2003-0178 - Appeal of a decision by the Director of Community Development approving a Miscellaneous Plan Permit for a two and three-foot tall solid wood fence in the required front yard. The property is located at 311 Orchard Avenue in an R-0 (Low-Density Residential) Zoning District. (APN: 204-31-021)

Erin Walters, Project Planner, presented the staff report. She reported that the appellant expressed concerns with the solid wood fence design and not so much concern about the height. She summarized the proposed fence, height and design. She noted that the fence meets the vision triangle requirement, Single Family Design Guidelines and that safety is not being compromised with the proposed fence. She further noted that staff was unable to mediate between the applicant and appellant and offered mediation services but they declined. Staff reported that five letters in support of the appeal were received which were provided to the Commission at the beginning of the public hearing. Staff was able to make the required Findings and recommended denying the appeal and upholding the decision of the Director of Community Development in approving the Miscellaneous Plan Permit.

Comm. Swegles asked if staff conducted a site visit and whether the proposed fence would be constructed right on the driveway. Staff responded that a site visit was conducted and that the fence would be constructed on the right side yard of the driveway and directed the Commission to look at the photographs on Attachment 3. She added that the fence would be constructed six inches from the existing wire fence.

Comm. Swegles then commented that the proposed fence would be right against the existing gate. Staff said yes and the details would have to be worked out with the applicant to ensure that it would tie in with the existing fence and deferred further details of the plan to the applicant.

Vice Chair Babcock asked staff what is the height of the existing wire fence. Staff responded that the fence is three feet high and was incorrectly stated in the staff report and the proposed fence would remain three feet all the way to the rear fence.

Gregory Missman, appellant, stated that he would like to see a new fence, however, he is opposed to the approved solid fence design. He noted that he owns the existing wire fence and has been working with the applicant for fence replacement. He stated that solid fences become a catch-all for a lot of stuff and dirt and if fences are not maintained they look ugly. He presented photographs of unacceptable looking fences. He also showed photographs of varying percent of wood fence designs with 5%, 15%, 35% and 50% fence that he finds acceptable. He has no problem with the height of the fence but is mostly concerned with the solid fence design.

Comm. Moylan commented that his appeal letter indicated safety concerns but his oral presentation focused on the aesthetics of the fence rather than safety. The appellant responded that he could work with the applicant on the height of the fence to address his safety concerns and added that he is more interested on having a nicer looking fence.

Comm. Moylan then asked if he still feel that the fence is unsafe. The appellant responded that there could still be a safety issue.

Comm. Simons asked for clarification of the height of the existing fence. Staff responded that the existing fence is three feet high and the proposed fence is three feet and two feet high.

Dave Rodriguez, applicant, stated that he tried to coordinate the installation of the fence with the appellant but was unable to achieve a compromise. He stated that the fence will beautify the neighborhood, which would be treated and maintained and the driveway would be re-paved. He added that he is willing to compromise with the appellant and could agree with the two-foot fence. He added that the safety issue is the appellant's truck since it blocks certain amount of vision of traffic and pedestrians. He concluded that overall the fence would enhance the neighborhood.

Comm. Swegles asked Mr. Rodriguez if the six inches from the existing wire fence would put the proposed fence onto his driveway. Mr. Rodriguez responded yes and that it could be anchored to tie in with the existing rear fence that would look nice.

Comm. Moylan asked Mr. Rodriguez why he wanted to put another fence since there was already an existing fence. Mr. Rodriguez responded that a wood fence would look nicer.

Comm. Moylan commented that it would be redundant to have two abutting fences. Mr. Rodriguez responded that the wood fence would help diffuse the exhaust from the appellant's truck.

Mr. Missman commented that he would like to replace the existing wire fence and split the cost and the lot line as it would look nicer to have only one fence. However, only if there is a compromise with the design of the fence.

Comm. Moylan confirmed with the appellant whether he is willing to split the cost to have a new fence provided that the design meets his approval. Mr. Missman responded yes.

Comm. Lee asked Mr. Missman to clarify splitting the cost. Mr. Missman responded that he would split the cost of the fence and to have the fence constructed between the two property lines.

Comm. Chu suggested splitting the design of the fence with a solid fence and partially open fence. Mr. Missman responded that the suggested design could work.

Comm. Swegles asked the appellant if he is aware of Project Sentinel, an agency that provides mediation services. Mr. Missman responded yes. However, he expressed his concerns with the proposed fence encroaching on his property and felt that the agency would not be able to resolve the issue.

Mr. Rodriguez commented that he hopes that the Commission could assist in the issue rather than go through Project Sentinel and also to assist in determining the legal property lines and conducting the measurements.

Comm. Swegles asked the applicant if he would be receptive to the suggestion of the appellant if the fence would end up to be on the appellant's property. Mr. Rodriguez responded yes.

Comm. Chu asked the appellant if he is amenable to have split fence design. Mr. Missman responded yes provided that the design would look nice.

Comm. Swegles asked staff to clarify the property line from where the existing fence is. Ms. Ryan responded that staff does not check the property lines as it could be expensive and that reviews are made based on the information provided by the applicant. She added that the City does not get involved in this private matter.

Comm. Moylan asked staff that since the permit has been issued what is the recourse if it turns out that it is in the appellant's property. Ms. Ryan responded that permits are issued to property owners and if it turned out that it belongs to the adjacent property, then the applicant cannot build on that property without a permission from the property owner.

Comm. Satterlee asked staff where should the toters be located. Ms. Ryan responded that before and after the day of pickup the toters are allowed at the street for pickup. However, toters should otherwise be screened on sites. She added that if there is any code violation concerns, the public could let Neighborhood Preservation know.

Comm. Swegles asked about the photographs on Attachment 5 that appears to exceed the allowable height limit and whether the fence is legal non-conforming. Staff responded that she was unable to determine when the fence was approved. Ms. Ryan added that fence ordinance has been modified several times and could be difficult to ascertain conformance.

Comm. Swegles asked if Neighborhood Preservation could assist on these concerns. Ms. Ryan responded that she would ask them to look into it.

Vice Chair Babcock stated that she was able to make the required findings. She commented that the fence should be built between the property line. She suggested that the applicant may want to consider a three-foot lattice fence.

Comm. Satterlee expressed her dismay at using the time to review a fence permit, which could have been accomplished by working on a compromise between the two parties. She commented that the three-foot fence and a two-foot fence would be more attractive and hope that something could be worked out.

Comm. Chu offered a friendly amendment to require either a solid fence or open fence if the parties could come to an agreement.

Chair Simons asked staff if this condition would be necessary. Ms. Ryan responded that if there is a new design, then the applicant could apply for another Miscellaneous Plan Permit. Comm. Chu withdrew his amendment.

Comm. Moylan concurred with his fellow Commissioners but disagreed with Comm. Satterlee about the hearing being unproductive for considering a fence permit. He stated that he would rather see the parties come up with a compromise. He further stated that the design meets the Single Family Design Guidelines, however, there are some conflicts with the General Plan, and therefore was unable to make the required findings. He suggested that it would be best for both parties to come up with a compromise.

Comm. Swegles offered a friendly amendment that if it is determined that the fence location belongs to the adjacent property to void the permit. Vice Chair Babcock commented that the fence has to be built right on the property line of the applicant and the condition would not be necessary. The maker and the second did not accept the amendment.

Comm. Lee stated that, from his personal experience, it is best that both parties find a compromise. He was disappointed that both parties refused to work with a mediator to solve their issues. He encouraged both parties to dialogue and work out the issues.

Chair Simons did not support the appeal and encouraged the applicant to work with the appellant. He felt that the stronger issue is safety and suggested that both parties work together to address this concern.

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