Planning Commission recommends deviations in the rehabilitation of flood areas

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Thursday, July 21, 2022 by Jonathan Lee

Despite lingering concerns, on July 12 the planning commission recommended an amendment to the flooding regulations that would allow existing businesses within the flooded areas to rebuild without special City Council approval.

The rule change would give city officials the power to authorize the refurbishment of existing commercial buildings in the floodplain if they are rebuilt to certain standards. New buildings must be no larger than the original and, among other things, must be at least 2 feet above the 100-year flood plain.

The idea is to give property owners flexibility and hopefully create structures that are less prone to flooding. Although building on the floodplain is not permitted today, many older businesses and homes are on the floodplain in the past due to less flood regulation.

Jameson Courtney of the Watershed Protection Department explained the rule using the hypothetical example of the Shoal Creek saloon being in floodplain. “If they were to experience a fire and this building was significantly damaged and required replacement, under current law there would not be a single improvement suggestion that the owner could make that the employees could approve,” Courtney said.

Her only option, Courtney continued, would be to ask the council for permission — “a process lasting several months to get the agenda to put the money into plans and proposals with no certainty that it will ultimately be approved.”

Because the exemption is so specific, only a small number of commercial properties could actually benefit from it. “We went through this number and I think we came up with a little under 200[real estate],” Courtney said. He added that only a handful of properties would likely apply for the waiver each year.

Courtney addressed the concerns of the public and commissioners, stressing that the rule exceeds all state and federal flood regulation standards and does not allow the properties to build anything other than what is already on the site.

Despite Courtney’s assurances, Commissioner Jennifer Mushtaler was concerned about “the potential for unintended consequences of the lure of development and business in these areas where they may not belong”.

She also worried about oversight, as one (unelected) person – the director of the Watershed Protection Department – has the final say. “I’d rather have these come before the council and go through a process,” Mushtaler said.

Commissioner Awais Azhar suggested that staff report back in a year with data on how the exception is being used. “I think just having that information in the future will help ease some of the concerns people have,” he said.

Commissioner Claire Hempel, while supportive, stressed that ideally nothing would be in the Aue. “We’re just lumping the flooding issues further down the river…rather than removing those structures and letting the flooding do what it’s going to do.”

The Commission voted 8-2 against Mushtaler and Commissioner Grayson Cox to recommend that the Council approve the amendment. Two weeks earlier the Zoning and Plating Commission postponed their recommendation due to open concerns.

The small change follows a comprehensive update of the floodplain ordinance in 2019 at the suggestion of Atlas 14, a National Oceanic and Atmospheric Administration report predicting worsening Austin flooding.

A residential redevelopment exemption was part of this 2019 update. At the same time, the council asked employees to create a commercial exemption. This was prompted in part by advocacy from the Real Estate Council of Austin.

The code change is scheduled to be voted on by the council on September 1st.

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