HomeMy WebLinkAbout07-24-03 Fill Dirt Review Committee minutes
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MINUTES OF THE FILL DIRT
REVIEW COMMITTEE
JULY 24, 2003
1.
CALL TO ORDER
~,
The meeting was called to order by Committee Member Barry Beasley at 5:50 p.m.
Members of the Committee Present: Committee Members Barry Beasley and Chuck Engelken
(Mr. Engelken arrived at 6:33 p.m.). In addition, Councilmember Bruce Meismer was present.
Members Absent: Chairperson Mike Mosteit
Members of City Executive Staff and City Employees Present: City Manager Debra Feazelle,
City Secretary Martha Gillett, Assistant City Manager John Joems and Supervising Engineer
Robert Cummings
Others Present: Charles R. Tiner, J. D. Gettings, Dottie Kaminski, Charlotte Williams, Lloyd
Williams, Don Harbuck, Joann Parra, Mrs. Sidney Grant, Sidney T. Grant, Bill Scott, Colleen
Hicks and Fred Bender
2. APPROVE MINUTES OF THE JULY 18, 2003 FILL DIRT REVIEW COMMITTEE
MEETING
The Minutes of the July 18, 2003 Fill Dirt Review Committee Meeting were approved by
consensus.
3. PETITIONS, REMONSTRANCES, COMMUNICATIONS, AND CITIZENS AND
TAXPAYERS WISmNG TO ADDRESS THE FILL DIRT REVIEW COMMITTEE
The following citizens addressed the Fill Dirt Review Committee:
Charles Tiner of 2209 Lomax Road, La Porte, Texas 77571 - Mr. Tiner thanked the Committee,
Council and Staff for their time and status reports.
Mrs. Sidney Grant of 1907 Lomax School Road, La Porte, Texas 77571 - Mrs. Grant suggested
there be a grievance process with documentation, including person's name and the nature of the
complaint.
Sidney T. Grant of 1917 Lomax Drive, La Porte, Texas 77571 - Mr. Grant did live at 2310
Lomax Drive, which flooded due to the drainage problem. Mr. Grant feels citizens should be
allowed to build up their property.
Don Harbuck of 2302 Lomax Drive, La Porte, Texas 77571 - Mr. Harbuck feels the only way to
protect your home is to build up the property; it is not the dirt causing the problem, but the
drainage. Harris County is working on drainage improvements.
Bill Scott of 1802 Lomax School Road, La Porte, Texas 77571 - For official record, Mr. Scott
provided the Committee with a photo showing drainage problems at his home. In addition, he
provided a letter requesting Council to join the lawsuit against Bayport. Mr. Scott feels everyone
Fill Dirt Review Committee M.es- July 24, 2003
Page 2
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does not have to follow the same permit process; he was required to put in a swell on his
property. Citizens using fill dirt are not being made to do that.
4. COMMITTEE MEMBERS TO DISCUSS AND REVIEW THE ACCEPTANCE FOR
FILING AND THE ISSUANCE OF PERMITS UNDER ORDINANCE NO. 1444-A AND
RESOLUTION 2003-19 THE MORATORIUM REGARDING THE ACCEPTANCE FOR
FILING AND THE ISSUANCE OF PERMITS UNDER ORDINANCE NO. 1444-A AND
PROVIDE STAFF WITH DIRECTION TO RESEARCH THE BACKGOUND ON THE
CITY OF LA PORTE DRAINAGE, mSTORY OF THE ORDINANCES, AND
TESTIMONIES FROM THE CITIZENS
Committee Members explained changes on the Draft Exhibit to Ordinance 1444-A:
· Permit required
· Permit fee assessed
· 180 day permit for project completion
· Spreading of delivered fill must begin within 30 days
· Maximum fill to be 6 inches below top of adjacent crown of road
· Grading and Drainage Plan submitted, signed and sealed by a Registered Professional
Engineer
· Storm Water Pollution Prevention Plan and Revegetation Plan submitted
· Demonstration that watershed is not being adversely impacted
· Grade of swales to be custom engineered for each site
· Minimum overland slope for lot grading to be 0.2%-0.75%
· Sketch, Surveyor Site Plan showing proposed fill and proposed drainage
· Silt Prevention and Revegetation Plan required
· 1 ft top of bank swale offset from property line
· 5 ft top of bank swale offset from property line
· No fill dumped within 15 ft of property line
· No fill dumped within 5 ft of property line
· Address for site required and fill must be delivered to this address
5. RECEIVE STAFF REPORTS ON INFORMATION REQUESTED AT THE JULY 18,
2003 COMMITTEE MEETING
POLICIES & PROCEDURES
· Major changes to policies and procedures
· Updates to include better citizen notification
· Water Code, included in the policy, informs homeowner they are responsible for their
land and their actions
· Footnote on matrix regarding 12 foot dump, and stipulations on dump trucks hauling dirt
· Section to eliminate permits to 1 per property, per 6 months
· Statement indicating City does not provide dirt
· NFIP Community and must comply
· Statement on ponds not creating health hazards
· Provided Committee a list of in-progress items
6. NEW BUSINESS
No new business was discussed.
Fill Dirt Review Committee M.es- July 24, 2003
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7. COMMITTEE COMMENTS
Councilmember Meismer complimented staff on their work and completion in such a short time,
and putting the responsibility on the property owner.
Regarding the anonymous complaints grievance process, people should have to put their name on
the complaint.
Assistant City Manager John Joems stated the law does not allow citizens to report anonymous
complaints.
Committee Member Barry Beasley feels the Committee will not be ready on Monday, July 28,
2003, to bring their item before Council; they should wait until Monday, August 11,2003.
8. ADJOURNMENT
There being no further business to come before the Committee, this meeting was duly adjourned
at 6:39 p.m.
Respectfully submitted,
Ljr/ atJ/rtJv tllittdt
Martha A. Gillett, TRMC
City Secretary
Passed and approved on this 7th day of August 2003
~VI~
Chairman Mike Mosteit
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OVERVIEW
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OVERVIEW
At its July 24, 2003 meeting, the Fill Dirt Review Committee (FDRC) reviewed draft
proposals of possible exhibit attachments to Ordinance 1444-A and discussed a draft
revised policies and procedures guide for future fill dirt projects within the City of La
Porte's city limits. .
The committee requested staff refine and massage the set of draft policies and procedures
and related exhibits to handle future fill dirt permits. At the July 28, 2003 City Council
meeting, it was agreed that the FiJI Dirt Review Committee would reconvene on August
7, 2003 review the revised documents and attachments.
Staff has compiled a proposed matrix showing proposed requirements for future fill dirt
applicants for the committees review. Staff believes that it has successfully arrived at a
final version of the proposed matrix.
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ORDINANCE 1444-D
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ORDINANCE NO.
AN ORDINANCE AMENDING SECTION 11.02, DRAINAGE AND STORM SEWERS, OF CITY
OF LA PORTE ORDINANCE NO. 1444-A REGULATING THE PLATTING OR REPLATTING OF
LAND INTO SUBDIVISIONS IN THE CITY OF LA PORTE AND WITHIN THE
EXTRATERRITORIAL JURISDICTION OF THE CITY OF LA PORTE; PROVIDING THAT ANY
PERSON VIOLATING THE TERMS OF THIS ORDINANCE SHALL BE DEEMED GUILTY OF A
MISDEMEANOR AND SHALL UPON CONVICTION BE FINED A SUM OF NOT MORE THAN
TWO THOUSAND DOLLARS ($2,000.00) FOR EACH VIOLATION; FINDING COMPLIANCE
WITH THE OPEN MEETINGS LAW; PROVIDING A SAVINGS CLAUSE AND A SEVERABILITY
CLAUSE; AND PROVIDING AN EFFECTIVE DATE HEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF
THE CITY OF LA PORTE:
Section 1.
The City Council of the City of La Porte hereby finds, determines and
declares that all prerequisites of law have been satisfied, and hereby determines and declares
that the amendments to Section 11.02, Drainaae And Storm Sewers, of City of La Porte
Ordinance No. 1444-A, are desirable and in furtherance of the goals and objectives stated in the
City of La Porte's Comprehensive Plan.
Section 2.
Section 11.02, Drainage and Storm Sewers, of City of La Porte Ordinance
No. 1444-A is hereby amended by adding Exhibits "A" and "B", pertaining to the addition of a Fill
Dirt Permit, adding Fill Dirt regulations, grading standards, and swale standards; requiring sketch
plans and approval prior to the introduction of fill material; and providing for silt prevention and
revegetation standards. Said Exhibits "A" and "B" are attached to this Ordinance, and are
incorporated by reference herein as if set forth verbatim."
Section 3.
Section 11.02, Drainage and Storm Sewers, of City of La Porte Ordinance
No. 1444-A is hereby amended by adding a fill dirt permit fee. Said fee shall be $25.00 for the
first 49 loads of permitted fill dirt, and $2.00/load for each additional load. Any person who places
fill dirt on their property without first applying for and obtaining a fill dirt permit shall be guilty of a
misdemeanor.
ORDINANCE NO. 1444-A e
Page 2
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. Section 4.
Any person, as defined in Section 1.02(27) Texas Penal Code, who shall
violate any provision of this Ordinance, shall be deemed guilty of a misdemeanor and upon
conviction shall be punished by a fine not to exceed Two Thousand Dollars ($2,000.00). Each
day a violation of this ordinance shall continue shall constitute a separate violation.
Section 5.
All rights or remedies of the City of La Porte, Texas, are expressly saved as
to any and all violations of any Zoning Ordinance or alTlendments thereto, of said City of La Porte,
that have accrued at the time of the effective date of this Ordinance; and as to such accrued
violation, the court shall have all the powers that existed prior to the effective date of this
Ordinance; and as to such accrued violation, the court shall have all the powers that existed prior
to the effective date of this Ordinance; and that all existing violations of previous zoning
ordinances which would otherwise become non-conforming uses under this Ordinance but shall
be considered as violations of this Ordinance in the same manner that they were violations of prior
zoning ordinances of said City of La Porte.
Section 6.
If any section, sentence, phrase, clause, or any part of any section,
sentence, phrase, or clause, of this Ordinance shall, for any reason, be held invalid, such invalidity
shall not affect the remaining portions of this Ordinance, it is hereby declared to be the intention of
the City of Council to have passed each section, sentence, phrase, or clause, or part thereof,
irrespective of the fact that any other section, sentence, phrase, or clause, or part thereof, may be
declared invalid.
Section 7.
The City Council officially finds, determines, recites and declares that a
sufficient written notice of the date, hour, place and subject of this meeting of the City Council was
posted at a place convenient to the public at the City Hall of the city for the time required by law
preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government
Code; and that this meeting has been open to the public as required by law at all times during
ORDINANCE NO. 1444-A__
Page 3
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which this ordinance and the subject matter thereof has been discussed, considered and formally
acted upon. The City Council further ratifies, approves and confirms such written notice and the
contents and posting thereof.
Section 8.
This Ordinance shall become effective fourteen (14) days after its passage
and approval, however, implementation of this ordinance will not take place until 180 days after its
passage. The City Secretary shall give notice to the passage of the notice by causing the caption
to be published in the official newspaper of the City of La Porte at least twice within ten (10) days
after the passage of the Ordinance.
PASSED AND APPROVED THIS THE
DAY OF
,2003.
CITY OF LA PORTE
By:
NORMAN MALONE, Mayor
ATTESTATION:
By:
MARTHA GILLETT,
City Secretary
APPROVED:
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PROPOSED EXHIBITS/POLICIES
EXHIBIT A
TO
ORDINANCE
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444-A
All Lots Small Lots Large Lots
PERMIT REQUIREMENTS AND CONDITIONS (less than 1 acrel (1 acre or more)
1-5 Loads 6-49 Loads 50 and more Loads 6-49 Loads 50 and more Loads
1 Permit Reauired * * * *
2 Permit Fee Assessed * * * *
3 180 Dav Permit for Project Completion * * * *
4 Spreading of Delivered Fill Must Beain within 30 Days * * * * *
5 For Open Ditch Roadways Maximum Fill to be 6 inches below * * * *
top of adjacent crown of road
6 Recommended overland slope for lot grading to be 0.2%- * *
0.75%
SA For Curb & Gutter Streets, Grade Fill at 0.2%-0.75% toward *
street
7 For Lots Abutting an Alley Way, Match the Grade of the Alley * *
and Grade to Drain Toward Street
8 Grading & Drainage Plan submitted signed and sealed by * *
Professional Engineer licensed in the State of Texas
SA Storm Water Pollution Prevention Plan and Revegetation * *
Plan submitted
8B Demonstration that Watershed is Not Being Adversely * *
Impacted
8C Grade of swales to be customedJenaineered for each site * *
9 Sketch, Surveyor Site Plan Showing Proposed Fill Placement * .See Item 8 * .See Item 8
and Location of Proposed Drainaae drawn to scale
10 Silt Prevention and Reveaetation Dlan reauired .See Notes 3&4 .See Item SA .See Notes 3&4 .See Item 8A
11 1 ft Top of Bank Swale Offset from Prooertv Line * *
12 5 ft TOD of Bank Swale Offset from Property Line * *
13 No Fill Unloaded within 15 ft of ProDertv Line * *
14 No Fill Unloaded within 5 ft of ProDerty Line * *
15 Address for Site Required And Fill Must be Delivered to this . * * *
address
16 Any deviation from these permit requirements Shall be Review . * * .
and Approved By the City
Regulation
Note:
1 No dump trucks larger than 12 CY dump trucks shall be allowed for use in deliver to addresses off truck routes.
2 Only one Fill Dirt Permit will be issued for anyone property or address over a 180 day span.
3 Silt prevention plan shall at a minimum consist of silt fencing and/or block sodding two rows of sod wide along the leading edge of the filled area.
4 Revegetation shall consist of seeding, sprigging, sodding, turf establishment (or combination thereof) that produces an effective vegetative cover of 75%
within 90 days.
Information, Activity or
* = Required
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EXHIBIT "B"
NOTE: CROWNED AT SECTION A-A
MAX HEIGHT OF FILL
6" BELOW CROWN OF ROAD
SECTION A-A
LOT GRADING
PROPERTY
UNE
LOCATION
OF A-A
MAY VARY
MATCH
3' TYP. ADJACENT
GRADE
A
I AlL I
I AREA I
A
OFFSET
NOTE:
MIN. SLOPE 0.2 %
ROADWAY
LARGE LOT GRADING
MINIMUM SWALE
PROPERTY
UNE
OR ALLEY
CJ
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PROPERTY
UNE
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PROpS(t'I' UN'E
GRAoE TO sma;! =
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SMALL LOT / SMALL PROJECT
IN CURB & GUTTER AREAS
SMALL LOT/SMALL PROJECT
IN OPEN CHANNEL AREAS
CITY OF LA PORTE
FILL PERMIT DETAILS
604 W. Fairmont Parkway
Planing Dept./Engineering Div.
La Potte. Texas Tl'571
281-471-5020
DATE: JULY 2003 DRAWN BY: JR CHECKED BY: BS APPROVED BY: RAC
NOT TO SCALE DWG NO:
0703FDOl
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FILL DIRT PERMITS
!!iformation on Fill Dirt Policies
and Procedures
1. Fill dirt permit application can be obtained at inspections desk. For questions on Fill Dirt
permitting contact the Planning Department (281-471-5020) and schedule appointment with
City Engineer or his designated assistant.
2. The Texas State Water Code Section 11.086 reads as follows:
(a) No person may divert or impound the natural flow of surface waters in this state,
or permit a diversion or impounding by him to continue, in a manner that
damages the property of another by the overflow of the water diverted or
impounded
(b) A person whose property is injured by an overflow of water caused by an
unlawful diversion or impounding has remedies at law and in equity and may
recover damages occasioned by the overflow.
The homeowner is solely responsible for complying and adhering to the above state statute.
The homeowner may be held liable for failing to comply with Section 11.086.
3. Property owner should find their lots size and load estimate amount on the attached matrix
and comply with all bullets in that column.
4. Haul routes for the delivery dump trucks should be held to those routes listed in Section 70-
231 of the Code of Ordinances. Repetitive trips needed off of these designated routes will
result in the assessment of a TruckinglHauling surcharge. Any damage to the various streets
and thoroughfares of the City of La Porte shall fall under Section 70-259 of the Code of
Ordinances which reads as follows:
Any person moving or causing to be moved a load which, together with the weight of the
vehicle, exceeds the limit as set out in section 70-256, shall be liable to the city for any
damage done by any such excessively loaded vehicle to the streets, bridges or culverts in the
city and the acceptance of either of the permits provided for in this division shall be
conclusive evidence that the person to whom such permit is issued agrees to make good and
pay all such damages upon demand thereof made by the city.
5. In the cases of fill projects between 6-49 loads, the standard swale to be used shall conform
to at least the minimum dimensions shown on the example.
6. The City of La Porte is NOT responsible for providing fill dirt.
Cityhalll'(S)/ CPShare/FiII Dirt Pennitting/FILL DIRT POLlCIES2.DOC Revision July 2003
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7. No fill may be placed in the floodplain without compensating excavation. Any fill placed in
the floodplain must be accompanied by a sealed compaction test stating that the fill has been
compacted to 95% Standard Proctor or better.
8. After the property owner has demonstrated sufficient compliance with the intent of these
policies and procedures, a permit may be issued through the Inspection Division.
9. Any deposited fill dirt that is liable to hold stagnant water is a violation of section 34-128 of
the city's code of ordinances. Section 34-128 reads as follows:
The following specific acts and conditions are declared to constitute a public nuisance and
are hereby prohibited and made unlawful:
Any lot or parcel of real estate situated within the city which has the surface thereof filled or
partly filled with holes, or is in such condition that the lot or parcel holds or is liable to hold
stagnant water therein, or, from any other cause, is in such condition as to be liable to cause
disease, or produce, harbor, or spread disease germs of any nature or tend to render the
surrounding atmosphere unhealthy, unwholesome or obnoxious.
Cityhalll '(S)/ CPShare/FiII Dirt PennittinglFILL DIRT POLICIES2.DOC Revision July 2003
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ANONYMOUS COMPLAINT BACKUP
DATA
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City of La Porte
Interoffice Memorandum
To:
Fill Dirt Sub-com .
From:
John Joerns, Assis a
Date:
August 5, 2003
Subject:
Anonymous Complaints
Attached is an article regarding Attorney General's opinions #279 and #355 regarding open records
requests as well as open records decision #320. Essentially, the information on the individual informant
is excepted from disclosure under the Texas Public Information Act, Section 552.101, as information
deemed confidential by judicial decision, i.e. the informer's privilege. Furthermore, the City may
withhold any portion of the informer's statement that might reveal the informer's identity. Therefore, the
City has for many years operated with the position that the information on the informant was 1) optional
and 2) protected from disclosure.
JJ/ml
Attachment
c Mayor and City Council
Debra Feazelle, City Manager
John Armstrong, Assistant City Attorney
mem Practices Committee" to travel
cities to implement job descriptions, poli-
cies, staffing and services for the building
inspection depanment. (SM)
Objecriv~: Encourage Board of Directors
and Committee participc.rion.
Suategy: [ssue press releases to home
city newspapers. CPR)
Strategy: Give annual recognition gift
to Board members and Committee Chair-
persons. (A \VI)
Strategy: Hold a special dinner at Mid-
year meeting for Board members and
Committee Chairpersons. (A W)
Strategy: Mail list of committees to
1~~
Building Inspection
Departments Should Protect
Identities of Citizens
Reporting Code Violations
According to seve~1 opinions writ-
ten by the AuorneyGeneral of the State
of Texas, municipalities have a respon-
sibility and obligation to protect the
identities of outside complainants who
have orovided information concerning
possibie city ordinance violations. The
Texas Open Records Act determines
what information in the possession of a
city is to be made available to the public.
The Attorney General has interpreted
the Open Records Act to require that
inquiring citizens be provided with in-
formation concerning the general nature
of any complaint ag3inst them. The
names, addresses, and telephone num-
beu~owever, of the individual inform-
ants "are not subject to disclosure. _
[n Open Records Decision Number
279, the Attorney General interpreted
the Texas Open Records Act, Article
6252-17a, v.T.es., Sections 3(a)(1),
3(a)(8), and 3(a)(11) in response to a
request received by a city department to
provide the identity of a person who
reported a zoning ordinance violation.
Violators of the ordinance were guilty of .
criminal offenses - specifically. Class C .
misdemeanors. The Attorney General
determined that the identity of a person
who reports a zoning ordinance viola-
tion to a city is excepted from public
members requesting participation. (PR) TSignea.
Strategy: Develop Board of Directors AW=Awards and Scholarship
and Committee Travel Policy. (EG) BG=Budget
BP=Building Professional Institute
Plan of Action - Committee BY=Bylaws
Assignments C~.:-Code ~eview
From this, new Association commiuees ED-Edu~atl~n and Program
were created and each strategy was as- tG=:.tgl5lauve.
signed to one of the current committees. L lB-=._ (em~ers~lp
I 'II b h 'b-l- f h NM-Nommatmg
t Wl e t e responsl llty 0 eac com- p^ _p 'd 'Ad-
. . . h d .,",-- resl em s VlSOry
mlttee to mvesugate eac. strategy to e- PD-P ~ . 1 D I
termine a plan of action. ~ ro :sslona _ eve opment
Following is a list of committees and PR:~ublLc Relat~ns .
their abbreviation. Beside each strategy SM-",ound Management Practices +
listed above is the abbreviation for the
committee to whom the strategy is as-
disclosure as information deemed conn-
dential by the informer's privilege.
In Open Records Decision Number
355, the Attorney General again con-
cluded that cities .may withhold the
names, addresses and other information
that identifies the complainant in ques-
tion based on Open RecordS Decision
Number 279.
Although the informer's priVilege
usuallvarises in the context of a criminal
investigation, the Attorney General has
held in these opinions that it does apply
more comprehensively. The Auorney
General has stated that administrative
officials who have a duty of inspection
also have a duty to safeguard the in-
former's privilege.
Building Inspection Departments
clearly faU within this administrative
inclusion. Departments should be care-
ful. therefore. to protect the identities of
any citizen who provides any informa-
tion to the department relative to pos-
sible code violations.
Effective Inspection Programs
Could Lower Property
Insurance Rates
The insurance industry' is currently
studying a system to evaluate code en-
forcement activity as a factor in deter-
mining property insurance rates. Under
the proposed program, communities
with better code enforcement programs
would be el igible for lower property
insurance premiums. Conversely, resi-
dents and business in communities that
have not adopted a model code or that
do not effectively enforce a code could
pay higher premiums.
A preliminary draft of a Code En-
forcement Grading System Checklist
has been developed by a subcommittee
of the National Committee on Property
Insurance, a group created by property
insurance companies to explore meth-
ods, such as code enforcement, for re-
ducing property losses related to natural
hazards.
The proposed schedule includes five
major sections: background data, ad-
ministration of codes, plan review, in-
spection and enforcement. and existing
buildings. Each section has a series of
questions concerning the types of codes
~dopted. whether codes are current,
t.vhether there are code amendments
hat might reduce a model code's effec-
iveness, and how well the plan review
Imd field inspection programs are carried
out. The qualifications of code enforce-
ment personnel would be considered by
a check for professional credentials or
certifications from states or model code
organizations, and the number of per-
sonnel would be compared to the work-
load to determine if the inspection needs
are being met.
Upon completion. the new checklist
will be made available for use by insurers
as a method for evaluating risk and
establishing rates. +
BULLETIN 9
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Page 1 of2
Open Records Decision No. 279
September 14, 1981
Re: Whether name of person who reports zoning violation is open to the publ
Honorable Don Rorschach
Assistant City Attorney
City of Irving
825 West Irving Blvd.
Irving, Texas 75060
Dear Mr. Rorschach:
You have requested our decision as to whether the identity of a person who
reports a zoning ordinance violation is available to the public. You suggest that t
information is excepted from disclosure by sections 3(a) (1), 3(a) (8) and 3(a) (11) of
Open Records Act, article 6252~17a, V.T.C.S. You state that the person who violated
ordinance is subject to prosecution in municipal court.
You first contend that the identity of the complainant is excepted by sectio
3(a) (1), as information deemed confidential by the informer's privilege. On ~he bas
Roviaro v. United States, 353 U.S. 53 (1957), this office has on several occasions h
the informer's privilege applicable to communications made to law enforcement offici
regarding the alleged commission of a crime. See, e.g., Open Records Decision Nos.
172, 156 (1977).
In Westinghouse Electric Corporation v. City of Burlington, Vermont, 351 F.2
762 (D.C. Cir. 1965), the court discussed the rationale for the privilege:
The purpose of the privilege is not to protect the particular informer
from retaliation, but to protect the flow of information to the
Government . . .. [I]t rests on the assumption that a citizen,
recognizing the risk of retaliation, will be more likely to inform if
he knows that his identify will be kept secret. The privilege is
maintained to encourage possible informers in the future by giving
them some assurance of anonymity.
351 Fo2d at 768.
Although the privilege is usually invoked in the context of a criminal case,
applies as well to administrative officials having a duty of inspection or of law
enforcement within their particular spheres. Wigmore, Evidence, S2374, at 767 (1961
ed.), and cases cited therein. The Federal Trade Commission, for example, refuses t
disclose the identity of complainants. 16 C.F.R. S2.2(d). In Evans v. Department 0
Transportation of the United States, 446 F.2d 821 (5th Cir. 1971), the Court of Appe
for the Fifth Circuit upheld the refusal by the Federal Aviation Administration to r
a letter which charged an airp~ane pilot with acts indicative of behavior disorder a
mental abnormality. The administrator of the agency, who relied on the law enforcem
exception in the federal Freedom of Information Act, had determined that disclosure
the information would adversely affect the interest of the informant. The court obs
that, if the information were released to the pilot:
few individuals, if any, would come forth to embroil themselves
in controversy or possible recrimination by notifying the Federal
Aviation Agency of something which might justify investigation.
446 F.2d at 824.
As we have noted, the person who violated the zoning ordinance in question i
subject to prosecution in municipal court. The violator would, therefore, be guilty
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Page 2 of2
criminal offense--specifically, a Class C misdemeanor. See Code Crim. Proc. art. 4.
(jurisdiction of municipal court); Penal Code ~12.23.
We conclude that the identity of a person who reports a zoning violation is.
excepted from disclosure by section 3(a) (1) of the Open Records Act, as "information
deemed confidential by . judicial decision," i.e., the informer's privilege.
Very truly yours,
Mark White
Attorney General of Texas
John W. Fainter, Jr.
First Assistant Attorney General
Richard E. Gray III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assis~ant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Walter Davis
Rick Gilpin
Jim Moellinger
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Page I of2
Open Records Decision No. 355
December 31, 1982
Re: Availability under the Open Records Act of complaints received by Dalla
Environmental Health and Conservation Department
Mr. Edward H. Perry
Assistant City Attorney
City Hall
Dallas, Texas 75201
Dear Mr. Perry:
The Environmental Health and Conservation Department of the city of Dallas
enforces local and state requirements pertaining to air pollution. Enforcement opti
available to the department include criminal prosecution for violations of city ordi
regulations, or the Texas Penal Code. Violations of city ordinances constitute Clas
misdemeanors.
The Air Pollution section of the department has received a request from the
president of a particular corporation for records of all complaints concerning his
company that were made to that section between July 1980 and July 1981. Your letter
this office indicates that you regard the nature of the complaints as public informa
You contend, however, that the names, addresses, or any other information that would
tend to reveal the identity of complainants may be withheld from public disclosure.
seek our decision under the Open Records Act, article 6252-l7a, V.T.C.S., as to whet
this information may be protected. You base your claim upon section 3(a) (1)
spe.cifically, the informer's privilege -- and section 3 (a) (8) of the act.
We recently dealt with an Open Records Act request which, in all material
respects, was identical to yours. In Open Records Decision No. 279 (1981), we
determined that the identity of a person who reports a zoning ordinance violation to
is excepted from disclosure as information deemed confidential by the informer's
privilege. There, as here, violators of the ordinance were guilty of criminal offen
specifically, Class C misdemeanors.
Based on Open Records Decision No. 279, we conclude that you may withhold
the names, addresses, and other information tending to identify the complainants in
question.
Very truly yours,
Mark White
Attorney General of Texas
John W. Fainter, Jr.
First Assistant Attorney General
Richard E. Gray III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Walter Davis
,-
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MARK WHITE
Attorney General
SuDf.me Court BulldinO
P. O. Boa 12s.ea
AusUn. TX. 78711.2548
51214 7!1-2501
T.... "01874.'367
T...CDt".. 5'21..7!1-O266
1607 Main 51., SUite ,.00
Da",,, TX. lr.201-4709
21""..2.....
4824 Alberta Ave., Suite 160
it Paso, TX. ~2793
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1220 Dalla. Ave., Suite 202
Houston. TX. 77002-6986
713/15000666
806 BrDadway, SuUe 312
LubbOek. 1)(, 'nM01.3479
8061747.5238
.. N. Tenth, Suire B
McAllen. lX. 7850"'~
5121l582-4S.7
200 Main Plua, Suite 400
San AntoniD. lX. 7820S-2797
5'2122~'91
An Equal Opportunityl
AtII,mative Action Emp\Dye'
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The Attorney General of Texas
August 20, 1982
Major General Willie L. Scott
TexARNG, The Adjutant General
P. O. Box 5218
Austin, Texas 78763
Open Records Decision No. 320
ae: Whether certain documents
held by the Adjutant General's
Department are public under
the Open Records Act
Dear General Scott:
You have requested our decision under the Open Records Act,
article 6252-17a, V.T.C.S., as to whether information obtained in two
investigations of employee conduct conducted by the Adjutant General's
office is available to the public. You suglest that portions of the
material are excepted from disclosure under sections 3(.)(1), 3(a)(2),
3(a)(3), 3(a)(8) and 3(a)(11) of the Act.
The first series of documents relates to a report, dated October
24. 1979. of an investigation into allegations and counter-allegations
against various personnel of the Texas Rational Guard. You have
marked the rele~ant portions of these documents as "enclosure 5c."
Parties to the litigation relating to this investigation have already
inspected these records pursuant to court order. AI a result. section
3(a)(3) of the Open Records Act may no lODser be applied to except the
information from disclosure.
Neitber is the 1nfoT1ll8t1on excepted under secttons 3(a)(1) or
3 (a)(2) . Under section 3 (a)( 1) . which excepts lIinformation deemed
confidential by law," we have recognized both constitutional and
c01llll1On law privacy. None of the information submitted, however.
satisfies the requirements imposed for either kind of privacy. Open
Records Decidon No. 260 (980). Section 3(a)(2). which requires a
showing that disclosure of particular information about public
employees would constitute lIa clearly unwarranted invasion of personal
privacy," 18 also inapplicable to the information submitted. Open
Records Decision No. 260 (1980).
Although section 3(a)(8). which excepts law enforcement records.
is applicable to the Texas National Guard. Open Records Decision No.
172 (977). the availability of the exception is greatly restricted
when a file has been administratively closed. Open Records Decision
No. 216 (1978). You have not suggested that access to the information
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Major General Willie L. Scott - 'ale 2
will "unduly interfere with law enfoTcellent and crime prevention," and
we conclude there faTe that the lnfol'1lUltlon at issue here 1s not
excepted from disclosure undeT section 3(a)(8). Open Records Decision
No. 252 (1980). We note, howevet', that you have also raised the
informer's privilele 8S incorporated into section 3(a)(I) of the Open
Records Act. We will discuss this privilege subsequently in this
decbion.
A large portion of the 1nfonultion marked in enclosure Sc is,
however, excepted under section 3(a)(11) of the Act as an "interagency
memorandum." That exception 18 applicable to the information
submitted to the extent that it consists of "advice, opinion and
Tecommendat10ns." Open Records Decision Nos. 273 (1981); 239 (1980).
Accordingly, we have marked those parts of the documents in enclosuTe
5c which may be withheld under section 3(a)(11).
The second series of docuaents consists of three m&Tked portions
of enclosuTe 5c and a report of an investigation, dated February 27,
1978, into lrrelularities related to reports submitted by an
individual In the Texas Rational Guard. Portions of the report
contain the adVice, opinion and recommendations of tbe investilator,
and, as noted above, are excepted from disclosure under section
3(a)(I1). Part of the report. as well as the marked portions of
enclosure 5c, is also excepted under section 3(a)(l) of the Act, as
information deemed confidential by the informer's privilege. In Open
Records Decision No. 172 (1977), this office held that a report of an
investigation into tbe conduct of a formeI' ofUcer of the Texas
National Guard \las except.ed from disclosure undeT section 3(a) (1), "as
tending to reveal the identity of infot1lumts." The decision noted
that. while the privilege normally applies only to the identity of an
informant. and not to the ~ontents of bis communication. the eontent
itself is privileged vhen it would tend to reveal the identity of the
informant.
As in Open Records Decision No. 172. it appears that disclosure
of the informeTs' statementa would here tend to reveal their identity.
Thus. in accordance \litb the reasoning of that decision, we believe
that the entiTe nport dated February 27, 1978. together with the
three relevant portions of enclosuTe 5c. may be withheld from
disclosuTe under section 3(a)(II). as advice, opinion and
recommendations, or undeT section 3(a)(1). as information deemed
confidential by the 1nformeT's privilege.
MAR KWH I T E
Attorney General of Texas
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Kajor General V1llte L. Scott - 'a.e 3
JOHN v. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Asslstant Attorney Ceneral
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Walter 1)avis
Rick Gilpin
Patricia Hinojosa
Jim Moellinaer
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