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ZAP denies fill variance for property in city’s northwest ETJ

Friday, January 10, 2014 by Elizabeth Pagano

The Zoning and Platting Commission, following the Environmental Board‘s lead and staff’s counsel, denied a variance Tuesday for a north Austin property that has been in violation of city regulations for years.


The site, at 15101 Debba Drive, is in the far northwest portion of the city‘s extraterritorial jurisdiction. Owner Marc Pate Construction was seeking a variance for a large amount of fill that has been in place for years.


The city requires a variance for fill that exceeds 4 feet. On this property, the fill was up to 13.5 feet in some places.


Agent Phil Moncada explained that at this point, removing the established fill would cause more harm than good, but staff disagreed.


Environmental Officer Chuck Lesniak told the commission that staff would not have supported the request, even if it had been made prior to the work being done.


“This is an excessive amount of fill,” said Lesniak. “We do have the option of taking the owner to court. The fines are minimal… The most significant punishment and example to be set to prevent other people from doing this is to make them remove it and not allow this, retroactively.”


The property was red-tagged by the city for development without a permit, and city staff estimates that development continued until this past year.


Moncada argued that his client had gone to the county before performing the work on his property and had acted in good – if confused – faith.


“We have cookie-cutter-type findings that you have to meet, and unfortunately some cases are very distinct. It doesn’t always fit,” said Moncada. “The code isn’t keeping up with the development.”


In order for staff to approve a fill variance, applicants are required to meet five “findings of fact,” which are the same for every case. In this case, because of the large amount of fill involved and the manner in which it was placed, Lesniak said the applicant would have trouble meeting at least four of those findings.


The fifth finding, which was not applicable, is for projects located within a Critical Water Quality Zone or Water Quality Transition Zone.


Lesniak asserted that staff does not make value judgments on projects, whether or not they were done illegally. Their job is to determine whether a project meets the requirements of the code and, he said, in this case “they don’t even come close.”


“If they don’t meet the findings, the commission cannot grant the variance,” said Lesniak. “So I think this is a pretty black and white case.”


The commission ultimately voted in favor of staff recommendation, opting to deny the fill variance. They did so unanimously, in a vote of 6-0 with Commissioner Cynthia Banks absent.

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