The Board of Zoning Appeals met 05/19/2025. They took up one variance request which pertained to a fence along the front property line of a house on Memorial Drive. The fence is 6 feet tall, but the city zoning ordinance limits fences along the front yard property line to no more than 3 feet.
The current owner purchased the home in 2022 from the bank as a foreclosure. The 6 foot tall fence had been in place since the 90s and was in disrepair and covered with foliage. The new homeowner cleared away the foliage and replaced the fence with a fence of a similar kind in the same location. After the work was completed somebody who did not seem to be a neighbor called in a complaint claiming the fence caused visibility issue.
As a result, the owner applied for a variance and indicated that the variance was needed because there are registered sex offenders living in the area and drug use and alcohol consumption occurs in the area, all of which necessitate a high fence in order to shield children. Additionally, the lot is a corner lot, so it has two front yard property lines and the layout of the yard in relation to the house and garage limits their ability to have a usable yard an also erect a 6-foot fence. Finally, it was noted that the property was originally built in the 1880s well before the current zoning standards were in place.
The board ended up voting in favor of the variance, taking the view that each of the issues by themselves did not necessarily warrant a variance but that taken as a whole they did rise to the level of needing a variance.
I’ve prepared a transcript of the discussion for download:
A permit for the original fence had been obtained in 1991; however, even at the time, the maximum height allowed had only been 3 feet, but the owner in 1991 had constructed it as a 6-foot tall fence despite the limitations listed on the permit.
The fence in question used to be a jungle. Prior to the new owners, Michael and Jenilee, buying the property and fixing it up, the fence was covered with dense foliage. I myself can attest that it was like that all the way back in the 90s 30 years ago. I used to walk by it frequently when I was a teenager, and one summer a particularly territorial bird built its nest in the foliage and would swoop aggressively around the heads of pedestrians who walked past on the sidewalk.
Lance, their next door neighbor on Third Street appeared before the board and spoke in favor of granting a variance and allowing them to keep the fence. He said that the previous owner had had health issues and let the house fall into disrepair and it was eventually taken over by the bank. Additionally, the previous owner’s son had a drug problem and had been living in the house. Unsavory people had gathered on that property, one of whom tried to break into Lance’s house.
Lance felt that the work Michael and Jenilee had done had improved the property to the point that “it’s really a jewel in our neighborhood now.” He did not know why anyone would complain about the fence now that it looked good when they had never complained about it before when it looked back and when visibility issues were worse. He did not think the fence caused visibility issues. He told the board, “They’re great neighbors, and I don’t know why anybody would complain about it.”
Michael explained to the board that he and his wife had bought the property after it had been in foreclosure. The fence in its current height and location had been in place when they bought it. It was rotting and falling down in many places, so they had replaced it. They had not realized they needed to get a permit to do that, believing instead that they were performing maintenance and safety repairs, not constructing a new structure. “Our intent was to improve safety, visibility, and appearance of the neighborhood, not to evade code. Now we find ourselves penalized for not moving the fence or enlarging it, but preserving what already existed and in doing so, made it more visible by clearing overgrown foliage. The irony is that only after making the area safer and more attractive that it became visible enough for a complaint to be raised.”
Inspections Supervisor Kurt Craanen was asked by the board about the complaint. He said his department received a vision obstruction complaint, and he did not believe the complaint had come from a neighbor.
Obviously, Michael’s neighbor on one side had appeared and spoken affirmatively in favor of the fence. Additionally, Michael told the board that they had a relationship with their neighbors on the other side. He had talked with them when they were replacing the fence, and the complaint had not come from them.
The board members seemed a little baffled by the complaint because the fence did not seem to be causing vision issues. Indeed in looking at the before and after pictures, the current situation seemed to be a marked improvement in terms of visibility as compared to the previous situation. Additionally, the board specifically discussed whether or not the fence would cause visibility issues for the house directly toward the north. It was determined that it was not an issue because the lanes of traffic closest to the house traveled north to south so a driver would be looking northward not southward where the fence was. Additionally, it seemed that the fence was far enough away from the neighbor’s driveway that it was not blocking the vision corner regardless of the way the traffic was coming.
Board member Karen Cain felt that it was unfortunate that the complainant had not attended the meeting so the board could not hear or address their concerns.
The board talked with Michael about why the fence could not be moved so that it could meet the setback requirements for a 6-foot fence or why it could not be shorted to 3-feet to meet the rules for front-yard fences.
Regarding moving the fence back so that it met setback requirements, Michael said, “[T]he impact on our usable yard is not a minor inconvenience, not a minor convenience issue. It is a material loss of function. Our home was built in the mid-1800s and is situated in such a way that only one corner of our lot is truly usable for outdoor family space. Losing 30% of that space effectively means losing the ability to use our yard safely and privately. That goes beyond personal preference and directly impacts reasonable use of the property. We are not requesting an increase in property use, only the ability to continue using our yard as it has been used for decades. This is not a request for enhanced value or luxury but for continuity and safety.”
Regarding lowering the fence to 3-feet so that it met the rules for front-yard fences, he said, “[W]hile we understand that the general neighborhood conditions are not by themselves a basis for variance, we respectfully submit that safety concerns when directly impacting the use of the property do contribute to a legitimate hardship. Our lot is directly adjacent to a high traffic area and located in a part of the city with documented crime and registered sex offenders. This creates a unique security need compared to other nearby residential lots not bordering a main traffic way. Our goal was not simply to shield ourselves from general crime, but to create a secure private space for our family and children, especially given the sidewalk’s direct adjacency to the home’s only usable yard space.”
Additionally, there was the possibility that, given the high traffic and noise on Memorial Drive and the layout of the house, if the fence was lowered it would result in headlights from vehicles shining into bedrooms at night.
Board member Scott Engstrom said, “[O]ne thing I keep going back to is that this is that this is not self-created in the sense that there was a pre-existing fence, a permit that was granted, and then a fence that was built not consistent with that permit, and then there was a transaction where they subsequently purchased it.
Board member Kelly Sperl noted, “And for 30 plus years, there wasn’t any complaints or issues. And I think some of the overgrowth in the trees and the shrubs probably caused more of a scenario than the projection of the fence.”
Board member Cain also pointed out that the crime in the area was not a self-induced situation.
Board member Michael Babbitts said, “I think there—there’s kind of a myriad of hardship that we’re seeing here that taken alone does not constitute hardship, but taken together starts to tell a story. It’s telling to me that this fence existed as constructed today or reconstructed today for 30 years without complaint, and it is only after becoming visible that it’s caused complaint.”
The board eventually voted unanimously in favor of approving the variance request.
[I really think the Common Council should reevaluate fence rules and open up an avenue for people to legally put taller fences in their front yards. Variances for the 3-foot front yard fence rule is a recurring item that comes before the Board of Zoning Appeals, which suggests that society is moving away from the social mores of yesteryear and wants to have greater freedom to maintain their privacy on their own property.]
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=1308717&GUID=EB88AC85-2514-407E-A87E-33F738345E7E
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