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Developer turns variance process upside-down, asks Environmental Commission for ‘feedback’

Friday, October 18, 2019 by Jessi Devenyns

In an unusual request, development lawyer Richard Suttle with Armbrust & Brown appeared before the Environmental Commission on Oct. 16 to ask not for a site plan variance, but for feedback on a possible upcoming one.

“I’m anticipating needing to come back,” Suttle told the commissioners. He was hoping they would provide him with questions ahead of time about what they will be looking for when he brings forward a variance to increase the amount of cut at 8517½ South Congress Ave. from 4 feet to 13 feet.

There is currently no site plan filed. City staff from the Watershed Protection Department emphatically recommended against the variance as there was no information other than the location of the site, the confirmation of four heritage trees being moved, and an explanation that it needs to be leveled in order to construct a parking lot that is compliant for both ADA and emergency vehicles.

The site is part of a larger development where a residential road is going to be put to open up traffic flow, which limits where the developers can place the parking lots.

With no more information available, Commissioner Pam Thompson expressed her dissatisfaction at Suttle’s circumventing the process and taking up time for the sake of a hypothetical discussion. “We don’t have enough information … and I don’t think it’s our job really to give you input,” she said.

“I am kind of annoyed because staff could tell you what you need to know if you told them what they need to know,” she added.

Not all commissioners agreed with her reaction. Commissioner Wendy Gordon expressed her thanks to Suttle for coming before the commission and asking for feedback.

Commissioner Katie Coyne said, “I’m not insulted by wanting feedback. I prefer that than the opposite.” However, she explained, “It’s difficult to comment on things when we don’t know what you’re thinking.”

As an explanation for shirking the process and approaching the Environmental Commission with virtually no information, Suttle said that developers are always in a hurry. “We’re just trying to get this moving this year,” he said.

He clarified that he could have followed the standard process and filed a site plan with a variance request, but he would have expected the Environmental Commission to send the case to the Planning Commission without its recommendation. He said he would have had more information at that point and been better equipped to make his variance case before the land use commission. But, he said, “That’s not good manners.”

The commission attempted to comply with his request, offering suggestions to bring back a tree survey with the variance and to work with engineers to preserve the natural topography as much as possible.

There are already permits to remove four heritage trees, which will leave gaping holes in the landscape. Suttle noted that he was hopeful he could have a site plan with approved cut variances by the time the trees are excavated in order to avoid having to fill in the holes just to dig them out again if a 13-foot cut variance is approved down the line.

Commissioner Andrew Creel suggested he look into leveling the lot by adding fill onto the front commensurate with the cut in the back. “With some good engineering you might be able to sneak it into an administrative variance,” he said. An administrative variance can be granted for a cut of up to 8 feet.

In the end, the commission voted unanimously to postpone the case indefinitely and wait for more information and an official site plan. Commissioners Mary Ann Neely and Linda Guerrero were absent.

Photo of the proposed site courtesy of Google Maps.

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