Municipal Services Committee Vote 3-1 To Approve Terrace Occupancy Permit For Fence In Public Right-Of-Way

The Municipal Services Committee met 05/22/2023. One of the items they took up was a request from a resident under the recently updated Street Terrace Policy for a Terrace Occupancy Permit. Under the updated Street Terrace Policy guidelines, residents have the option to install fences around the terrace in front of their property if they apply for a terrace occupancy permit, provide proof of insurance, and pay an annual fee of $40, and staff does not identify any safety issues with a fence being located in that area. This is the first terrace occupancy permit for a fence to be brought forward since the Common Council voted in November 2022 to update the policy.

The committee voted 3-1 to approve the terrace occupancy permit, with Alderperson William Siebers casting the lone nay vote.

I’ve prepared a complete transcript of the discussion for download.

The Street Terrace Policy was updated with the ostensible aim of providing residents the opportunity to plant gardens, particularly vegetable gardens, on terraces. This application, however, did not appear to be motivated by the desire to protect a garden. Rather, it was brought forward to protect a non-conforming fence that had received a complaint against it.

This fence seems to be part of an ongoing dispute between neighbors. Last week, the Board of Zoning Appeals voted on a request for a variance related to the portion of the fence that was on private property. Unfortunately, there is no video or audio of that meeting, but the application for the zoning variance indicates that JoAnn, the applicant, has a restraining order against her neighbor who she views as being crazy. She indicates that he shoots gravel over the fence between their yards, pelting the siding on her house. The Board of Zoning Appeals specifically listened to her request to maintain a 1-foot lattice on top of the fence between their properties. The addition of the lattice caused the fence to be 7 feet tall, which was 1 foot higher than allowed under city code. Because there is no recording of the meeting, I don’t know what the arguments for the variance were, but whatever they were, they seem to have been successful, because the board voted 4-0 to grant the waiver.

The fence ran down between the two properties, dropped down to three feet in height twenty or so feet back from the property line, and ended a few feet back from the curb. There were not any sidewalks along that street, and, apparently, a portion of the fence ran into the public right-of-way (where a sidewalk would be if there was a sidewalk), so a terrace occupancy permit was necessary in order to maintain that section of the last foot or two of the fence instead of taking it down. JoAnn did not appear at the Municipal Services Committee, but in her application to the Board of Zoning Appeals, she stated “2 fence companies put the fence there for 34 years without a problem.”

Regardless of whether the fence was placed by fence installation companies, it did encroach into the public right-of-way. Per Director of Public Works Danielle Block, “[JoAnn] desires to keep it where it’s placed. So the avenue for that is the terrace occupancy permit and approval by the committee and payment of the annual terrace permit fee.”

Alderperson Sheri Hartzheim asked about the requirement that a property owner provide proof of insurance. Director Block responded, “In lieu of providing the certificate of insurance, they could also sign a waiver accepting and disclosing that they do have insurance to cover the any liability of that fence within the right of way. So she has signed that waiver and we have that on file in our office.”

Director Block also said that the Public Works staff and the Inspections staff did not have any concerns about this fence being in the right-of-way.

The committee voted 3-1 to approve the terrace occupancy permit with Alderperson Siebers voting against it. He did not, however, speak or give any indication why he chose to vote no.

[I thought it was pretty interesting to see how the updates to the Street Terrace Policy are working in practice. Based on the discussion at the time, the purpose of the updates was to facilitate gardening in the terrace. I would be surprised if any of the alderpersons had envisioned it as a way for property owners to bring non-conforming fences into compliance. I remember fences in the right-of-way coming up as an issue during a Board of Zoning Appeals meeting back in 2021. At the time, Board of Zoning Appeals Chairman Paul McCann actually made a formal complaint for a fence based on what he saw on Google Street View. Back in 2021, Inspections Supervisor Kurt Craanen mentioned getting a street occupancy permit as being the only way to allow a fence to occupy the right-of-way, but now it looks like a terrace occupancy permit is a new tool to maintain fences that don’t meeting municipal code.]

View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=1104289&GUID=0D7AF700-CCC5-445A-A102-C24D0C2DEBB3