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Planning commission denies variance for wall in flood plain

Wednesday, October 1, 2008 by Kimberly Reeves

Last week, the Planning Commission sorted its way through a complicated case of variances for a property on Williamson Creek that had already made its way through the Environmental Board and the Board of Adjustment.


It could prove difficult for Council to sort out the issue because each commission presented with the case has come to a different conclusion. The variances on the property, located at 328 Heartwood, include one on fill and one on building in the flood plain. The owner had built a fence both too tall and in the flood plain zone.


The original complaint on the property was actually filed back in 2006. The applicant built a retaining wall on a property within the 25-year flood plain zone. The city was not exactly sympathetic to the construction. The construction took place in both the flood zone and critical water quality zone.


“The rationale of asking for forgiveness instead of asking for permission is not appropriate when dealing with development in sensitive areas,” planner Chris Yanez said.  “And while it is at the discretion of this commission to grant approval, city staff urges denial due to the precedent that may be set, along with the potential long-term ramifications approval might have.”


The Planning Commission denied the proposal, fairly convinced by the staff’s arguments that the owner was obligated to follow city code. When commissioners such as Tracy Atkins spoke at the time of the vote, it was to say that ignorance of the rules was no excuse for ignoring the rules, although owner Ruben Rodriguez insisted he had multiple conversations with city inspectors who considered his new construction on his property to be perfectly acceptable.


“It’s every owner’s responsibility to conduct due diligence on where their property is located,” Atkins said. “Their property is located on a creek, so they needed to be aware of what the flood risks are on that property.”


The owner insisted he had bought the property at a time when it did not fall within the 25-year flood plain. The subdivision was platted in 1968.


The final vote at the Planning Commission to deny the variances was unanimous, with the exception of Commissioner Clint Small, who recused himself. At the Environmental Board, however, Rodriguez won a favorable vote on his variances.


According to the minutes, the Environmental Board agreed the owner had made a good faith effort to communicate with the city on his plans and that the impact of the wall would be negligible. Planning Commission, it appears, was not willing to offer a pass on that issue.


Just to complicate matters, Environmental Board Member Phil Moncada recused himself at the hearing because he represented Rodriguez in his case. Moncada insisted the Army Corps of Engineers was going to consider water diversion techniques similar to Rodriguez’s, although that point was pushed aside when city staff insisted no plans had been finalized on Williamson Creek.


The final disposition of the case before the Board of Adjustment was not included in the back-up material for the Heartwood case. BOA would have considered the height of the retaining wall in question, which Moncada noted might not even meet the definition of a “fence” under the city’s ordinance.


Moncada insisted the impact of the fence was “negligible.” Yanez and Chris Carson of Watershed Protection disagreed, saying the more important point was precedent. Should the city allow this fill and wall – no matter how minor – if it was going to open the door for other homes to construct similar structures?


In his comments, Commissioner Chris Ewen agreed, saying it was important to see written proof of any exceptions granted by city staff. The case, Ewen said, would set a precedent for similar construction on other properties in the area.


The ruling can still be appealed to Council.

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