Homeowner Denied Variance By Board Of Zoning Appeals To Erect 5 Foot Tall Fence

The Board of Zoning Appeals met 05/17/2021 and took up the issue of Matt’s fence application.

Per the agenda, “The applicant proposes to erect a five (5) foot fence in the front yard. Section 23-44(a)(1)(a) of the Zoning Ordinance limits fence height to three (3) feet in the required front yard.”

(You can view Appleton’s Municipal Code here: https://www.appleton.org/government/municipal-code)

Before we get started, here are screenshots from the municipal code showing the fence code, yard definitions, and set backs limits for properties.

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Here also is the memo from Inspections Supervisor Kurt Craanen outlining the reasons to deny the variance request.

Chairman McCann explained at the beginning of the meeting that Matt would be asked to give background on the case and that it was important for the Board to hear what hardship he would experience if not granted the variance. I would take 4 affirmative votes to grant the variance.

Matt said that during the application process he had learned that his lot is a “through lot” which is viewed as having two front yards. It’s an older neighborhood and, like many of the nearby houses, he has access to his garage from the back street which is not his street address. His position was that his backyard is relatively small and not being able to erect a fence would prevent him from enjoying the backyard fully which would result in a hardship. [Toward the end of the meeting, but not during his opening statements, he also mentioned that he has dogs and a 3 foot fence is not much of a barrier. He has also had patio furniture stolen in the past and, again, didn’t feel that a 3 foot fence was much of a deterrent to thieves.]

He said he read the ordinance and was mindful of not wanting to change the character of the neighborhood. He wanted to erect a five foot tall ornamental, open metal fence that would not obscure people’s views. He said that his neighbor has a 6 foot tall privacy fence right off the lot line. But he was proposing putting his fence 6 feet off of the sidewalk which would be less than what their neighbor had but still provide enough space to actually enjoy the yard. He said that a number of the houses on that court have through lots with fences that do what he was proposing.

Chairman McCann was a little surprised to hear that there was a 6 foot tall privacy fence right up against the sidewalk and asked Inspections Supervisor Kurt Craanen if there was a permit for that.

Inspector Craanen confirmed that there was. He thought that people came in for the permit and said it was for a backyard and the inspector just didn’t look closely enough to catch it.

The people in the meeting were looking at the neighborhood via Google’s Street View and possibly also on the city’s GIS map. Matt pointed out a 4 foot high fence and a fence that dropped down from 6 feet to something smaller. It sounded like he mentioned something about a neighbor with a shed.

Matt reiterated that he wanted a 5 foot, three rail, ornamental metal fence with 6 inches between the rails. He wanted to have a fence that was in keeping with the character of the neighborhood. He said there are at least five homes on through lots off the court that have fences higher than three feet.

There was some discussion of exactly how Matt would line his fence up and connect it to the neighbor’s fence.

Chairman McCann then considered the layout of the neighborhood. He said there were probably 20 through lots with two front yards in the area, and he asked Inspector Craanen to drive around the block again on Google Street View. He noted that the street that Matt considers to be his “front” yard has no curb, gutter, or sidewalks. It’s really just a lane that goes past those houses.

Inspector Craanen pointed out a couple fences that didn’t appear to meet code.

Chairman McCann said that one of those fences looked like it was on the public right of way right where a sidewalk would be if there were a sidewalk. He asked Inspector Craanen to check if there was a permit for that fence.

Inspector Craanen confirmed that the fence was in the public right of way, probably by looking at the aerial view on the city’s GIS map. He also looked up whether there was a permit. He said that the permit records he had went back to 1985 and he couldn’t find anything. He said the fence didn’t appear to predate 1985, so it didn’t look like they got a permit for the fence. He said the property should actually get a street occupancy permit for their fence. He said that that illustrated the point he made in his memo that the fence discrepancies in the neighborhood were the result of a combination of people not getting permits and permits being issued in error.

Chairman McCann asked if Inspector Craanen needed a complaint to initiate an investigation to which he answered yes.

Chairman McCann said that he was complaining, for the record. There were chuckles all around.

There was a little more discussion about a fence they could see and how tall it was and what was going on in the neighborhood. It was a little hard to follow since the people watching the video couldn’t see what they were looking at.

Chairman McCann summed the layout of the neighborhood up by saying that they understood there was some variability there. He also said that the Hycrest side of the lots didn’t even look like a street. It wasn’t developed. He then confirmed that Matt intended to put the fence on the Douglas Street side which has sidewalks and is more developed.

Chairman McCann pointed out another property with a fence over the lot line and Matt said that that property owner had actually built a shed there.

Matt said that he had two neighbors tell him they support his plans to fence his yard and that both of those property owners got variances to build sheds in their front yard.

Inspector Craanen said a variance wasn’t needed to put a shed in a front yard as long as long as the setback requirements were met.

Matt said his neighbor told him he had to apply for a special variance.

Chairman McCann wondered if that neighbor had a permit for his fence.

Supervisor Craanen said he had one from 1992.

Chairman McCann thought it looked in great shape for a 30 year old fence. He asked if he had a permit for a shed.

Inspector Craanen said he did not.

Chairman McCann didn’t take that anywhere and did not lodge a formal complaint to get an investigation started as with the situation earlier.

One of the committee members said he had a question. He said the staff analysis in the memo stated that the intent of the code was to keep front yards free from obstructions and maintain the character of a residential neighborhood. He wanted to know if there was a specific section of the municipal code that referenced that intent or if it was just the generally understood intention of that section.

Inspector Craanen said the definition of “yard” said that it should be unobstructed. So he deferred to that definition of yard.

Chairman McCann said another concern was that if they granted Matt a fence permit, he would not be restricted to the type of fence he said he intended to install. Additionally, the variance would stay with the property so a future property owner would be able to replace his fence with a board on board privacy fence. He thought what Matt wanted to do sounded very acceptable and classy and would be a beneficial improvement to the neighborhood. The difficulty was the inconsistencies that are in the neighborhood. He thought it was easy to see why the guys on either side of Matt would be willing to let him put up a fence where he wanted to because they themselves had code violations.

If Matt put the fence where it would be compliant it would have to be 20 feet off the sidewalk. Chairman McCann wanted to know how deep his yard was.

Matt said that it would bisect his back yard with 20 feet on the outside of the fence and 13 feet on the inside. [I listened to this multiple times and it really sounded like he said 13 but when I looked on the city’s GIS website it looked to me like it would be 30 feet. I’m not sure if I just heard him incorrectly or if he misspoke or if I measured wrong.]

They determined that to meet the setback requirements he would end up having to line the corner of the fence up with the corner of his garage instead of having it be farther out like it was in the drawing he submitted.

Chairman McCann said that even if the garage wasn’t a full 20 feet back it was probably a moot point because in an older neighborhood you were allowed to come forward to that point because the garage had been allowed to be built there.

A committee member asked for some clarification. Matt was allowed by code to erect a 3 foot tall fence where he originally wanted to, so the issue was the difference between a 5 foot fence and a 3 foot fence. The board member was struggling with what the hardship was.

It was at this point that Matt brought up the issue of his dogs and the theft of his patio furniture which he had not mentioned either during his earlier statement or when filling out the variance questionnaire. He likened three foot tall fences to speedbumps. He said he has two off leash dogs and there is a house across Douglas Street from them with a three foot fence and a pitbull that is able to jump over that fence on a regular basis and go after other dogs and pedestrians. He wanted to create a more secure barrier for his dogs, not just from that pitbull but also so that his dogs won’t be able to get out and chase after traffic. He also said that he had had garden furniture stolen in the past and there was not much recourse because there is not much emphasis put on tracking down stolen patio furniture. That was why he wanted a 5 foot fence instead of a 3 foot fence. He also kept it lower than the maximum allowed 6 foot fence because he still wanted it to look nice and be just high enough to keep the dogs in and thieves out without looking like a prison.

Chairman McCann said the difficulty here was that simply moving the fence back by a few feet would allow him to have the fence at the height he wanted, although he did acknowledge there would be a loss of 300 square feet of grass on the inside of the fence.

Matt said that in a small lot like his 300 feet is proportionally quite a bit of square footage.

A committee member made a motion to approve the variance for the purposes of bringing it to discussion.

Board member Chris Croatt said that as a new member of the committee, he was wondering if they could consider the entirety of the neighborhood and the violations that exist within it or if they should only consider the property and the variance request before them that day. He thought they had to look only at the property on its own. There was a lot going on in the neighborhood with multiple violations which could be a reason perhaps that they could support one more violation, but he wasn’t comfortable with that. When looking solely at the property and the variance request before them, he was struggling to see the hardship.

Chairman McCann said he didn’t know what hardships were tied to any of the other fences. He had voiced a complaint earlier on the one property because he thought there needed to be an investigation into what was going on just to get things back into some order there and bring it back to what the ordinance was intended to protect. Generally, they didn’t follow the idea that “two wrongs make a right”. He said if hardships are coincidental in the neighborhood and that’s what caused some of the fences to be put where they would not comply and they have either variances or they pre-date the current permit process he could certainly understand that. However, he mentioned that he’d served on the Board of Zoning Appeals for 27 years and he had not seen that particular neighborhood come up before for fence variances. He thought the specific situation before them was a difficult situation because he thought that, without losing a significant amount of yard space, it would be possible to put up a compliant 5 foot tall fence. And if Matt wanted the larger yard space he could put up a compliant 3 foot tall fence. Each had a trade off. But he could put up a compliant fence, and there didn’t seem to be a hardship regarding that, other than that the neighbor has a 6 foot tall fence up against the lot line.

Matt said he would argue that the hardship is that a 5 foot tall fence would essentially divide the yard in half. He wasn’t arguing that he should have one because his neighbor has one, but rather that not being granted the variance would significantly limit the functionality of the backyard space.

The board members had no further discussion and voted unanimously to deny the variance request.

[I guess the phrase “beg for forgiveness not permission” is applicable here. It sounds like at least one of Matt’s neighbors may end up having to do just that.

It was always going to be a tough sell, but Matt did himself no favors by making no mention of his dogs or of the stolen patio furniture until near the end of the meeting. Back in November, a couple was able to get a variance for a 4 foot high fence specifically because of their dog.

I do agree with Matt that 3 foot tall fences are little more than speedbumps. One wonders if it would be possible to amend the city’s zoning codes to allow for taller fences in the front yard so long as they meet guidelines for visibility such as 60% or 70% of the square footage of the face of a fence that extends above 3 feet must be empty. It doesn’t seem unreasonable to try to give residents more freedom in what they can do with their own property.]

View full meeting details here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=860799&GUID=E091F170-51BC-4BD8-BD62-372062E43C26&Options=info|&Search=