2004-0477 – Kathey Fyke [Appellant] Lidia Barouh[Applicant]:  Appeal of a decision by the Administrative Hearing Officer approving a Use Permit to allow a 7-foot high fence in the side yard without a signed neighbor agreement.  The property is located at 893 Rattan Terrace in an R-0/PD (Low Density Residential/Planned Development) Zoning District.  (APN: 213-56-022) DO

Diana O’Dell, Project Planner, presented the staff report. She summarized the history of the fence and that it was installed without a written agreement by the neighbor.  The neighbor appealed the decision of the Administrative Hearing Officer approving the Use Permit to the Planning Commission.  She noted that the fence was originally installed to increase the privacy.  Staff reported the fence design to be seven feet high measured from the highest adjoining grade with six feet of board on board and one foot of lattice on top.  The appellant expressed concerns about the visual impact and shading of the garden. She added that the fence is higher than the current fence and a slightly different design.  She noted that staff evaluated the fence’s visual and shadow impacts and concluded that the impacts are minimal.  She added that the additional one foot of lattice above the existing fence height does not have significant shadow impact to the garden and the design is a standard residential design typical throughout the City.  Staff noted that it has been three months since the appeal was filed and staff has been working with the appellant to provide the information the appellant is requesting.  Staff noted that because there is limited availability of both the applicant and the appellant, staff has had difficulty in finding a hearing mutually agreeable. She stated that in order to bring this application to a closure, the item was scheduled for November 8 and the appellant has been notified and is aware of this hearing and a copy of the staff report has been delivered..  Staff was able to make the required Findings and recommended denying the appeal and upholding the decision of the Administrative Hearing Officer approving the Use Permit.

Chair Moylan commented that an issue is the actual height of the fence and he asked staff whether staff actually measured the fence.  Staff responded yes and it was measured at the highest adjoining grade at seven feet.

Comm. Sulser asked staff whether it is against city policy for the appellant to be present during the measurement.  Staff responded that staff cannot invite the appellant to a private property.  She added that the purpose of the measurement is to determine the final measurement.  She noted that there were three other city staff members during this measurement. She added that there was a miscommunication between the appellant and staff. 

Comm. Simons asked staff whether it is normal that no neighbor fence agreement is obtained by the applicant to add a one foot lattice on a six-foot high fence.  Staff responded that the code requires that any fence taller than six feet measured from the highest adjoining grade requires a written neighbor agreement up to seven feet.  If the agreement is not achieved, then a Use Permit is required.  She added that it is pretty unusual to not have a written fence agreement.

Chair Moylan opened the public hearing.

The appellant was not present. 

Chair Moylan stated that he spoke to the appellant who mentioned that she will not be able to attend the hearing.

Billy Santos, on behalf of the applicant Lidia Barouh, summarized the Use Permit application for a seven foot high side yard fence. He noted that the fence is needed to provide more privacy between the adjacent property due to grade differences and elevation.  He noted that the applicant has seen the appellant looking into her private property.  Thereby, bushes were planted next to the fence providing privacy above the six-foot fence.  However, these bushes were trimmed by the appellant so severely that the plants were destroyed.  Therefore, the applicant felt the need to increase the height of the fence.  He noted that the Homeowners’ Association approved the raised planters by the appellant but caused the height anomaly.  This consequence caused the applicant to sell her property that she lived in for more than 20 years.  He concluded that the applicant feels the duty to the new property owner to provide clear authorization for the seven-foot high fence.  He urged the Commission to grant the Use Permit.

Chair Moylan closed the public hearing.

Vice Chair Hungerford commented that he had visited the site and agreed with staff that the extension on the fence has very minimal impact and that the fence has a standard design.  Therefore, the Use Permit should be granted.

Chair Moylan asked staff whether the decision of the Commission is final and could it be appealed.  Ms. Ryan responded that the decision of the Planning Commission is final unless appealed to the City Council within the 15-day appeal period and payment of the associated appeal fee.

Comm. Sulser supported the motion.  He noted that he spoke with the appellant. He commented that there appears to be a dispute of facts but feels that it is upon the appellant to prove the case supporting her position.

Ms. Ryan stated that the decision is final unless appealed to the City Council with a payment of the appeal fee within the 15-day appeal period.