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HomeMy WebLinkAboutA6 Mr. Duane Huffer and Mrs. Angela Doss 2124 Torrey Pines Rd. Ames, IA 50010 July 15, 2014 Judy Parks Ames City Attorney City Hall 515 Clark Ave Ames, IA 50010 Dear Ms. Parks: We received a letter dated July 8, 2014 from Karen Marren notifying us of an alleged fence ordinance violation on our property located at 2124 Torrey Pines Road. The letter states that the rear portion of the privacy fence we are building along the property lines of our back yard violates Ames Municipal Code Section 29.408(2)(c)(iii)(b), because it is 6 feet tall and is not 5 feet from our property's rear lot line. The letter asks us to either take down 2 feet of the fence or move it back 5 feet by July 23, 2014 which is exactly 2 weeks from the date we received the letter. We disagree with Ms. Marren's interpretation and enforcement of Ames Municipal code Section 29.408(2)(c)(iii) for multiple reasons which we lay out below. As such, we are not moving the fence or lowering it 2 feet at this time, due to errors in interpretation of the code section. First, however, we provide some background on why we have invested a significant amount of money, effort, and time to erect the fence along the side and rear property lines of our backyard. We own two Samoyed dogs that need to be outside a good amount of time, because of their size, athleticism, and energetic natures. The previous owners of the property built a chain link fence, approximately 4 feet high, around the backyard. The fence did not extend to either the side or rear lot lines,because the prior owner was unsure of the lot lines when the fence was installed and put the fence where he thought it was "safe." Because our back yard abuts a public way that contains the bike path on the west side of Stange Road; our dogs sometimes bark at people on the path, or they bark at rabbits and squirrels right outside the fence. Otherwise they only bark intermittently when they are playing with each other. We also recently discovered that people come up to the fence and our dogs stand up and put their front paws on the top of the fence to be petted by those who pass by on the bike path. This concerns us, in the event our dogs might bite someone if they feel scared or threatened, and even creates potential liability for us. Late last summer the neighbors on both sides of our property informed us our dogs were barking too much, and one threatened to call Animal Control if we didn't do something about it. We thanked them both for informing us, and we immediately started using shock collars on our dogs all the time that shock them every time they bark. We had been using the shock collars on the dogs intermittently with the invisible fence shock collar to keep the dogs from going in the flower beds along the fence. For example, when letting the dogs out early in the morning to go to the bathroom before we went to work, we put the shock collars on. Our dogs started whining and yelping whenever they got shocked, and we quickly realized that using the shock collars all the time when our dogs were outside was not a good long term solution for us or our dogs. We told both neighbors that we would build a privacy fence along our side and rear property lines in the back yard starting this Spring so that our dogs would no longer be able to see people or animals outside the fence. We did not put the neighbors on written notice at that time that they would have to pay for part of the fence as Iowa Code Section 359A.1A allows. We felt it should be our responsibility to build and maintain the fence, since it is our dogs that are causing concern to our neighbors. Before we started building the fence we were going to have our lot surveyed,but we located survey pins/reference points with the help of the neighbors so we would reasonably build the fence abutting the lot lines without having to get it surveyed. One of the neighbors even told us that there was no need for us to get our lot surveyed because he knew where the survey pins were. As we were building the fence, one of the neighbors was not happy because he believed we had to build the fence four feet off the property line. A short time later we received the letter from Ms. Marren that our fence did not comply with the rear setback. Ames Municipal Code Section 29.408(2)(c)reads in its entirety: (c)Location and Height. (i)Height in Front Setbacks& Yards. The maximum height of fences in front setbacks and front yards is four(4)feet. (ii)Height in Side and Rear Setbacks. The maximum height for fences in side or rear setbacks is six (6)feet,except as further limited by this section in setbacks abutting street rights-of-way. (iii)Height in Setbacks Abutting Rights-of-way.The maximum height of fences in any setback abutting a street right-of-way is four(4) feet,except that up to six(6) feet of fence is allowed in any side or rear setback if: (a)The lot does not abut the front yard of any other residential property along the same side of the street; (b)The fence is at least five(5)feet from the property line abutting a street right-of-way. Within this five(5)foot area, landscaping is required consisting of one landscape tree for every 50 lineal feet and two high or three low shrubs for every ten lineal feet of area to be planted. Ms. Marren's letter failed to list both possible exceptions to the general 4 foot height limitation for fences in a rear setback abutting a street right-of-way. Because there is no coordinating conjunction, such as an"and," or an "or"between the two exceptions the second exception only applies if the first one does not. This is further evidenced by the semicolon between the two exceptions. Semicolons are used to connect two independent clauses with a pause that is not as long as the pause that goes with a period. Therefore, the exception stated in(a) is completely independent of the exception stated in(b). Our property meets the first exception listed in(iii)(a). Our lot does not abut either of our neighbors' front yards along the same side of the street. We are thus allowed to build a 6 foot tall privacy fence along the rear lot line. The second exception requiring a 6 foot high fence to be moved 5 feet back from the property line does not apply to our property. The second exception only applies to rear fences on rear facing properties that abut a front facing property. This may be seen when Ames Municipal Code Section 29.402(4) is interpreted in conjunction with Section 29.408(2)(iii). Our property is zoned as RL according to the current Ames City Zoning Map. Ames Municipal Code Section 29.402(4) reads in its entirety: 4) Through Lots and Corner Lots.On through lots, and corner lots with two or more abutting streets,except lots within the RL, RM. And UCRM Zoning Districts, the required front setback shall be provided on all streets. Reading Section 29.402(4)in conjunction with 29.408(2)(iii)(b) shows that the setback of five feet is intended entirely for when a neighbor's front yard is facing the street abutting the rear of your property or the side of your property. Our interpretation of Ames Municipal Code Section 29.408(2)(iii) is further supported by the fact that there are fences more than 4 feet high all over the city that are closer to a property line abutting a street right-of-way than 5 feet when the neighbor's house does not face the abutting street right-of-way. Several of these fences are right in our subdivision along Stange Road and others are readily found further north on Stange Rd. and on Bloomington Rd. Enforcement action has not been taken against the property owners of these fences, as evidenced by the fact that these fences have not been moved back 5 feet from the street right-of-way abutting the property line the fence is erected along, or lowered to a height of 4 feet. The rear fence along our rear lot line is also 37 feet 5 inches back from Stange Road, due to the bicycle path that runs down Stange from 24" Street to University Boulevard. The bike path is 8 feet from the street and is 8 feet wide, and our fence is 21 feet 5 inches from the bike path. This bike path is part of a public way that runs along Stange Road from 24" Street past our subdivision and down to 13" Street. Our property does not abut a street right-of-way along the rear property line, but rather abuts a public way that contains a bike path; and our rear property line is 37 feet 5 inches feet from the street right-of-way, which is much further than the required 5 foot setback for a 6 foot tall fence along a property abutting a street right-of-way. This is further evidence of why Ames Municipal Code Section 29.408(2)(iii)does not apply to our property. It only applies to street right-of-ways and not to public ways. Once again, if this interpretation is incorrect, there are numerous fences that are readily seen on main thoroughfares in Ames that do not comply. We therefore respectfully request that the City of Ames cease its attempts to force us to comply with a municipal code section that does not apply to our property. If further attempts are made to force us to lower or move the rear portion of the privacy fence along our rear lot line, we will have no choice but to pursue any and all legal options available to us. Sincerely, Angela Doss, J.D. and Duane Huffer Ph.D., J.D. cc: Karen Marren, Planning&Housing