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Item #:
Date: 03/11/15
CITY OF AMES
DEPARTMENT OF PLANNING AND HOUSING
REPORT TO THE ZONING BOARD OF ADJUSTMENT
DATE PREPARED: March 2, 2015
MEETING DATE: March 11, 2015
APPEAL FROM A DECISION OF THE ZONING ENFORCEMENT OFFICER: An
appeal from a decision of the Zoning Enforcement Officer requiring that a 6 foot fence
abutting a right-of-way be setback 5 feet from the property line and landscaped in
accordance with Section 29.408(2)(c)(iii).
PROPERTY OWNERS: Duane Huffer and Angela Doss
APPELLANT: Duane Huffer and Angela Doss
LOCATION: 2124 Torrey Pines Road (Attachment A)
ZONING: Residential Low Density Zone (RL)
SUPPORTING INFORMATION: See the Appeal from a Decision of the Zoning
Enforcement Officer Supporting Information Form (Included with the submitted
application materials) and the letter of December 19, 2014, from the Director of
Planning and Housing interpreting the zoning code (Attachment B).
BACKGROUND:
After receiving complaints regarding the installation of a non-compliant fence on the
property at 2124 Torrey Pines, an inspection was conducted by Planning staff and the
City's Community Codes Liaison on July 3, 2014 to determine if a notice of violation was
needed to address the fence. It was determined at that time the fence was being
installed in violation of the height and setback allowances under Section 29.408(2)(c) of
the Ames Municipal Code. A Notice of Violation letter was sent on July 8, 2014
notifying the property owner of the code allowances for fences within setbacks abutting
street rights of way and the corrective action needed to be in compliance with the code.
A follow up inspection date of July 23, 2014 was noted for verification of fence
compliance.
On July 15, 2014 a letter was received by the City of Ames Legal Department from the
property owners noting their disagreement with the fence code interpretation of staff and
as such the violation would not be corrected prior to the follow up inspection date. The
site inspection on July 23, 2014 confirmed that the violation had not been corrected.
The letter to City of Ames Legal Department was referred to the Zoning Enforcement
Officer for review by Inspections and Planning Divisions.
On December 19, 2014, a second Notice of Violation Letter was sent to the property
owners by the Planning and Housing Director notifying the property owner of their
opportunity to appeal the interpretation of the Zoning Enforcement Officer as allowed
under Section 29.1508(1) of Chapter 29 Zoning.
APPLICABLE CODE (Pertinent Section Highlighted):
Section 29.408(2):
(2) Fences.
(a) Applicability. These standards apply to all zoning districts except
General Industrial (GI) and Planned Industrial (PI).
(b) Types of Fences. These standards apply to walls, fences and
screens of all types whether open, solid, wood, metal, wire, masonry, earthen, or other
material.
(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.
(iv) Height Outside of Setbacks. The maximum height for fences
that are not placed in setbacks is eight (8) feet, except that in
any portion of a front yard fences shall not exceed fou
feet.
(v) Retaining Wall. In the case of retaining walls and supporting
embankments, the above requirements shall apply only to
that part of the wall above finished grade of the retained
embankment, provided that the finished grade at the top of
the wall or embankment extends at least 20 feet or if the
available area is less than 20 feet, the grade extends to the
principal structure. Otherwise, it will be considered an
earthen berm and will be subject to the height limitation for
fences.
(vi) Visibility Triangle. All fencing shall meet the requirements of
the visibility triangle as defined in section 29.408(5) of the Municipal Code.
(d) Prohibited Materials. Barbed wire, razor wire, electric, and similar
types of fences are prohibited.
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BASIS OF DEPARTMENT DECISION:
In May 2000 when the current code was enacted, through lots (lots, other than corner
lots, which have frontage on two streets) were required to maintain a front setback on
both abutting street frontages. Fences at that time were allowed a maximum height of
four feet in any front setback.
In response to an increase in variance requests to allow fences taller than four feet
within the functional rear yard of a through lot, Council enacted in September of 2001 an
ordinance that added the following language to the fence code:
"In the case of through lots a maximum fence height of six (6) feet is permitted
along the functional rear lot line, subject to a five-foot setback being provided
with a landscaping element equal to 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.
The landscaping shall be planted within the five-foot setback area"
This required that on through lots, a fence located along the functional rear lot line (the
property line not used as the front or primary access to the site) be allowed an
increased fence height to 6 feet from the previous code required 4 feet, if the fence
were setback and landscaped according to the standards.
In October of 2003, an ordinance was passed to change the setback requirements for
through lots and corner lots, which exempted properties within the RL, RM, and UCRM
zones from providing a front setback on all street frontages. Therefore, such as in this
case, the through lot must provide a front setback at the front property line, and a rear
setback along the functional rear lot line or the second street frontage for the property.
However, no change at this time was made to the fence requirements for through lots
as previously noted above from 2001.
In September of 2004, being the location of required setbacks had been changed on
through lots and corner lots, a requirement was added to the fence code that properties,
specifically corner lots, where the side yard is abutting the front yard of an adjacent
property, the maximum fence height could not exceed four feet. This was in an effort to
eliminate the blank wall effect that was happening when 6 foot tall fences were being
built along public rights of way.
So by end of 2004 the fence requirements for fences on through lots and corner lots
already required that fences not exceed 6 feet in the rear setback along the rear lot line
(second frontage line) on a through lot unless it was setback 4 feet and landscaped.
The code also had language that addressed a maximum 4 foot fence height along a
side yard on a corner lot abutted a front yard of a neighboring property.
In 2010, when City Council reviewed the zoning code and the need for a code clean up,
one section of the code that was requested was the fence code. The request was to try
to add clarity and an organized structure to the fence regulations based on the amount
of amendments since the enactment of the code in 2000. Therefore, as requested, a
revised format was proposed and approved in December of 2010 (Ordinance 4052) for
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the entire section 29.408(2) to only reorganize and format the fence standards, no
change to the intent or regulation of fences was proposed. The City Council report
noted the following changes to the fence code at that time:
o Headings have been added to each subsection to help the reader quickly
identify pertinent standards.
o Setback and landscaping requirement have been consolidated into one
section instead of being repeated in multiple sections.
o Front yard openness potentially being blocked by a neighboring owner's
side yard fence is more concisely defined versus broadly references.
o The term "functional" as it pertains to front yard has been taken out
because there is an existing definition of "yard" already in the zoning code
that accomplishes the same policy.
While the fence code was reorganized from its original language into the current format,
the interpretation and application of the code since 2001 has always been that for
fences to be allowed to reach 6 feet in height when within a setback abutting a public
right-of-way, the lot shall not abut the front yard of a neighboring property and both a 5
foot setback and landscape requirement must be met.
BASIS FOR APPEAL OF DECISION:
The applicant notes (in the applicant's submittal materials) that there are two exceptions
noted for fence height and setback for a property line abutting a right-of-way. And that
the use of a semicolon is indicating them as two separate and independent statements.
Therefore being his property meets subsection a of Section 29.408(2)(c)(iii), subsection
b of that same section does not apply to his property.
With this interpretation of the code the five-foot setback and the landscaping would not
be required for a six-foot fence along the rear property line abutting the right-of-way,
unless the lot abuts a front yard of a neighboring property along the same frontage. In
staff's interpretation, this argument goes against the intent of the 2004 amendment to
the fence code, which was approved to eliminate the "blank wall" issue of six-foot
fences abutting public rights-of-way, without any setback or landscaping. It would also
mean that by simply setting a fence back five feet, you could have six-foot fence
abutting another person's front yard. This would infrequently occur for a through lot, but
could occur with a corner lot more frequently.
The applicant also points out in the appeal documents and gives examples of other
properties in the city with fences in similar locations to a height of 6 feet. This does not
demonstrate a different interpretation of the reading of the standards than have been
described in this report. Being the City does not issue construction permits for fences,
staff is unable to determine when any specific fence was installed, unless a complaint
was received by the city during the actual installation of such fence. At the time of
installation of a fence, as in this instance, if a complaint had been received a violation
notice would have been sent to the property to correct such violation. Being the fence
codes have evolved over time, staff is also unable to determine, looking at the
submitted photos, which code may have applied to any specific fence therefore, staff is
unable to say whether any of the fences noted are in violation of the fence standards.
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ALTERNATIVES:
1. The Zoning Board of Adjustment can find that the Zoning Enforcement Officer
made the correct interpretation of Section 29.408(2)(c)(iii) in determining that a 6-
foot fence abutting a right-of-way must be setback 5 feet from the property line
and landscaped in accordance with Section 29.408(2)(c)(iii).
2. The Zoning Board of Adjustment can grant the appeal if it finds that the Zoning
Enforcement Officer did not make the correct interpretation of Section
29.408(2)(c)(iii), thereby allowing a 6 foot fence located in a rear yard abutting a
right-of-way to be located on the property line without compliance with Section
29.408(2)(c)(iii)(b) when the property does not abut a front yard of a neighboring
property.
3. The Zoning Board of Adjustment can table this appeal application and request
additional information from City staff or the applicant.
S:\PLAN_SHR\Council Boards Comm issions\ZBA\Appealing the Decision of the Zoning Ofricer\2124 Torrey Pines-02-11-15.docx
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Attachment A
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Attachment B
AmfeS.
Sinart CJaoiee
December 19,201 1
Duane Maynord Iluffer
2124Torrey riles Road
dines,LA,50010
1tE: ?notice(if Violation at 2124 Torrey fines Rwid
Dear Mr.I iuffer:
the City of Arnes is.in receipt of'y°our letter addressed to the.City Attorney fluted July 15,2014
regarding your position in respon fse to the oticc o V iolation issued on.luly k.2014. The City
of Antes is now re-spondim,to the letter and its claitm of conforn2ance to the Arises Municipal
Code. Staff completed the follow up visit on July `4, 2014 aS was specified in the original
violation notice. Staff ht5 also recently observed the site to cooniirnt its Current conditiuus, U1pom
review of the site and the Municipal Code, we have determined the subject fence to he: ill
violation of the fence standards due try the,folhnvinl,code sections noted in bold below:
See_29.40N(2)(e)fences.
(c)Location and Height.
(iii)Height in Setbacks Abutting Rights-of-1vay.The rnaximurn height of fences in ally
setback abutting a street right-of-way is fotu-(a)feet,except that tip to six(6)feet of fence
is allowed in any side or rear setback if:
(b)The fence is at least five(5)feet front the property line abutting a street right-
of-svay.U"ithin this five(i)foot area,landscaping is required consisting of one
landscape tree for every SO lineal feet and two high or three low shrubs for every
ten lineal feet of area to be planted.
(iv) Ileil ht Outside of Setbacks."The.inaxinn m hei ht for fences that are not placed in
setbacks i.eilght(8)feet,except that in anv portion of a tiont yard fences shall not exceed four
(4)feet.
Corrective Action: The fence must be Io+xered to a irnaxinium hczight and related property line:
setback standard in coinpliance with the Aoics Municipal Code. No portion of the lessee
(includutg the brick base and support posts)may exceed a height of four feet from grade to the.
Planning and Housing Department 515239 54n0 —i, 515 Clark Ave.P_o,aox 811
515.299,5404 1- Ames,to 50010
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Attachment B, Cont.
Duane Nlaynord FlUffer
Page 2
Deccm ber 19,201-4
highest must portion of the fence at the rear property line. Should you wish to establish a G foot
tall fence along,the rear of the property,the fence must be setback dive feet from the rear lot line
and include the required landscaping,as identified in section 29,408(2)(c:)(iii)(b)as noted above.
The current fence design and location does not achieve either of these requireulents.
If you wish to appeal the code interpretation of the Zoning Enforcement Officer as allowed
under Section 29.1508f 1)of Chapter 29 Zoning,;in application of such an appeal may be filed
vvith the Zoning Board of Adjustntcrtt tivithin 30 days of the elate of this letter.The application
for filing an appeal c:ut be found on the Planning Division page of the City of Antes website at
�c��w utt ufiame�t.�rg.
The City hopes to wok vvith you to resolve this issue in a timely manner. Inspection staff will
check back alter January 20, 2015 to 'verify either compliance_, or will look fear you to have
submitted an appeal application vvithin such time. if you have tiny questions or concerns about
this matter,please contact the Inspections Division at 515-239-5153.
Respectfully,
KcJly Dickinann.Director ol'Plannim,and Ilousim
cc:
Scana Perkins,Building Officiallloning Enfdreernent Ofiicer,
Fire Department,Inspections Division
Sara`ti'aoN1ecteren,Comm kill ity Code Liaison,Inspections Division
-karen Marren,Planner,Planning Divi ion
Jessica Spoden,Assistance C itu.Attorney,Segal Department
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