as what he was proposing.


“The city has fought me every step of the way on this project,” said Wood.

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