Travis County Commissioners Court
Tuesday, August 9, 2011 (Agenda)
Item 14
>> item number 14 is to consider and take appropriate action on a request for a variance to state and county septic regulations, allowing a new commercial facility to connect to an existing system at 10463 sprinkle road in precinct 1.
>> good morning, sheas shuffle and brandon coach from tnr.
we all know the barr mansion burned down late last year.
the owners of the property wish to rebuild it, but add some additional fixtures that are beyond their original septic permit.
specifically they would like to add a commercial kitchen, laundry and dish washing facilities.
they are asking for a variance, although they do have a new septic permit to add these fixtures.
they wish to connect to their existing systems. They have asked for a variance to do so.
tnr is not supportive of this variance.
>> are those all of the relevant facts?
>> we believe so.
>> normally how does that work?
in other words, in the traditional way of doing things, I just wonder how it works, especially if added capacity is brought on board with a property.
the question is is the added capacity of a septic tank accommodating to the added increase of the property itself?
is it a hand and foot situation?
how does it work?
I'm trying to figure out how that actually works, per se, as far as having to increase septic tank based on what?
>> they would be allowed to connect to their existing system if they were rebuilding their original ballroom with the two bathrooms. The problem comes in with the additional kitchen, laundry and dish washing facilities.
that requires additional septic capacity.
>> so --
>> so this added -- we also on the septic deal, I know we have to deal with tceq, so in this particular situation with the added kitchen, dish washing and all these other things require the -- an additional increase in the septic tank itself, is that correct?
>> yes, sir.
>> all right.
and of course, so your recommendation from tnr is to deny the variance because of the fact that the new existing kitchen, dish washing and all these other things, laundry, whatever else is not a part of a new septic system, but connecting to the existing septic system.
and so this is the reason that you are not recommending the variance because they're wanting to connect to the old system with the additional capacity.
>> that is correct.
we are authorized agents of the site for on-site wastewater for septic, and requirements of the state, if you add the kitchen, the laundry, the dish washing facilities, you need to upgrade your system in compliance with current rules.
so we are -- in this case we are just agents of the state.
>> so is this minute sterile on our part?
do we have discretion in our code to have a higher bar or are we pacifically putting into -- basically putting into code what the state requires of us?
>> under 285, the septic rules of the state, you are allowed to grant variances if basically there isn't enough room to put a system on the property or in the case where there's equal or greater protection for health, safety and the environment.
>> does this circumstance meet either of those criteria?
>> no, it does not.
>> and my understanding from the backup is that within about three years, another option will become available as far as tying into a water system.
in that circumstance I completely get from a business standpoint it puts you in a difficult bind.
it means that you have to spend the money for a three-year period when you will have a better alternative through years from now.
is there any ability to tie in early?
>> we do not know that.
ms. Mcafee may be able to answer that.
>> let me ask a couple of questions.
the backup we received said the design flow of the existing system is 1,650 gallons per day.
any disagreement with that?
>> no.
>> and they say further that the actual daily flow averages 697, and a peak of 1,129 gallons per day, which is way below the design flow.
>> that's not uncommon.
there are actual standards for systems, that is the 285, the state rules.
the effect of granting this variance would allow anybody to come in and say, my flow is 60 gallons a day or a thousand gallons a day, rather than meeting the -- rather than meeting the standards, we would then design systems based on individual uses.
the problem is property changes hands.
uses change.
so while the permitted flow, they may be well under the permitted flow, they still do not meet the standards of the state.
>> do we have the authority to require that the design flow not be exceeded?
>> yes.
>> without violating --
>> in our license we state the use, what kind of uses can be used in facility and the maximum flow that is allowed.
>> we don't believe that gives us sufficient protection?
>> no.
I think the effect of this variance would be throwing the rules out the window and our standard then becomes if a system doesn't exceed a flow or does not fail or sewage does not service on the ground.
>> so let me clarify this.
so there is a state requirement we have to follow and we do not have the discretionary authority to deviate from it?
>> I think what stacy is saying is that there are state minimums that we have to follow, and you do have discretion to grant a variance that in this vision is that granting the variance is in essence would allow this person to deviate from the rules.
in the past the Commissioners' court has issued variances where it's impossible to comply, not in instances here where it's cost prohibitive perhaps to the owner.
>> I understand you're requiring we spend $50,000 needlessly when there is no problem because -- and it is not a new facility -- part of it is new.
they rebuilt the facility that burned down, but they added looks like a kitchen and a couple other areas.
but I think the backups indicates that you have more sophisticated or updated equipment so it's generating a lot less gray water than the -- than you did previously.
I guess I'm sort of wondering if the facts are true and they are generating far less flow than the design capacity of the system, why isn't that the perfect case for variance?
I assume that we thought that there would be situations that would require s variance otherwise we wouldn't have put that in our policy.
I guess I'm having a hard time understanding why if we can grant a variance, why isn't this the perfect case for it?
>> I think the issue here is these folks could meet the state requirement.
the cost is really between them and their contractor.
>> okay.
>> we haven't independently verified that 50 is the number or 25,000 or whatever it may be.
they do have other options.
they have a kitchen in their existing house facilities.
they could use tents and use the existing facility until they either came up with the money or tied up into a wastewater line.
>> I guess given these facts, if the cost were $5,000, why wouldn't it be a perfect case for variance?
if the facts are true.
and we're saying we don't know the alleged facts are true, then my question would be how do we confirm or reject them?
do you get what I'm saying?
I'm having a hard time determining that if there are situations that justify a variance, why wouldn't a situation where you are generating a lot less flow than design capacity be the right case for it?
>> let me tell you what the state and county guidelines for granting veasheses are.
maybe that would clear it up.
existing structures built in compliance with the rules in effect at the time they were built, serious violation on-site on the property that with the variance could be solved.
site conditions such as lot size, easements, whatnot, that basically space prohibits a compliance with state rules going in.
lesser of two evils.
conditions without the variance would be worse than conditions with the variance.
of course the property owner agrees to release the county of all liability.
and greater protection, greater equal protection for public health safety and the environment.
those are the state and county criteria for granting variances.
>> so they don't meet the last one.
>> they do not meet this, no.
>> could they be construed to meet the site conditions if they have equipment that is -- that is more efficient than what they had done before?
>> the problem is we have already issued a permit, a septic permit that would allow them to legally put in the kitchen, laundry facilities and dish washing facilities.
>> what does that mean?
>> that means there is room on the property.
they've demonstrated and we've permitted it.
>> it's doable, but it's expensive.
>> it's cost prohibitive.
>> and there is the possibility -- let me ask.
is there the possibility of remain ring with the existing kitchen circumstance that occurred that you utilized in the previous ballroom?
I know that it's far preferable to have the kitchen, laundry and dish washing capability on site, but what was -- what was the arrangement before under the existing permit rather than the new permit?
>> we will cover that in our presentation.
we're not denying that there have been changing functions in the replacement ballroom.
but our whole presentation is centered around the fact that the osff only recognizes the flow from the four building complex.
the law is silent on four building complexes.
I'm not saying it doesn't cover it because it has words like amend, extend and other phrases that come in there.
but the original permit for this structure was based on the flow from three building complexes, always been based on the flow from the total building complex.
we believe it should be now.
it was adequate at the time of the original permit.
it was adequate at the time of the amended permit for the first ballroom.
it was adequate at the time of the permit for the replacement ballroom and it's adequate today.
and I would ask you to carefully consider the definitions in the law.
>> but wouldn't you agree that the rebuilding of the ballroom with the -- from a rawnt tourist ability to have the restaurant on site that actually increases the capacity -- let me finish.
my concern here is I absolutely adore the barr mansion and I want to do everything I can to find a way to make this work because as a business owner I totally get it.
why would you want to spend a considerable chunk of change when you have a tie-in possibility three years from now.
but as a government official I'm in a quandary because if I do this for this person who I personally adore, what position do I have to stand on when -- with a complex of three buildings in a sexually oriented business says we're putting in all low flow toilets.
let him stay under the existing permits even though we're building a new building?
>> I would like to say that our objection and our appeal today is not based -- it makes it sound like it's based on we don't have the money.
it's a big investment.
>> the barr mansion has already spent --
>> can we let you make your presentation?
>>
>> [overlapping speakers]
>> you've heard a lot in the addenda and so forth about the new structure, the expanded structure, these kitchens.
and it makes it sound like all of those are equivalent.
that the baking room with the oven is a full commercial kitchen just like the full commercial kitchen we have already.
so there are a lot of things that I would like to discusses the theme and the application of the statute and a lot of things that you will be concerned with.
and we respect the permitting and reviewing authorities who are bringing you information today.
some of it it was not scene at the time that we asked for the permit.
we were really getting a building permit.
and normally osff's are on their own permit and it's based on the load wherever it's coming.
so we're presenting some facts today that they have not even heard.
>> that would be great.
because to the extent that we can do a variance it's got to be confined to its facts.
>> and we don't discount them at all or we're not criticizing them at all.
we would like to hear -- you would to hear our voice too.
>> let's let you make your presentation.
>> okay.
I would like to go over there and be in a different location if they will permit me.
>> you can.
>> did I understand you to say you're going to present facts today that the staff has not seen yet?
did I understand that your presentation is going to include facts that the staff hasn't even seen yet?
>> we haven't discussed it with them.
there is a file.
they're in permit file.
we haven't -- I'm saying we haven't highlighted -- for example, I don't know that they've walked through the other three buildings of the complex or anything.
I want to make sure I have all that.
>> staff is going to see new facts today, then he would suggest sug to the court that you don't act on this today.
>> if you give us your name I would be happy to give us your apprehension.
and then we will have questions.
I know we will have some.
>> I'm ej deet rich.
I'm the father of melanie mcafee, the owner of barr mansion.
I was touched by the presentation by the wounded warriors.
I'm an ex-captain.
had a mortar platoon in world war ii in the marine corps, so I was moved by the earlier presentations.
but we're going to speak to some of the things that ms. Eckhardt talked about and we have just eight slides and I'll try to get to those quickly.
I do want to present some new facts about this replacement ballroom structure.
we've heard new structure expanded, this or that, but I want to remind you that the original permit was based on the total complex of the buildings.
it was then a three-building complex.
now it's a four-building complex.
but all of the prior permits have been based on the consolidated flow.
so we want you to think of that today as we go through our presentation.
and the one theme I want you to remember too is that the ossf should be judged on the flow going to the ossf.
look in the statute and see how it defines that plan.
and this waste stream is not larger now than under the original permit.
it has not been degraded.
it's not larger in quantity.
it's still based on the same design criteria that we used originally, and it's more reflective by the number of parties, the events, the number of people.
we don't wash the number of table cloths based on where the washing machine is located.
if we have 1 constituent people or 110 people at an event, we wash 110 table cloths.
we're not washing upstairs to wash the table cloths there and rush to go another station to wash the table cloths there.
so when I say the functions in this building complex have not been changed, remember that theme.
and with that I would -- since I was involved on the original permit,, I was a member of a civil engineering firm and we did the septic tank original permit, so I'm somewhat familiar with it.
so I'll start with the review of the permit history.
I want to go through that quickly.
in 1988 the barr mansion main building with the washing machine, commercial kitchen and restroom buildings were permitted.
this was a three building complex.
and it was licensed to operate with a flow of 2306 galings per day on the original permit.
and we had conservative design drawings back then and our design drawings were 1750 gallons per day.
but what I remember is that we had -- and I check this out in the file.
originally we had 1550 square feet on the drawings with the drain field and it was increased to over 2,000 before we installed it.
so we have a very conservative design on this system.
and it was based on four party event days per week of the year.
that's 57% of the days per year.
the actual records in 2005 reflect that 30% of the days now annually are event days.
so about half of what we originally assumed are event days now.
on August 5th, 1999, the ballroom addition, including two restrooms, were permitted.
and with the ossf declared adequate for the ballroom addition.
this was in 1999.
that put us up to the four building complex that we'll be talking about today.
then the ballroom burned down in June of 2010 so in September of 2010 the replacement ballroom was removed with two added fixtures.
the owner had the pressures of getting a fast track construction started, getting the revenues reestablished, so no study was made at that time of the adequacy of the existing osf system.
but barr mansion is -- we're not critical of the permit staff today.
and but we feel this very strongly that this information presented today will show you that the waste stream is adequate.
it has not been degraded.
the osf system is still buried in the ground.
it has not been amended.
it has not been atterred in any way and it's all adequate.
now, let me discuss this expansion due to fixtures that were placed in the replacement ballroom.
it's not a full scale commercial kitchen.
a baking oven was added in one of the spaces in the replacement ballroom.
this is not a new function to barr mansion.
since the days of the first permit we have pizza baking -- baking, but it was just done in the old kitchen.
it's just been moved to another location.
it's not an added full production commercial kitchen.
small hand washing sink is the only thing in there with that baking oven.
and the degree of food preparation is saism in the four building complex as it has been all along.
there's no change in the nature from the four building complex under the 1999 permit.
there's no more pizza baking in the earlier commercial kitchen.
that function has been removed to the replacement ballroom.
before the consolidation of this, there's been no change in the flow.
another I think thing is we have -- another thing is we have a high efficiency dishwasher that was added to the replacement kitchen because we used to carry the dishes over to another building to what we called the true commercial kitchen that was permitted originally.
we used to hand carry all those dishes over there to wash them.
this new dishwasher we've added in the replacement ballroom, uses 1.2 gallons per cycle in this replacement ballroom -- I mean, in the old kitchen location.
it uses 1.2 gallons per cycle.
the new one we put in the replacement ballroom, which is for planning.
it's not an addition, it's planning the dish washing in the old kitchen, it uses 40% less water.
that's .75 of a gallon per side.
so it uses 40% less water.
now, the fewer pots and pans from the rest of the food preparation will still be washed in the old lesser efficient dishwasher, the pots and pans from, say, the regular food that's not a pizza will still be washed in the old location, but the net is a reduction in flow from the functions of the osff and no change in the way it was permitted.
actually, this addition of the two dish washing locations are adding to is not to increase dish washing, but it's for saving labor of transporting dishes from one place to another.
did I skip a slide?
>> yes.
>> yeah.
now, another thing that needs to be address sheriff's department the washing of -- is the washing of table cloths because we added a washer and dryer in this replacement ballroom.
all the table cloth washing will now be in the replacement ballroom, but this is not a new function for the four building complex.
it sup plants this main function, this function in the main building.
I know -- when I say the main building, that's the old historic mansion.
and they used to have to haul the table cloths up two flights of stairs, crowd your way into a little restroom on the second floor and wash the table cloths.
I can assure you with this new washing room and the replacement ballroom, they will not be carrying them to two places, they will be going to the replacement ballroom.
and once again, we have a higher efficient equipment because we've changed from a top loadtory a front loader on the washer.
so I don't know the extent of this reduction, but it's certainly not an increase.
as under the 1990 permit, the quantity and nature of flow from these functions are dependent solely on the number of persons served and the menus selected and all of this still under the same concept.
now this, chart allows me to talk a little bit about this four building complex that the osff is based on.
you notice on the top, this is under the 1999 permit.
we had the ballroom, the two restrooms. That one just means restrooms. That's a category for restroom.
but we had two restrooms and ballroom.
in the mansion we had some restrooms and we washed table cloths in the old historic mansion.
the commercial kitchen, which was permitted originally and in 1999 we had the pizza oven there and we washed dishes there and we washed some pots and pans there.
and we had the separate restrooms. So all of that was in the 1990 permit.
but now, let's come up to 2011.
the replacement ballroom appears to be added a big quantity of water, but it's just a relocated function.
and you can see etcetera got wash cloths and pizza relocation and wash dishes.
the mansion no longer has table cloths.
the kitchen now has lesser functions because it no longer -- I'm talking about the old commercial kitchen originally permitted.
it only prepares some of the food there, but it has lesser pots and pans.
it has no dishes at all to be washed there.
and the separate restroom building has not been changed at all.
under the 1999 permit for the ballroom, it was based on four buildings.
he with had the old license flow of 1640 gallons per day in 1988.
and we barely used -- you can see some of the flow measurements we took on the replacement ballroom, just this last may and June we took event days and non-event days.
the non-event days we had 200 to 710 gallons per day.
the event days we had 700 to 1100 gallons per day.
and the average was 590.
we're well below, whether you use 1650, which was on the original design drawings, or you use 2362 gallons per day, which my records indicate is what we were licensed for under the old original permit, we are still within the flow of the old law.
I want to say to you that barr mansion ossf has never been complained of.
it's been inspected several times during its permit history and it's always been indicated that it's not having any problems meeting its load.
it was inspected several times on the original permit and inspected during the amended permits.
the permitted flow was based on waste stream from the complex of four buildings.
all based on a very conservative initial design.
such waste stream has not been degraded or increased to exceed permitted design parameters of the existing ossf.
there has been -- and we could sign an a.f.d.
to this.
there's -- an affidavit to this.
there's been no change in the food functions or what we're doing there.
it's always been centered towards the weddings.
how many people are coming, how many table cloths do we have to wash.
that's what it was originally designed for and the complex remains the same today.
the changes made in the location of the food functions have not increased the flow.
so what is our request today?
we request today that is either be grandfathered under the old law or accepted under 2853-f, having met conditions ab and c.
a varns to allow the existing ossf for the four building complex and to eliminate the building permit for a second plant, which we do believe will cost an added 40 to $50,000.
I ask you to note that the barr mansion is pending development for and it might be connected to an underground sewer in two to three years.
and barr mansion's occupancy permit, we request that it be made permanent as soon as possible so as not to untimely block a new mortgage loan to replace the construction loan.
this has really been a struggle for melanie.
she wants her cliens to be safe.
we've spent $150,000 of transferring already a lot of things about the new law.
so I want to be careful here.
and I've read a lot of laws on this in my career as a lawyer and as an engineer.
and I know that sometimes it's tough to interpret.
when you say you're beginning to amend, you're going to extend or you're going to dig, I want you to look, though, at that total statute and its total purpose and its total intent because a lot of those words, those subwords that often say forget it.
you're under the new law and we've cleaned up some things.
we like the new law better than the old law.
I'm not here to say that the old law is better than the new law.
I know the new law is better.
but I'm just saying you should be very careful before you ask a citizen to just discount what he was legitimately discounted for.
in other words, if he had his ossf built before the statute became effective, I want you to consider that strongly.
so this is really the essence of the presentation today and --
>> would you like to add anything?
y'all are here with the applicant, right?
>> yes.
I have an engineer --
>> your name is.
>> (indiscernible).
thank you for let meg have a moment to speak.
I think that fundamentally I look at it from the perspective of like jd said, there's an entire complex of buildings that are interconnected through a variety of plumbing mechanisms to an ossf system.
and from the perspective of trying to figure out whether or not something new should be done, I looked at it from the perspective of nothing has changed but the ballroom has burned down, okay?
then they have rebuilt the ballroom and they have relocated some functions, but presuming that they have shut the functions down elsewhere, it is definitely not an increase in flow or change in quality of effluent or any of that.
basically they're just moving functions from one building to another.
now, fixtures do matter to some extent.
for instance, if you added a swimming pool or add add hot tub or added some sort of a fixture that increased for sure, showers, things like that, that would change the behavior of the individuals going to the place, that could change the flow.
but if you're simply shutting down one sink here and adding it over there, that doesn't change anything in the flow.
and whether or not the 285 rules apply, my perspective is that 285 applies to the on-site sewage facility system, not to the plumbing of the buildings.
that would be a plumbing code issue it seems to me.
so what weir really talking about is does this new ballroom create a change to the ossf system or is it just a change in plumbing.
and it seems to me based on the evidence they've provided to me -- and of course, I haven't gone through the whole -- I haven't done 100% expensive engineering analysis of everything.
I have to take them on their word at a lot of things they've told me and I trust them completelily.
but fundamentally there's no change.
they're just changing -- they don't wash the clothes in this building anymore, they wash them over here.
they don't cook the pizzas over here, they cook them over here.
they're not cooking twice as many pizzas or cooking twice as much laundry.
if that was happening that would be paced on there being twice as many people at a wedding.
and their business projections I don't think indicate that they're about to double their business any time soon.
and even if they were to, that wouldn't necessarily be relevant because you cannot -- never know what the future business of a place is going to be ahead of time.
you design for what you think you're going to need to meet.
you do that and if it changes you upgrade your facility, you expand it or whatever.
so basically they designed something for a certain flow.
many years have passed.
apparently that flow has not changed.
and one of the things I did advise them to do early was take flow measurements because I said the one thing we need to know is what are your flows.
and I understand the county's perspective that existing data -- of this an issue to some extent, but I have a lot of experience at the tceq.
I have personally worked on the chapter 285 regulations.
I worked on permitting and chapter 210, chapter 217, every reg there is about water and wastewater.
I'm pretty intimately familiar with.
and chapter 285, on-site sewage facility rule is directed at the on-site sewage facilities, but it's also -- it kind of is implied that for the most part when the county talks about they have an existing number that they need to be used for design, it's more or less for a new facility that does not have any flow data.
okay?
now, there is a gray area about whether or not you can come back later with a lot of flow data and rerate your system.
they don't like to do that, but I don't think it's prohibited in my opinion.
and fundamentally I say that because as a reviewer, when I was reviewing things at the tceq, our rule was that data was more important than our little numbers in the book.
because real flow data is real flow data.
why would you not base your design on reality?
why would you base it on somebody's general assumptions in a table, table in a rule, if you have flow data?
if you're designing the system and have you no flow data, then you have no way of justifying to the regulated entity what your flow is going to be.
yes, you do have to use their numbers because they're giving you conservative numbers that you design on, that you utilize, and that is supposed to cover the -- it's a conservative case.
years and years of activity go by and you've got 10 years of data, and your flow is very consistent, your business hasn't changed, your operations haven't changed, I don't see why you would be forced to, you know, do anything, to tell you the truth.
it's working, right?
now, so that's the other thing is there hasn't been any violations, the county hasn't given any inspection violations, there hasn't been any code citations that I know of.
so are they altering anything on their system?
I don't think they are.
if you look at the definition of alter, they're not altering, they're definitely not expanding.
they're not repairing.
they're not extending.
all they're doing is rebuilding a ballroom, and they have the plumbing from that ballroom as before.
and coming into the same tank, but from this type over here to a lot less flow, so when this flow plus this flow added together is the same flow.
>> I don't know why you would be forced to spend $50,000.
not only are they asking --
>> you are the applicant?
>> basically I'm here for support.
>> I'll let the report show that, miss porter.
now, court members --
>> could I get your name?
>> (indiscernible).
>> court members, any questions?
Commissioner Huber?
>> yes.
stacy, when exactly was our rule changed?
the latest rule change, the rules --
>> this would be --
>> 2008 basically.
that is part of the increase in cost in the system.
systems for commercial kitchens, restaurants things are not simply done by flow anymore.
youless also have to deal with your high strength wastewater.
you have to treat that in order to get that down to a more domestic type of wastewater before you can dispose of it in the ground.
that's due to overloading of soils.
that's part of the expense of a new system here is they would have to -- the design would have to meet the 2008 rule changes.
the other thing I wasn't quite sure of that I did hear is my understanding is they were not shutting down the commercial kitchen and laundry facilities, dish washing facilities in the original mansion.
we try to be reasonable.
we understand the flow.
it's possible if they kept those fixtures out of the original and they're just moving them to another building in the four complex, but it's not our understanding of what's going on.
we believe they are adding additional fixtures and keeping the original things in the mansion.
>> so did we need them to give us in writing exactly what they plan to do if they haven't done it already?
>> I think they have, but I'm hearing two different things here.
I'm --
>> dish machines and washing machines.
the washing machines have been moved and are no longer in the house.
they're gone.
>> and the plumbing has been capped?
>> yes.
>> but we're not going to close down the existing commercial kitchen.
we still cook the food there.
we've only removed the baking oven and put it in the replacement ballroom.
but the food is still cooked in -- there's one main commercial kitchen.
I would take exception that moving this baking oven over, it puts us in the restaurant class.
we don't have a single sewage disposal unit there.
we're not flushing food down the drain like a lot of these restaurants do.
melanie's fully certified organic place.
she composts all the food scraps.
we don't have the problem that restaurants do.
I appreciate the problem with restaurants and outdated septic systems, but I don't think we fit that category.
>> does that make a difference for us?
>> not from the rules.
>> judge -- judge, if I might.
this speaks to the point I raised earlier.
the applicant and the staff need to be operating on 100% exactly the same facts, and it is obvious that they are not.
>> I will need a week anyway.
Commissioner Huber, let you finish and then Commissioner Davis and Commissioner Eckhardt.
>> if staff doesn't have this clarity that was presented informationally, I would like to be sure that staff reviews this from a flow standpoint.
I just want to say here that I have a problem really about small successful businesses that have been in place, operating well, have a fire, have to rebuild, seek to try to improve the operations within that umbrella, and then it's irrelevant to me whether or not they can afford the 50,000.
let's assume -- let's just assume for discussion purposes they couldn't.
something like that could be a tipping point for a successful small business.
I don't see why we can't look to see if there isn't some way that when we have a business in place and we have new rules and their proposed business plan falls within the broader definition of what those goals of those rules are intended to be, that we shouldn't look for variances for things like this.
because small businesses are the basis of our economy.
and when we drag processes out at the court and when we put -- impose extra costs, when it may be that we need to be a little more flexible within the interpretation of the law are creative.
the question I have is to go to legal.
I hear what staff is saying about there's a new law.
that there is nothing to keep them from selling this property, a new owner coming in and changing it.
is it possible to grant a variance just subject to the current ownership or extended family of this property, and put it up for review to make it comply with the law if it goes through sale?
I'm not offering that as a suggestion or solution other than a consideration because I think we've got a situation here that really bears a lot more scrutiny.
>> I'd like to make one brief comment toward that too.
I can certainly understand staff's position if we change this operation to a table cloth --
>> [one moment, please, for change in captioners]
>> it talks about construction and it says there has to be moving of the dirt.
well, when we change the washer and put to a new location there was no moving of the dirt.
>> the real question, though, what I'm hearing, and this is a good argument, you all, and I want to explore this.
if we're just moving the current water and waste water-generating fixtures from one place to another, that's a good argument.
I'm not sure that -- what I need to hear more about is that.
if that's all we're talking about here is rearranging the existing capacity --
>> we haven't added any functions, we've only added table cloth washing functions.
they're only going to be added one place it blows my mind we will sneak in and use two washing machines at the same time when one of them is two -- I mean, common sense needs to be applied with this law.
we're going to wash the table cloths in one location.
>> I agree with tom.
>> Commissioner Davis and Commissioner Eckhardt do we have a lawyer on hand to get a legal briefing today?
>> next week will be better because we absolutely have to have an agreed set of facts here, and we do not have it.
>> okay.
mr. Davis.
>> thank you, judge.
>> then back to Commissioner Eckhardt.
>> I patiently waited.
>> my fought.
>> that's all right, don't worry about it.
when thoughts hit your mind, you have to let it out.
number one, I would like to thank the attorney for the service.
I was impressed with his recognition of wounded warriors this morning and thank you for your service, also.
but this particular facility is within precinct one, and melanie and I go back as far as being a big supporters of me and I've supported them.
but here, we're looking at a situation where I think we need to be very, very careful as we make a decision.
careful to the point where do we not make the wrong decision, where it opens up pandora's box, meaning that we may have to go back and look at a whole lot of situations that may be considered grandfathered in.
they will wonder, what happened to us as we did what we did, and of course, we had to make adjustments to our septic systems accordingly.
I think that is very critical in the decisions we make.
what will actually the ramifications and the impact on the decisions of the residents and businesses of Travis County that we have some say in.
under five, of course, that is basically -- 285 has basically been hit on several times and referred to in many shapes, form and fashion made comment on.
however, also in the 285, and I like to ask staff this, staff, if there is room with an accommodation suchs that particular business or anything else that allows for added capacity because of expansion, and we, as a agent of teceq grant a variance knowing that we have room to work within 285, yet we grant a variance, what will that do to our relationship with tceq, especially if we have -- well, especially in our permit issuing capability, from the county's perspective, what will that do if our status and relationship knowing that we granted variance?
what will that do?
will that have any impact on the county?
>> two things, Commissioner Davis.
we did check with the state to make sure we were applying 285 consist with other jurisdictions in the way the state applies 285 across the state.
they've indicated that this is not a variance that the state would support.
the answer to your question, specifically, as to what could happen to our authorized agent status, if we granted a variance where 285 could be met, the state audit says about every two years and I guess worse case, they could possibly take the program back from the county.
worse-case scenario.
>> worse-case scenario.
but that is a possibility with something like that.
>> that is in addition to the precedence we set.
>> I want to lay that out because I want to make sure everyone understands the severity of this particular situation here, and make sure that when the facts and everything is presented to staff, as recommended by our county attorney, w have a chance to look at this because we see now what's in the ballot if we do not make the right -- in the balance if we do not make the right decision.
thank you.
>> I would remind the Commissioners, also, just from my opinion of reading the regulations we're not even necessarily in a variance situation.
I believe they fall under the grandfathered clause.
>> I don't know, but I'm just saying that's why the attorney, I think, brought up the new facts.
we've heard a lot of new testimony, things we didn't have any back-up, we heard disclosed stuff today, so that means to me we need to get our heads together and see where we are and if we need another week to deal with this situation, we'll deal with it.
until then, we will be blowing bubble it is.
>> echo with what our engineer said, and what I was going to say on that is that the reason we asked to be grandfathered or accepted under 285 is that we think, clearly, that we were permitted before the effective date of 285, and I think we should be -- when there is a silence or any kind of vagueness in a new law, I do think that officials have the duty to be very careful and avoiding expost facto penalties, and that we're bordering on that here, I think.
all of the facts say we're bordering on that, and we just want fairness and soundness in the application of the law and you can look at it in proverbs some place, it says a leader who sew pressive might lose his -- is oppresssive might lose his sound judgment and we're asking for soundness in the judgment and application of the law.
we want to abide by the law but we want strong common sense and soundness applied to it and we plead for that, and if you hold that against you, we still plead for it.
>> Commissioner Eckhardt.
>> these are things I would ask for in the next week.
I agree, we need to be on the same playing field regards to what the facts are on the ground, as far as what fixtures existed before the structure burned down, what fixtures exist --
>> we would welcome them take their own measurements during events or nonevents --
>> I'm not talking about flow measures, I'm talking about the redistribution of fixtures or addition of fixtures that use water or generate waste water.
>> thank you.
>> my understanding is that we permit for capacity, not for flow, because to permit based on flow data would be a regulatory scheme we simply can't afford.
>> how do you get the capacity, though?
>> the capacity of the actual fixtures.
also, I would like legal to take a look at any mechanism we have to confine a permit to the user or the use.
I don't know that we have that authority.
>> I would like to --
>> let me go through the list.
>> yes, ma'am.
>> is this a list of legal questions?
>> I'm go to have a list myself and I think we ought to e-mail that list to the gentlemen.
>> okay.
>> any member of the court has legal questions, get them to you all by 5:00 tomorrow?
>> I think it's important for them to know what the legal questions are too, though, and also some of these little questions turn on fact questions that we can only get those facts from you all.
>> regarding your comments today, and right now --
>> let me finish this one last thing, though.
also, legal with regard to setting a variance policy if we do set a variance policy based on flow data and usage, so it is across-the-board available to any small business.
I have the utmost trust in melanie and her uses, I know from a personal standpoint what her business practices are, but there is no way in god's green earth I or any of our staff can have that level of familiarity with every single permit request that comes through our office, but I have to have a level playing field for those I haven't met.
>> they still have this regulation, basically, they do allow people to come in with larger plans and rewrite the plans based on flow.
when they do that, their requirement is to have two years of flow data and they require your flow, your design flow to be mean plus two standard deviation, which is equivalent to 98% of the time compliance.
2% of the time noncompliance.
>> we all know what we're trying to guard against here, we all know what our history has been in our dirt and in our creeks, we're doing the creek study right now that has an unacceptedly high level of septage from septic tanks.
>> as county judge and time keeper, I hereby announce we are out of time this item will be back on the court's agenda next Tuesday for further consideration.
>> can I make one last comment on her comments?
>> s no.
unfortunately, we have a whole lot of people here told to come at 10:30.
>> thank you very much.
I didn't mean to be argumentative at all and I thank you for your time today.
>> no problem.
it is hard being the time keeper.
>> yes, sir.
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