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Previously denied fence variance back before Board of Adjustment

Friday, December 20, 2013 by Elizabeth Pagano

A contentious request for a variance on an East Cesar Chavez fence is back before the Board of Adjustment, even though the board had denied the same variance a year ago.


Agent Phil Moncada last represented Michael Kleinman a year ago in his pursuit of a variance for a 12-foot fence at 3107 East Cesar Chavez Road. Kleinman owns three adjoining lots along Cesar Chavez, including the east side Planet K location. Planet K is a chain of “head shops” with locations in Austin, San Marcos and San Antonio.


That request was denied by the board in 2011, and led to an altercation with neighbors in the parking garage after the hearing. (See In Fact Daily, July 13, 2011)


This time around, the meeting was more peaceful, with board members voting unanimously to postpone the variance request to their January meeting.


Moncada explained that, since the variance denial, they had hired a surveyor who showed the fence had an average height of five feet, given the topography and location of the road.


“I actually drove by the site twice today, and the way that he described it is actually pretty accurate,” said Board Member Michael Von Ohlen, who noted that, because the street was above the “gully” at the edge of the property, the average height from street level would be much lower than 12 feet.


Chair Jeff Jack said that, averaging out the height of the fence and allowing for six feet above the grade of the pavement “still wouldn’t be anywhere close to 12 feet tall.”


“I mean, 12 feet tall is a huge fence,” said Jack. “300 linear feet at that location sets an incredible precedent for all the other properties on the south side of Cesar Chavez. We can vote to postpone, but I’m not inclined.”


Moncada told the board that he had also met with PODER about the variance, though he said it was a “little disappointing” that he had not yet heard back from the group about their support.


Board Member Bryan King said that the board had received letters from the River Bluff Neighborhood Association and the Govalle/Johnston Terrace Neighborhood Contact Team who opposed the variance, and had gotten nothing saying they had changed their mind since then.


“I hate to just be brutally honest, but I can’t just lie up here,” said Moncada. “They were 15 minutes late to the meeting… they didn’t follow the agenda, and they were confused about what I was there for initially. The first time I met with them, they thought I was there for a zoning change.”


Moncada said that his client was accused of having built the fence already – a charge that he says is not true, though a tall framework has remained in place for the past year. Moncada said that he didn’t think he could work out the disagreement with the neighborhood if given extra time.


“Basically, they just believe that the fence, to them, is going to be an eyesore,” said Moncada. “I tried to explain to them that we are looking at doing an art mural there that would represent Manifest Destiny.”


He said that a compromised height of 10 feet was never discussed, and the neighborhood had “dug their heels in” on a six-foot fence.


King said that he was troubled that the framework was still up though the variance was denied a year ago.


“It’s not solid, so technically it’s not in violation,” said Moncada. “It’s open, so it could be considered ornamental.”


Moncada told the board that he didn’t believe a precedent would be set, given the lot was one of the few in the area with such extensive frontage on the road (more than 300 feet). He said that the noise and light pollution from the Valero station across the street made the fence a necessity.


“Just so you know where I’m at, I’m inclined to find in your favor, but I need help to get there,” said Board Member Fred McGhee.


“I’m having a little trouble with this – we denied it 6-1 before,” said King. “And to let you know, I’m inclined not to support the variance.”


Though he worried that it might “confuse the issue,” Moncada also agreed to provide the board with an approved site plan that cleared up earlier problems with code compliance.

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