HomeMy WebLinkAboutA004 - Staff Report dated October 26, 2022 Item #: 3
Date: 10/26/22
CITY OF AMES
DEPARTMENT OF PLANNING AND HOUSING
REPORT TO THE ZONING BOARD OF ADJUSTMENT
DATE PREPARED: October 21, 2022
MEETING DATE: October 26, 2022
APPEAL OF A DECISION OF THE PLANNING DIRECTOR REGARDING A FENCE IN
THE FRONT YARD AND THE FRONT YARD SETBACK:
The Planning Director's decision is that the unroofed structure enclosing an area (See
Attachment B — Photos) is a "Fence," as defined in Section 29.201(74). As a fence, the
structure is limited in its height and location on a property per the standards of the Zoning
Ordinance. The appellant's fence exceeds the maximum height of four feet for fences in
the front yard.
Mr. Thompson (Appellant) asserts that the decision of the Planning Director is an incorrect
interpretation of the Zoning Ordinance and that the structure, which is six to eight feet in
height and encloses space of approximately twelve by twenty-eight feet, should not be
classified as a fence, but instead as a "landscape accent" that does not have the same
height and location restrictions as a fence.
Note the appeal is regarding the definitions and standards of the Zoning Ordinance, it is
not a property specific exception or variance from a standard of the Zoning Ordinance.
PROPERTY OWNER(S): Grant and Thressa Thompson
APPELLANT: Grant Thompson
LOCATION: 3207 Oakland Street (See Attachment A — Location Map).
ZONING: Residential Low Density (RL)
SUPPORTING INFORMATION: Applicant information included as a separate document
with the report.
BACKGROUND:
City staff viewed the property on August 31, 2022. A "Notice of Violation at 3207 Oakland
Street" (See Attachment D — Notice of Violation) was sent from the Department of
Planning and Housing to the property owners (Grant and Thressa Thompson) on
September 1, 2022.
1
At that time, it was noted that the height of the fence in the front yard exceeds the
maximum height permitted for fences in front yard setbacks and yards, and the height of
fences in setbacks abutting a street right-of-way. The property owners were to respond
by September 15, 2022, with a plan that includes actions that would be taken, and timing
of those actions, to bring the fence into compliance with the requirements of the Ames
Municipal Code. Mr. Thompson (appellant) contacted City staff to discuss the citation and
has chosen to appeal the decision of the Planning Director to the Zoning Board of
Adjustment.
BASIS OF DEPARTMENT DECISION:
The City of Ames Zoning Ordinance applies setback and other development
regulations to all structures. In this situation, staff determined that a structure was
constructed on the property, staff classified the structure as a fence, the fence did
not meet standards for a "full encroachment" into the front yard setback, and that
the fence does not meet the allowable fence heights for being in a front yard.
Additionally, as discussed with the appellant's appeal, if the structure is
determined to not be a fence and is a "landscape accent" it is still subject to fence
limitations due to the design and configuration of the structure.
The relevant definitions and Zoning Ordinance sections are identified below.
Definitions
Sec. 29.201 DEFINITIONS.
(223) Structure means anything constructed or erected, the use of which requires, directly or
indirectly, a permanent location on the land.
The Zoning Ordinance considers essentially all constructed improvements above ground
to be structures, this includes parking areas, buildings, fences, etc. Staff has determined
that the constructed object using wood materials with a permanent location on the ground
qualifies as a "Structure," defined in Section 29.201(223). The structure varies in height
between six feet and eight feet and encloses space of approximately twelve by twenty-
eight feet.
(74) Fence means an unroofed barrier or unroofed enclosing structure, including retaining
walls.
Staff finds that the structure is a barrier or structure enclosing an area. The purpose of
the vertical structure is to enclose, visually and physically, the garden space. This is
supported by the appellant's statements in the email received from Grant Thompson on
September 2, 2022, in which he states, "Given the tree cover of the neighborhood
and exceedingly strong deer presence this is why I sought to locate the garden
where I did and at the height I did" (See Attachment C — Email from Appellant).
2
Setbacks
The Zoning Ordinance requires all structures to meet setbacks based upon the applicable
standard for the zoning district and type of structure. The Ordinance does provide for
certain specific projections into the setbacks as listed in the Zoning Ordinance. At issue
in this appeal is Section 29.402(2) which gives a list of permissible projections: minor
projections, architectural projections, and full projections.
Section 29.402(2)(c) lists full projections allowed into the setbacks. Staff highlight the area
of contention below.
Sec. 29.402. SETBACKS.
(1) Building Setback Standard. Except as provided below, all buildings and structures,
Principal and Accessory, shall be located to comply with the minimum and maximum
Building Setbacks established for Principal and Accessory Buildings listed in each Zone
Development Standards Table, Supplemental Development Standards Table, condition, or
other regulation applicable to the lot or the use being employed at the site.
(2) Extensions into Required Building Setbacks. Certain building elements and site features
are allowed to be located within or project into required setbacks.
(c) Full projections allowed. In addition to the minor projections listed in the previous
section, the following features are allowed to fully project into required setbacks:
(viii) Landscape accents that include but are not limited to arbors with a coverage
area no greater than 15 square feet; fountains and statuary up to four feet in
height, and constructed ponds and waterfalls at or below finished grade, and
similar incidental landscape accents. The design and location of accent features
shall not have the effect of creating a continuous wall that does not meet fence
standards.
(xi) Fences as allowed in Section 29.408(2);
(xii) Planter boxes/walls at allowable fence heights;
The vertical structures form a fence based upon the definition of fence and is not a
landscape accent. If it were a landscape accent it would still be subject to fence
limitations. Staff finds that the vertical structures have "the effect of creating a continuous
wall" that does not meet fence standards, which Section 29.402(2)(c)(viii) prohibits.
Fence Standards
Section 29.408(2)(c)(i) of the Ames Municipal Code identifies the applicable provisions
for fences in this situation that (underlined in bold type)that constitute the violation (See
Attachment D — Notice of Violation):
3
Sec. 29.408. OTHER GENERAL DEVELOPMENT STANDARDS.
Sec. 29.408(2) Fences.
(2) Fences.
(a) Applicability. These standards apply to all zoning districts except General
Industrial (GI), Research and Innovation (RI) 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.
BASIS FOR APPEAL OF DECISION:
The appellant's ability to appeal a decision of the Zoning Enforcement Officer is given in
Chapter 29.1403(8)(a) as an aggrieved party. In this case, the appellant believes the
Planning Director has incorrectly interpreted the Zoning Ordinance by determining the
structure recently constructed in the front yard of the property at 3207 Oakland Street is
a "fence," regulated in Section 29.408(2). The appellant asserts that the structure is not
a fence, but is a garden trellis, regulated in Section 29.402(c)(viii) as a "Landscape
Accent."
The appellant states the following in the Application submitted (See Supporting
Information included with the report):
• "The garden trellis is misclassified as a fence, subjecting it to the regulations of
fences as defined in the Municipal Code.
• As a trellis, the structure is regulated by Section 29.402 SETBACKS 2(c)(viii)
Landscape Accents.
• The term "continuous" in the landscape accents text is undefined and subject to
interpretation and/or inconsistent application."
The appellant asserts that the vertical structures qualify as "landscape accents" under
Sec. 29.402(2)(c)(viii) and that the purpose of the vertical structures is to function as a
"trellis." The definition of a "trellis," as provided by the appellant is, "a framework of lattice
used as a screen or as a support for climbing plants."
Although "trellis" is not specifically described as a "landscape accent," the appellant notes
that "arbors" are specifically mentioned as a "landscape accent." The definition of an
"arbor," as provided by the appellant is, "a shelter of vines or branches or of lattice work
covered with climbing shrubs or vines." (Note that staff does not disagree that a trellis can
be a landscape accent as a stand-alone feature, it is when they are situated together,
they are subject to fence limitations.)
The appellant states, "This clearly sets precedent that lattice framework for supporting
plants falls under the landscape accent code. A trellis, like an arbor, is lattice framework
4
for supporting plants, thus a trellis would be a landscape accent. The structure at 3207
Oakland is a landscape accent that consists of a trellis."
The appellant states in the Supporting Information that, "The stipulation in the landscape
accents code stating `The design and location of accent features shall not have the effect
of creating a continuous wall that does not meet fence standards' is ambiguous since it
does not clearly indicate a defined threshold where a landscape accent becomes a
continuous wall or fence and would be subject to those regulations."
The definition of "continuous," as provided by the appellant is, "marked by uninterrupted
extension in space, time, or sequence."
The appellant asserts that "The trellis of the structure has two gaps-interruptions-that are
approximately 4' wide and align along the north-south axis, as shown in Figure 3 (see
Supporting Information), thus it is not continuous." Staff notes that the structure is
connected together across the top of the "gap" and the "gap" is only on two sides of the
enclosure.
The appellant's full appeal is included as part of the record for this item.
DETERMINATION BY THE ZONING BOARD OF ADJUSTMENT:
The Zoning Board of Adjustment is authorized to consider an appeal of an administrative
decision per 414.12 of the Code of Iowa to determine if there was an error. The appeal
process is not an exception or variance process, it is an interpretation of zoning
standards that apply uniformly across the City. The Board must determine there was
an error in the interpretation to grant the appeal from a decision of the Planning Director
that the unroofed enclosing structure at 3207 Oakland Street is a "fence" per Section
29.201(74), and that the fence exceeds the maximum height allowed per Section
29.408(2)(c)(i). At issue is not the appropriateness or adequacy of the standards,
only if staff made an incorrect interpretation.
ALTERNATIVES:
1. The Zoning Board of Adjustment can find that the Planning Director correctly
interpreted the Ames Municipal Code that the unroofed enclosing structure at 3207
Oakland Street is a fence and that the fence exceeds the maximum height allowed
for a fence in the front yard and front yard setback.
2. The Zoning Board of Adjustment can find that the Planning Director incorrectly
determined that the unroofed enclosing structure at 3207 Oakland Street is a fence.
With the Board's determination of the appropriate zoning standard, staff would then
apply it to this property and others in the City.
3. The Zoning Board of Adjustment can table this appeal and request additional
information from City staff or the appellant.
5
STAFF COMMENTS:
The appellant asserts that the structure constructed in the front yard is a landscape accent
under Sec. 29.402(2)(c)(viii) and that the purpose of the structure is to function as a trellis
for the raised bed vegetable garden to support plant growth for climbing plants.
Furthermore, the appellant asserts that the structure is not continuous and therefore not
limited to fence heights.
The full projection exception language Section 29.402(2)(c)(viii) was modified at the end
of 2020; at which time, the language originally referenced structures such as arbors. Text
changes were written to clarify that certain features previously permitted to project fully
into setbacks without limitation were not appropriate within setbacks. It was at this time
that the language pertaining to "having the effect of creating a continuous wall that does
not meet fence standards" was added to address the potential abuse of the allowed
landscape accent projections.
Staff views the structure in its totality to enclose a defined area as a fence, it is not stand-
alone trellises as landscape accents. With the appellant's interpretation it would make
defining structures that enclose areas somehow distinguishable from the basic definition
of a fence, which would be inconsistent with the intent of the Zoning Ordinance having
specific regulations for fences.
In the event that the structure is a landscape accent, it would be subject to the fence
limitations. Although "Continuous" is not defined in the Zoning Ordinance, the structure is
connected together with a horizontal element that spans each four-foot opening. In its
totality the structure has the effect of being a fence, even if there were to be small gaps
between components of the structure and is therefore subject to the landscape accent
qualification of fence height standards for the front yard regardless of what the structure
is defined as.
Therefore, it is the recommendation of the Planning Director that the Zoning Board
of Adjustment approve Alternative #1, which is to find that the Planning Director
correctly interpreted the Ames Municipal Code that the unroofed enclosing
structure at 3207 Oakland Street is a fence and that the fence exceeds the maximum
height allowed for a fence in the front yard and front yard setback.
6
Attachment A — Location Map
i
r.
1,207 Oakland St.
W
r �
r
- Location Map N
3207 Oakland Street
- .
- �F--t
9�
7
Attachment B - Photos
ARM
^■■y��s ®orrrr a -y � — —
x
r►'�h,,. m.'i e r !�..A4 //■:?1 �En■��--�.f ,.I�'^ r� r-.>•-�,nr--�� 11
.. mi'cr■aal .r
V T
'O _
rr
■■ ii:i-n
��, ,�_�„� JET _a_ � 4 �y1a�e9'��r ��f rs�.®Y�r■'S6 It
g,
ink
Attachment C — Email from Appellant
Anderson, Ray
From: Grant Thompson <grantlthompson@gmail.com>
Sent: Friday,September 2,2022 2:33 PM
To: Anderson,Ray
Cc: Sahlstrom, Eloise
Subject: Notice of Violation 3207 Oakland- Front Yard Fence Height
[External Email]
Good afternoon Mr.Anderson,
I received your letter regarding our front yard fence being in violation of the city code regarding fence location and
height.I called the city offices on the afternoon of Friday,September 2 about 2pm and was told you were out of the day.
I then spoke to Eloise,who I've copied on this email.
Prior to starting this project,I did visit the city website seeking a fence permit and seeing that there is no
required permit and there is no direction pointing residents to the city code for such regulations,therefore I didn't see
an obvious issue to proceed.
I purposely located my project well back(10-12')from the right of way and intend to apply for the Ames WaterSmart
Landscaping Rebate to remove turfgrass in front of the structure to soften the visual impact.Similarly,by the choice of
materials,style,alignment with the house and property,I've gone to extensive means to have a nice vegetable garden
space in keeping with the neighborhood character.Given the tree cover of the neighborhood and exceedingly strong
deer pressure this is why I sought to locate the garden where I did and at the height I did. I have received very positive
comments from neighbors who think it looks good and are glad to see a vegetable garden being constructed.I also find
that growing our own food is in keeping with the city's sustainability goals.
I wish to seek a resolution to this issue,given that I did look at the city website and established that there is no fence
permit and there is no directive there about fence height and location or a"look here before you build"pointing to the
city code.Had there been a fence permit required and/or clear language directing someone to the city code,this would
not be an issue.Clearly from my perspective,given the time and financial investment in what I have built,I'm reluctant
to remove it.
My family will be out of the country from Sept.9-20,2022.1 will work with the city to explore a resolution to this issue,
but ask for timelines for discussion and remedy work with our travel schedule.
I have successfully brought issues before the City Council(re:407 Pearson and worked with City Planner Benjamin
Campbell on detached garage reconstruction). I am willing to take this issue to Council if needed at least for a hearing if
needed given the lack of clear direction on the city website.
Thank you for your time and consideration in this matter.
Respectfully,
Grant Thompson
Grant L.Thompson
515-710-8993
1
9
Attachment D — Notice of Violation (Page 1)
CITY OF
Ames
Smart Choice
September 1, 2022
Grant and Thressa Thompson
3207 Oakland Street
Ames IA 50014-3517
RE: Notice of Violation at 3207 Oakland Street
The City of Ames is responsible to assure that all buildings and properties are
maintained in compliance with public health and safety standards. One way we
accomplish this is through a process of building and property inspections. The City of
Ames encourages owner compliance with community standards.
I viewed conditions at your property on August 31, 2022. At the time of my inspection, I
noted that the height of the fence in the front yard exceeds the maximum height
permitted for fences in front yard setbacks and yards, and the height of fences in
setbacks abutting a street right-of-way. The definition of a"fence" in Section 29.201(74)
of the Ames Municipal Code is as follows:
Section 29.201.Definitions.
(74)Fence means an unroofed barrier or unroofed enclosing structure, including retaining
walls.
Sections 29.408(2)(c)(i) and 29.498(2)(c)(ii) of the Ames Municipal Code identify, in
bold type,the applicable provisions that constitute the violation:
Section 29.408(2)(c)Fences.
(c)Location and Height.
(i)Height in Front Setbacks& Yards. The maximum height offences in front
setbacks and front yards is four(4)feet.
(iii)Height in Setbacks Abutting Rights-of-way. The maximum height offences in
any setback abutting a street right-of-way is four(4)feet,except that up to six(6)
feet offence 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;and
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
Planning and Housing Department 515.239.5400 m.i, 515 Clark Ave.P.O.Box 811
515.239.5404 f— Ames,IA 50010
www.CitvotAmes.ora
10
Attachment D — Notice of Violation (Page 2)
consisting of one landscape tree for eve?y 50 lineal feet and two high or
three low shrubs for every ten lineal feet of area to be planted.
Corrective Action: To retain a fence in the front yard, the fence must be lowered to a
maximum height of four(4)feet in compliance with the Municipal Code.
Please respond by September 15, 2022, with a plan that includes actions that will be
taken, and timing for those actions, to bring the fence into compliance with the
requirements of the Municipal Code,as described in this letter.
I hope to work with you to resolve this issue without the use of further enforcement
action such as municipal infraction citations. If you have any questions or concerns
about this matter, please contact me at 515-239-5400.
Respectfully,
�RayD.Anderson
Planner
cc: Matt Stern, Community Code Liaison, Inspections Division
11
Attachment E — Email to Appellant Regarding Appeal
Anderson, Ray
From: Diekmann,Kelly
Sent: _Monday,September 26,2022 4:32 PM__
To: Grant Thompson
Cc: Anderson,Ray
Subject: RE:Notice of Violation 3207 Oakland -Schedule a Meeting
Hi Grant, below is a link to the application form for an Appeal of the Decision of the Zoning
Enforcement Officer. Return the application and $75 fee to the Planning and Housing
Department by Wednesday September 281h to go to the Zoning Board of Adjustment on
October 12th. Otherwise please file by October 121h to go to the Zoning Board of Adjustment
on October 261h. If you want to email the materials back to planning@cityofames.org and
have payment by credit card we can do that. If you want to drop off in person that works to.
https://www.cityofames.org/home/showpublisheddocument/57597/637321321016700000
Your relevant section for a Landscape Accent is section 29.402 (2)(c) SETBACKS and for fence
heights is it is Section 29.408 (2) FENCES.
The question of the appeal is about the standard itself applied by staff, it is broadly about the
standard not a unique decision related to your property.
While you are working on submitting the appeal described in this email, the notice of violation
is stayed.
Let Ray know if you have further questions about the appeal.
Kelly Diekmann
Planning and Housing Director
515.239.5400-main] 515.239.5181 direct 1515.239.5404-fax
kelly.diekmann@cityofames.org I City Hall,515 Clark Avenue I Ames, IA 50010
www.CityofAmes.or I -Caring People-Quality Programs-Exceptional Service
CITY OF
AmeS..
12