During its Tuesday, Sept. 21 meeting, Marble Falls City Council issued a floodplain variance, with conditions, to a home built outside city regulations. Before granting the variance, which was granted to a home built in the 100-year floodplain on Lakeshore Drive, the council spent over an hour and a half discussing the issue.
Mayor Richard Westerman did not participate in the discussion or vote because he is related to the homebuyers.
To build within the 100-year floodplain of Lake Marble Falls, homes must be built within the city’s Flood Damage Prevention Ordinance, which was adopted in 1988, Assistant City Manager Caleb Kraenzel explained during the meeting. While six total ordinance variances have been issued since its adoption, none have been granted in the past 25 years.
To be in compliance, homes within the floodplain must have a minimum finished floor elevation of 764.2 feet above mean sea level. The finished floor elevation of the Lakeshore Drive home is 761.9 feet, which is 27.6 inches below the minimum requirement.
The noncompliance was not noticed by anyone until builder Will Brust sought a certificate of occupancy from the city.
Because the house is finished, the only remedies available to homeowners are to pay to have the house elevated, which could cost upwards of $100,000, demolish the home and start over, or be granted a variance.
“… We can be punitive, almost punishing, or merciful,” Councilman Dave Rhodes said. “There’s almost no middle ground here that I see. What happens to a perfectly good house … if we say no? It could get leveled, and that’s the end of that … and if we say yes, we make the staff have to answer (future) questions (from homeowners and builders).”
City staff recommended council not grant the variance, citing possible city insurance issues, future lawsuits that could come about from the decision, and ramifications if the city entered certain programs in the future.
Currently, the city is enrolled in the National Flood Insurance Program, which is under the purview of the Federal Emergency Management Agency. Because of this, any time a floodplain variance is approved, the city must report it to FEMA, Kraenzel explained. Variances could result in the federal agency putting the city on probation or rescinding NIFP enrollment, causing insurance rates for floodplain insurance policy holders to increase as a result.
City Attorney Patty Akers noted that, while one variance would likely not result in probation or unenrollment, exact repercussions are unknown. She also noted homeowners could attempt to sue the city for allowing the variance, which has happened in Texas courts before.
Jacob Cox, a lawyer representing Brust, the builder, made points in favor of approving a variance. He said the owners are willing to pay higher insurance rates caused by the issue and offered to sign a hold harmless agreement stating they would not sue the city for any future home damage caused by flood events.
He also noted that the city did not require the builders to turn in an elevation (Z-value) report earlier in the building process, which could have resolved the issue in time to correct it without incurring huge costs.
“Texas courts hold that the good and sufficient cause necessary for issuing a floodplain variance occurs when an exceptional hardship is created which relates to the owner’s land,” Cox said. “To be considered exceptional, it can’t be self-imposed or purely financial. This isn’t a purely financial hardship nor is it self-imposed due to the fact that the city supervised the process and failed to adhere to its common practices.”
City staff said they plan to require the Z-value report for future building projects.
Before voting, council members discussed the facts presented and also the issue of setting a precedent for future builders and homebuyers.
“I’m not worried about what the courts have found for precedence,” Councilman Dee Haddock said. “I’m more concerned about a flood of people coming in here saying, ‘You gave the variance to one, now we all want one.’”
After several motions were made and failed, council members voted to grant the variance with the condition that the builders and homebuyers get homeowners within a 200-foot radius of the property to also sign a hold-harmless agreement stating they would not attempt to hold the city responsible for potential issues caused by the particular variance.