The Board of Zoning Appeals met 12/18/2023. One of the variance requests they took up was a request from a property owner on Badger Avenue to maintain a 4-foot-tall fence that was along the front yard property line. The local zoning ordinance limits front yard fences to no more than 3 feet in height within 20 feet of the property line.
Colleen, the home-owner, had purchased the property around 15 years ago. The fence had been in place at the time of purchase, and, at the time, had actually been 6 feet tall, but she cut it down to 4 feet. The property was an irregular triangular shape with two frontages which were both viewed as front yards under city code but one of which was functionally used as a backyard. She had run a licensed daycare out of her home for 33 years, 15 of them in her current location, and state law requires daycare fences to be at least 4 feet in height.
This was the most straightforward of the three variances the board took up, and they ended up unanimously voting to approve the variance request.
I’ve prepared a transcript of the discussion for download:
This homeowner and licensed in-home daycare operator came before the Municipal Services Committee earlier this year seeking a terrace occupancy permit for this same fence. There were no sidewalks on the street and part of the fence was on her property while part of it was on the public right-of-way which necessitated the need for an annual terrace occupancy permit. The Municipal Services Committee ended up recommending approval of the permit, and the Common Council went on to approve that recommendation.
That previous issue brought to light the current issue before the Board of Zoning Appeals that the fence was too tall in its current location. State law required that she have a 4-foot-tall fence around the outdoor play area, but there was no way to locate a fence that was 4 feet tall and also met the 20-foot setback required by city code and also allowed enough of the yard to be fenced in to meet daycare space requirements. [In fact, a brief look at the lot on the city’s property viewer suggests that sections of the house itself are legally non-conforming and are closer than 20 feet to the front property line than.] The end result was that if she was not granted the variance, she would not be able to maintain the fence, she would not be able to meet the requirements of her childcare license, and she would have to close her business.
Board member Scott Engstrom made a motion to approve the variance, explaining, “This is not something where the applicant created the hardship. This is something that’s been ongoing. Applicant indicated that she’s run the same type of business for 33 years, 15 of which have been at this location. And I think that overarching regulatory requirement of having that higher fence actually serves the public interest. And I think that a literal application of this code section would result in practical difficulty for the property owner.”
Board Chairman Paul McCann added, “[T]his this is a great use for that property, and it’s a very irregular shaped property with two front yards and, you know, this sort of […] triangular shape space. So, I don’t think there’s any other way that you could enjoy this property without some sort of exception.”
The board voted unanimously to approve the variance.
[I wonder if there would be some value in the Common Council reviewing the city’s regulations on fence heights. I see a lot of houses that have fences along the front yard property line that are more than 3 feet in height. 3-foot-tall fences seem inadequately short and are easily stepped over by anyone who is 5’8” or taller, maybe even 5’6”, and clearly the State does not even think 3 feet is suitable to even keep children in the yard. Realistically, 3 feet is not even necessarily a good height to keep dogs contained.
Beyond that, there are numerous properties within the city that have what city code considers to be two front yards, but, in practice, one of those yards is going to be more functionally viewed as a back yard. I don’t think it’s unreasonable for the owners of those properties to be able to maintain a degree of privacy that is normal for a backyard, and that might require a fence that’s even taller than 4 feet. Indeed, these people come before the Board of Zoning Appeals fairly regularly seeking variances to build taller fences closer to the property line than current city code allows, although their requests are not always granted.
Safety issues related to fences blocking lines-of-sight seems to be the one practical reason that has ever been given as to why the city’s code regarding front yard fences is what it is, but I question how much of an issue that really is. We have alleys and tall buildings all over Downtown Appleton that would seem to cause much more line-of-sight issues than a front yard fence, and yet our city code still allows buildings in the downtown business district to be built right up against the property line with no setback whatsoever.
So, for what it’s worth, it seems to me that Appleton could do with a reevaluation of the city’s zoning ordinance pertaining to the height front yard fences.]
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=1139601&GUID=1640BAC8-6BCC-4A7F-AABD-43DCB9DFCD1B
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