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SR-400-012 (6) . - J City of Santa Monlea- City Council Report City Council Meeting: February 13, 2007 Agenda Item: -:r- -B, To: Mayor and City Council From: Eileen Fogarty, Planning & Community Development Director Subject: Introduction and First Reading of an Interim Ordinance Extension Related to Fence, Wall and Hedge Regulations and Policy Direction Concerning Future Regulatory Action Recommended Action Staff recommends that the City Council adopt the Interim Ordinance extending the existing Interim Ordinance and direct staff to prepare a revised interim ordinance based on the recommendations contained in this report. Executive Summary Interim Ordinance 2169 (CCS) regulates the height and location of fences, walls and hedges on private property. It also grandparents these structures and landscaping if established prior to a certain date. The Interim Ordinance will expire on March 31,2007 unless extended by the City Council. While generally successful, certain aspects of the Interim Ordinance should be modified for the ordinance to be more effective. Specifically: 1. the grandparenting provision, as currently implemented, diminishes the ordinance's effectiveness and the City's ability to enforce regulations; and, 2. the Objection and Registration processes are perceived as unfair and not achieving the anticipated results. - 1 - Also included in this report is information related to fence, wall and hedge heights for corner properties, including Reversed Corner and Key parcels. New fence, wall and hedge standards are proposed to address these specific situations. The recommended action identified in this report does not have any budget-related impacts. Background The City has regulated fences, walls and hedges for the past 59 years. The first fence, wall and hedge regulations were adopted in 1948 and revised several times since then. Consistently, the heights of fences, walls and hedges have been limited to 42 inches in the front yard, and six to eight feet for fences and walls in the side and rear yard. Notably, hedges were not specifically permitted in the side or rear yards until 1994. Also noteworthy is that prior ordinances included regulations that restricted the heights of fences and walls on the street side yard of corner properties and where Reversed Corner and Key parcel conditions existed. Reversed Corner and Key parcels are defined and illustrated on page 15. Over time, these Reversed Corner and Key parcel standards were removed. Recently, the City Council directed staff to evaluate and make recommendations regarding possible standards for Reversed Corner and Key parcel conditions. - 2 - Objective safety standards are known as the City's Hazardous Visual Obstruction (HVO) requirements were adopted in 1981 and last updated five years ago. These standards are frequently used in consideration of fences, walls and hedges, but apply generally to any obstruction located near the intersection of a driveway and property line. Consistent with the City Council's direction when this matter was last discussed, no changes are recommended to modify these objective safety standards. Detailed information regarding the history of fence, wall and hedge regulations, as well as code enforcement action and practices were provided to the City Council in June 2004. The milestone actions to date include the following: 1948 Regulation first adopted: 42-inches front yard and street side yards (fences, walls, hedges) 6-feet for fences and wall in side yard 1960 Modified to allow 5-foot tall fences and walls in front yard setback on Ocean Avenue properties North of Wilshire Boulevard Provision added to address accessory structures on reversed corner parcels 1981 Hazardous Visual Obstruction (HVO) safety provision added 1989 Hazardous Visual Obstruction provisions modified 8-foot fences and walls permitted on street side yards and interior side or rear yard with neighbor's consent 1994 8-foot fences, walls and hedges permitted by right in any side or rear yard 2002 Hazardous Visual Obstruction provisions modified - 3 - On July 12, 2005 the City Council adopted the current Interim Ordinance following a comprehensive public outreach process, a city-wide workshop and several public hearings before the Planning Commission and City Council. The Interim Ordinance will expire March 31, 2007. The Interim Ordinance was adopted to reconcile issues concerning fences, walls and hedges on private property and perceived impacts related to personal security, light, air, privacy, neighborhood character and aesthetics. The Interim Ordinance attempts to balance many varied competing interests. Many of the changes have worked well, including: the modification procedures, a new height methodology and a provision for ornamental structures in front yard. Other changes require further consideration. The following table highlights the key Interim Ordinance standards and their effectiveness. - 4 - ~, . INTERIM FENCE, WALL & HEDGE ORDINANCE STANDARDS i'/ " . . -. ...- '.n...... Fence & Wall Regulations Side & Rear Yard * Front Yard * Hedge Regulations Side & Rear Yard Front Yard * 8 feet 42-inches No No 12 feet (unlimited adjacent to alley) 42-inches Yes No Modification Procedures Administrative Up to 4-foot increase to side and rear yard heights No with neighbor's consent. Cost: $149 Discretionary Modify front yard or increase beyond 4 feet in height No at side and rear yard. Cost: $249 Nonconforming Fences, Walls and Hedges Grandparenting All nonconforming fences, walls and hedges Yes constructed or planted prior to August 26, 2005 may remain Registration Procedure Opportunity to self-register nonconforming hedge Yes Cost: Free Objection Procedure Opportunity to object to neighbor's nonconforming Yes fence, wall or hedge Cost: Free Objection Appeals Appeal of Objection determination Yes Cost: $222.35 Other Interim Standards Ornamental Structures in Permitted subject to size limitati08s No front yard Height Methodology Fence, wall or hedge measured from lowest adjacent No grade Hedge Definition A boundary of shrubs, bushes or trees that enclose or No divide an area (paraphrased) Front Yard Areas The area between the front property line and the No (42-inch height limit) nearest building wall or front setback line Other Issues Requiring Council Discussion Heights adjacent to street Currently, 8-feet (fence or wall) or 12-feet (hedge) Yes side yards Reversed Corner / Key See permitted heights in front, side and rear yards - Yes Parcels above Hedge Maintenance No current provision Yes * These standards were unchanged from the existing, codified provisions. The standards that work well are not addressed further in this report; however, it is recommended that they be included in any new ordinance. Those standards requiring further consideration are examined in following section. - 5 - Analysis The issues discussed in this section follow the order established in the preceding table and are not based on degrees of importance. Issues concerning the nonconforming regulations are the most difficult to assess and are arguably the most critical to resolve for this or any future ordinance to be effective. In addressing the issues it is important to keep in mind the reasons for regulating fences, walls and hedges: . To create livable, pedestrian-oriented neighborhoods . Protect the pedestrian scale and character of streets . Encourage informal neighbor interaction and, therefore, a sense of community . Preserve a neighbor's access to natural light and air . Public safety . Environmental benefits (a tall hedge can reduce natural sunlight requiring greater reliance on non-sustainable resources to bring light into a room) Hedae Heiaht Adiacent to an Allev The Interim Ordinance provides that hedges located in a side or rear yard and adjacent to an alley are not restricted in height. This provision attempts to balance private property owner's desire for increased privacy, security and noise reduction with broader community objectives. It is believed that tall hedges adjacent to an alley do not significantly impact the general welfare and, therefore, may extend to any height desired by the property owner. A question of interpretation has emerged with the implementation of this provision that requires clarification from the City Council. - 6 - The standard in question "A hedge shall not exceed 12 feet in height, except that there shall be no height limit for hedges adjacent to an alley" is unclear if the unlimited height is intended to apply to the entire area contained within a required rear yard setback adjacent to an alley, or only to those portions of a hedge immediately adjacent to an alley. If the latter is the intent, a specific standard is needed to assess adjacency, at Defining Adjacency . least in terms of a . Property Line distance from the Areas where existing side and II rear yard hedges are permitted to grow to unlimited heights alley. This is particularly necessary for a hedge that is D Required Side or Rear Yard Adjacent to Alley either parallel but offset several feet from an alley or perpendicular to the Interim Rel;!ulations: There shall be no height limit for hedges adjacent to an alley (side and rear yards) .. Adjacency can be a set distance from the property line (i.e. 5 ft) .. Adjacency can include the entire required yard setback alley. The diagram on this page illustrates these conditions. At present, it is the depth of a required rear or side yard adjacent to an alley that establishes the area where an unlimited hedge height is allowed. If this interpretation is not consistent with the City Council's intent, this provision needs to be re-articulated with a more objective definition. - 7 - Nonconforming Fences, Walls and Hedges Without question, the single most important aspect of the Interim Ordinance is how it addresses fences, walls and hedges that do not comply with permitted height limits. This is the most challenging, difficult, and controversial provision of the ordinance. While the reasons for the controversy are well known, there is not a simple or clear solution to address nonconforming fences, walls and hedges. While there are options, which will be discussed, none of the options can successfully balance all the conflicting interests with respect to nonconformity. The Interim Ordinance allows certain property owners to keep their fences, walls and/or hedges even though they may exceed the permitted heights limits established by code. This provision is commonly referred to as grandparenting. To be eligible for grandparenting, the fence, wall or hedge must have existed at the time the Interim Ordinance became effective (August 25, 2005) and it may not increase in height or otherwise become more nonconforming with the current standards. While this is not typically a problem with fences and walls, hedges continually grow and are quickly in violation of this standard. Reaistration Process Property owners were given six months to voluntarily self-register their nonconforming fences, walls and hedges to document and minimize future disputes with the City or neighbors. This voluntary effort sought to memorialize the height and location of any - 8 - nonconforming feature, which the City could then use to evaluate future complaints or other enforcement activity, This process was established in the Interim Ordinance as the Registration process, The concept behind this procedure was sound, but despite an effort to obtain consistent and reliable information through the Registration application, information submitted was frequently inconsistent, not useful and sometimes misleading. Over 900 property owners submitted a Registration application, Obiection Process In allowing a homeowner to retain a nonconforming fence, wall or hedge, the City Council thought it important to afford neighboring property owners and residents living next to such structures or landscaping the opportunity to object to its size if it could be demonstrated that there would be substantial objective quality of life impacts. This process is also established in the Interim Ordinance and is referred to as the Objection procedure. The City's Zoning Administrator was charged with rendering a decision on these applications, which were appealable to the Planning Commission. The Objection process required a complainant to demonstrate a substantial impact that would be detrimental in terms of light, shadows, air, safety or other objective quality of life impacts. Consideration would be given to the location, age, height and other related features of the nonconforming fence, wall or hedge. If granted, the height would be lowered only to the point where the documented impact would be mitigated - 9 - The City received 105 Objection applications; 28 were appealed. These appeals have been placed on hold while the Council reassesses this Objection procedure. Despite the intention of this provision to address competing interests, the Objection process has not, in many cases, served as a mechanism to achieve balance or parity. Many of the complainants have expressed dissatisfaction with the procedure as they felt it unfairly favored hedge owners. There are three main concerns with the Objection procedure: 1. It places an unrealistic expectation that the administrative process will resolve long-standing disputes; 2. The complainant is at a significant disadvantage to effect change because the threshold for demonstrating an impact is too high; and, 3. It requires an extraordinary amount of staff and Planning Commission resources. Zoninq ,Administrator as Mediator: The Objection procedure has been perceived as placing the City in the role of mediating disputes between neighbors. An expectation is created that the Zoning Administrator would resolve a property owner's right to retain a nonconforming fence, wall or hedge with the complainants desire to minimize fence, wall or hedge related-impacts. Significantly, the provision did not provide the flexibility for the Zoning Administrator to apply common sense in evaluating each Objection. Even in circumstances where a neighbor's hedge was clearly at an excessive height, it remained the complainant's burden to meet the very high standard required to - 10 - demonstrate the impact. Even with flexibility, there still needs to be objective evaluation criterion by which the fence, wall or hedge can be evaluated. Even with these modifications, it is unlikely that there would be an amenable resolution to the conflict. Demonstrating a Qualitv of Life Impact: To seek relief, a complainant needed to document quality of life impacts. Most complainants cited concerns regarding access to light and air, increased incidence of mold, damage to structures and other impacts. Most applicants were not able to objectively demonstrate how the height of a hedge significantly impacted their quality of life, Many clearly demonstrated impacts related to the width of a hedge, in terms of debris falling on a neighbor's property, inadequate access along side yards, hedges growing into garages or other structures, etc. In these cases a determination was made to trim the hedge such that it did not extend across the property line; however, this action did not affect the complainant's basic issue regarding the grandparented height. The evaluation criteria to grant an Objection were set at a high standard that was difficult to meet. Staff / Planninq Commission Resources and Fees: This process was an extremely intensive effort that required approximately 400 hours of staff time, cumulatively. The processing of 28 Objection Appeal applications will require up to eight additional Planning Commission meetings to evaluate the appeals. In addition, some have argued that the appeal fee of $222,35 was too excessive and may be part of the reason there were fewer appeals than anticipated. Some in the community have requested that the - 11 - Council rescind the fee and re-open the appeal period. If this were to occur, it is likely that most if not all of the Objections would likely be appealed, exacerbating the staff and Planning Commission resources needed to process these applications. Further detail about the Registration and Objection procedures, as well as the City's implementation efforts on the subject Interim Ordinance, were previously transmitted to the City Council in the form of an Information Item released in March 2006. Concerns with Grandparentina Fences. Walls and Hedaes In addition to the problems documented above, the grandparenting provision creates other challenges that make the Interim Ordinance extraordinarily difficult to enforce and raises concerns regarding the appropriate use of staff resources, One of the key problems with the grandparenting provision is the lack of a meaningful inventory. While it is true that many property owners self-registered their nonconforming structures and landscaping, not all submitted an application. Some of the newly registered inventory was installed after the effective date of the Interim Ordinance. Most hedges were registered nearly 180 days after the adoption of the ordinance (as permitted) and reflected six additional months of growth after the ordinance's effective date. Also, individuals who failed to submit a Registration application did not lose their entitlement to retain a nonconforming fence, wall or hedge. The Registration effort was voluntary. If a homeowner can demonstrate that the fence, - 12 - wall or hedge was in existence at a certain height and location prior to the effective date of the Interim Ordinance, it may remain. One of the principle reasons the issue of new fence, wall and hedge regulations is before the City Council is because it is very difficult for the City to distinguish between fences, walls and hedges constructed ten years ago and those that were constructed or planted a few months ago. Building permits are not required for freestanding fences and walls six feet or less in height, and are not required for hedges. For every complaint and reported violation, the alleged violator will have the burden of proof (unless previously Registered) to demonstrate that his or her particular fence, wall or hedge was in existence prior to the effective date of the Interim Ordinance. Demonstrating this fact will be very difficult for most residents because reliable records simply do not exist. In many cases this has resulted in a frustrating experience for the property owner. To effectively enforce these regulations, a meaningful inventory would need to be established to distinguish grandparented fences, walls and hedges from those constructed after the effective date of the Interim Ordinance. The amount of resources needed to create such an inventory is extraordinary and comparable in some ways to the City's effort to update the Historic Resources Inventory, Even if an inventory were completed, hedges will continue to grow. Enforcement of a hedge would yield short-term results and could require subsequent enforcement action. While continued nuisances could be addressed through other legal means, this scenario rightfully raises a question of how best to direct limited staff resources and to what - 13 - extent do fences, walls and hedges adversely impact the public health and general welfare. Key and Reversed Corner Parcels On April 25, 2006, the City Council directed staff to investigate and make recommendations to address a concern that had been brought to the Council's attention concerning Key parcels and Reverse Corner lots. As illustrated and defined on the next page, portions of the front yard area of a Key parcel is adjacent to portions of another property's rear yard (Reversed Corner Parcel). Maximum fence, wall and hedge height are determined by location on the property; 42- inches is the maximum for the front yard and 8 to 12 feet is the maximum in a rear yard. Reversed Corner and Key Parcels have a condition where two walls of differing heights could be located along the same property line (illustrated below as area of concern). - 14 - Reversed-Corner / Key Parcel Diagram ::11II Property line Required Front Yard Setback >> Max Fence/Wall/Hedge = 42 inches Required Rear Yard Setback >> Max Fence/Wall = 8 feet >> Max Hedges = 12 feet (unlimited height adjacent to alley) D Required Rear Yard Setback >> Max Fence/Wall = 8 feet >> Max Hedges = 12 feet (unlimited height adjacent to alley) Area of concern: Disproportionate fence, wall and hedge heights between parcels SMMC Section 9.04.02.030.61 S The parcel line separating a parcel from a street right of way. In the case of corner parcel, the line separating the narrowest street frontage of the parcel from the street shall be considered the front. Area of concern: Street side-yard fence. wall and hedge heights Key Parcel: The first interior parcel to the rear of a reversed corner parcel and not separated there from by an alley. Reversed Corner Parcel A corner parcel, the side street line of which is substantially a continuation of the front parcel line of the first parcel to its rear (or key parcel). Note: A parcel's front yard is not determined by the orientation of a home on the lot, the address, the location of the front door, or the pattern of home development in the neighborhood. The Zoning Code defines, without variation, that the front parcel line, and therefore, the required front yard, is the parcel line that separates the parcel from the street right-of-way. In the case of corner lots, the front parcel line is the one with the narrowest street frontage. For 40 years, until 1989, the City had regulations that addressed this apparent conflict by requiring fences and walls located in a street side yard to be restricted to 42-inches in height, comparable to the front yard height limits. That regulation also addresses another concern raised by Council on October 3, 2006, regarding diminished - 15 - pedestrian-orientation and potential impacts to neighborhood character caused by tall fences, walls and hedges located in a side yard and adjacent to the public right of way. There are general welfare benefits in lowering fence, wall and hedge height limits in street side yards and on reversed corner parcels, but these benefits come at the expense of reduced privacy and potentially less functional use of backyard space on the Reversed Corner lot. Among the advantages are: . improved visibility over quasi-public spaces . increased opportunities for neighbor interactions . contribution to a sense of community . improved pedestrian-oriented environment In considering this issue, the Council also directed staff to evaluate if there were any other regulations that could be impacted by a Reversed Corner lot configuration, One issue has been identified that relates to accessory structures, Because accessory structures can be located in the rear yard setback, there is a possibility that a garage could be constructed adjacent to the rear parcel line on the Reversed Corner parcel, or the equivalent of the side parcel line of the Key parcel. This condition is addressed throughout much of the City by requiring accessory structures on Reversed Corner parcels to be set back from the street side property line a distance equal to one half of the Key parcel's front yard setback. For instance, if the required front yard setback on the Key parcel is 20 feet, the accessory structure on a Reversed Corner parcel must be located at least 10 feet from the street side property line. Without this provision, the - 16 - accessory structure could extend, typically, to within five feet of the street side property line. Since 1960, this provision, or similar version, has been codified in the Municipal Code. However, this provision no longer applies to residential properties north of Montana Avenue. It appears that when new standards were adopted in 1999, this provision was inadvertently omitted. Re-establishing this provision does not conflict with any existing codes and there is no known reason why this provision should have been removed. If the Council adopts new fence, wall and hedge regulations for Reversed Corner parcels, it would also be appropriate to extend this additional restriction regarding accessory structures to properties north of Montana Avenue. HedQe Maintenance One of the principal causes for a dispute raised in the Objection process related to the lack of hedge maintenance. It is believed that many of the Objections would not have been filed if hedge owners simply trimmed and maintained the hedges such that they did not extend across the property line. While an adjoining property owner has the right to trim those portions that extend over the property line, in doing so the impacted neighbor may bear the cost of that maintenance. Further, if not trimmed properly, the neighbor risks being exposed to a damage claim should the hedge removal result in foreseeable injury. Moreover, some tenants have complained that they are particularly impacted by tall side yard hedges and do not have the same self-help remedy. - 17 - It is recommended that the task and responsibility of maintaining a hedge so it does not extend over the property line rest solely with the hedge owner. This provision could be adopted regardless of the Council's direction to regulate or not regulate hedges. OPTIONS There are many options for the City Council to consider. The following table provides a discussion point to identify the best course of action to advance City policy: REGUl:ATIONS .c.....,. .........:.... ;. DISADVANTAGES No Regulation . Let Interim Ordinance expire . Direct text amendments to implement policy . Retain safety (HVO) provisions Notes: . Grandparenting not required . Objections / Registration applications no longer valid . ALTERNATIVELY, Council could require regulations in front and/or street side ards onl Revert to Existing Regulations . No Action Required Notes: . Interim Ordinance expires . No Grandparenting . Objections / Registration a Iications no Ion er valid . City not involved in private property disputes . Code Enforcement efforts focus on other policies - 18 - . Taller hedges and walls in front yard may impact pedestrian orientation and neighborhood character . Negates positive aspects and advances made in the Interim Ordinance Retain Interim Ordinance . Adopt attached Interim Ordinance . Clarification regarding hedge heights adjacent to an alley required . Hedge Maintenance Notes: The staff report identifies those aspects of the Interim Ordinance that work well, and those that do not achieve intended goals. Adopt a New Ordinance . Direct staff to prepare a revised Interim Ordinance Notes: The details of this OPTION are discussed in greater detail on the following page. RECOMMENDED APPROACH . Fence, wall and hedge regulations work well (not Grandparenting provision) . Improved flexibility to obtain Modifications . Retains the successful aspects of the Interim Ordinance . Creates opportunity to address identified problems . Does not address problems related to Grandparenting, Objections (Appeals) and Registration procedures . Considerable staff capacity and Planning Commissioner resources needed to complete Objection process . Significant challenges to enforce the Interim Ordinance . Does not include provisions related to Reversed Corner Parcels . Residents (over 1,000) who have participated in the Objection / Registration process have an expectation that their efforts have or will result in some form of closure - and will likely be frustrated about lost time or effort Doing nothing and continuing with the Interim Ordinance does not sufficiently advance public policy or address the issues that have been identified since the ordinance was adopted. However, letting the Interim Ordinance expire creates process challenges and impacts the City's ability to resolve this matter quickly. If the Interim Ordinance is allowed to expire, it is likely that the next set of fence, wall and hedge regulations presented to the City Council would be in the form of a permanent ordinance. This will require the preparation of a Resolution of Intention to amend the Code, followed by new public hearings before the Planning Commission and City Council. It had been thought that new permanent standards would be adopted with a new Zoning Ordinance, expected in the next two and a half years. - 19 - To expeditiously resolve outstanding concerns associated with the interim regulations, it is recommended that the City Council extend the Interim Ordinance until August 31, 2007 to allow staff sufficient time to return with modifications. During this time, staff would not process and the Planning Commission would not consider the outstanding Objection Appeals, The recommended changes to the Interim Ordinance are summarized on the following page: - 20- PROPOSED FENCE, WALL & HEDGE STANDARDS <lrit~ri'iTi,Orain~nce': " . 'Propo,~dReg~la#oif" .,. '. Same or Qifferent Standards '. '. . from Interim.Ord. Fence & Wall Regulations Side & Rear Yard Front Yard & Street Side Yards Up to 4-foot increase to side and rear yard heights with neighbor's consent. Cost: $149 Modify front yard or increase beyond 4 feet in height at side and rear yard. Cost: $249 Nonconforming Fences, Walls and Hedges Grandparenting None. Registration Procedure None. Objection Procedure None. Objection Appeals None. (Appeals fees to be refunded) Other Interim Standards Ornamental Structures in front yard Height Methodology Hedge Regulations Side & Rear Yard Front Yard & Street Side Yards Modification Procedures Administrative Discretionary Hedge Definition Front Yard Areas (42-inch height limit) Reversed Corner / Key Parcels Hedge Maintenance Amortization 8 feet 42-inches Not regulated 42-inches Permitted subject to size limitations Fence, wall or hedge measured from lowest adjacent grade A boundary of shrubs, bushes or trees that enclose or divide an area (paraphrased) row or The area between the front property line and the nearest building wall or front setback line The maximum height of any fence, wall or hedge shall not exceed 42-inches when located within one half the distance of the adjoining Key Parcel's required front yard setback, as measured from the intersection of the Reversed Corner and Key Parcel lot lines and the street right of way. Add provision that requires owners trim and maintain hedges so as not to extend over property line Require compliance within five years (2013) Same Different Different Different Same Same Different Different Different Different Same Same Same Same Different Different Different This recommended approach recognizes the need of property owners who desire taller hedges for privacy or other reasons to have them on their property in areas that do not impact the general welfare. It removes the City from most hedge-related disputes and - 21 - encourages neighbors to find amenable solutions to address their concerns. Where neighbors are unable to agree, they can seek mediation or proceed through the court system to find a resolution. In either scenario, the City would not be involved in trying to find a remedy to these disputes. However, to help residents in their pursuit of a resolution, a new standard would be added that addresses one of the key issues identified in the Objection process: the issue of hedge maintenance and the requirement of hedge owners to properly maintain their hedges. The recommendation provides an approach, albeit not a perfect solution, to address the ongoing issue of how to address nonconforming hedges. It focuses the City's attention toward protecting the general welfare and in doing so directs resources that promote active living, pedestrian-oriented environments and opportunities for informal exchanges between neighbors. Where a nonconforming fence, wall or hedge exists in the front yard setback or street side yard, it must, under the recommended approach, be modified to comply. The interim regulations would continue to provide opportunities for property owners to seek relief from these standards through a discretionary review process. The criteria to evaluate those requests have been previously modified to make it easier to obtain. GrandparentinQ Alternatives Eliminating the grandparenting provision does have drawbacks. There are several people in the community who have followed this discussion closely who have registered their nonconforming fence, wall or hedge and expect that it would be allowed to remain. - 22- Not regulating hedges in the side and rear yards, as recommended, would likely be supported by many of the Registration applicants. Those who registered a nonconforming fence, wall or hedge in the front yard setback, or a nonconforming fence or wall in the side or rear yard, would be among those most upset if Grandparenting were eliminated. Concerns regarding privacy, safety, noise and aesthetics would likely be key issues. Additionally, those who have filed an Objection that relates to hedge in the side and rear yard would also likely be displeased, because their only recourse in seeking relief from a reported quality of life impact would be eliminated, and the hedge height would not be regulated. However, the recommended maintenance provision would help some of those residents. '" If desired, elimination of the Grandparenting provision could be phased out over a significant period of time to give property owners the opportunity to make alternative arrangements for the nonconforming front yard fences, walls or hedges and nonconforming side and rear yard fences and walls. Some owners may seek entitlements, including discretionary approvals, to retain their nonconformities; others may consider alternative landscaping strategies. A phased approach minimizes the immediate impact of having to remove or reduce in size a nonconforming fence, wall or hedge. If Grandparenting remains in place, Council may want to consider establishing a maximum height limit to mitigate some of the extreme situations that impact surrounding - 23- properties. Council could also consider modifying the objection findings to lessen the burden to demonstrate a significant quality of life impact. If Grandparenting nonconforming fences, walls and hedges remain a part of the Interim Ordinance, staff would continue processing the outstanding Objection appeals for Planning Commission review, This approach would provide the most expeditious conclusion to the matter and give those involved in an Objection dispute the opportunity to have their case heard before the Planning Commission. The Planning Commission's decision would be final. Previous Council Actions The City Council has considered fence, wall and hedge regulations on four prior occasions. On October 12, 2004 and May 10, 2005, the City Council discussed current regulations and enforcement practices regarding fences and hedges and directed staff to return with an Interim Ordinance establishing new standards. On July 12, 2005, an Interim Ordinance was adopted. On August 9, 2005, the City Council extended the interim ordinance, which is the subject of this report. On May 25, 2006, the City Council heard from members of the public who requested that the Interim Ordinance be amended, including extending the period for appeals to the Planning Commission and to waive appeal fees, - 24- On April 25, 2006 and again on October 3, 2006, the City Council also discussed the opportunity of incorporating changes related to fence, wall and hedge heights where located adjacent to a public right-of-way and in reversed corner parcel situations. Alternatives Alternatives to the recommended action are included in the Options section of this report. The recommended action incorporates relevant components of each option. Impacts associated with each alternative are identified above. Budget/Financial Impact The recommendation in this report would require the City to reimburse money paid by appellants for the purpose of processing 28 Objection Appeal applications. The recommended action eliminates the Objection process and therefore the appeals would no longer be valid. Each appeal cost $222.35 to file. The total disbursement amount would be $6,225.80; each appellant would be reimbursed the cost of the appeal application, or $222.35. The refund will be debited from account number 01266.401560. Attachments: Exhibit 1 Interim Fence, Wall and Hedge Ordinance Extension i een Fogarty Director, Planning & Development - 25- . .- ~CitYOf Santa Moniea@ Supplemental City Council Report To: Mayor and City Council City Council Meeting: February 13, 2007 Agenda Item: r 8 5"" P'....M&NTA...... From: Eileen Fogarty, Director of Planning & Community Development Subject: Supplemental Fence, Wall and Hedge Interim Ordinance Report Executive Summary This is a supplemental report that provides the City Council an additional option that was not fully explored in the original report, This option extends the Interim Ordinance to the maximum timeframe allowed by law, which is January 9, 2010. It is recommended that this option be given consideration as it addresses the immediate concern regarding the ordinance's expiration. With this extension, there will be an opportunity to have a dialogue with the community on the more challenging aspects of the Interim Ordinance to identify areas of consensus, Discussion As the City Council is aware, Interim Ordinance 2169, which establishes new fence, wall and hedge regulations, will expire on March 31, 2007. If this ordinance is not extended at the February 13th meeting, all provisions, including grandparenting provisions, will lapse. Therefore, it is necessary for the City Council to act on the Interim Ordinance if these provisions are to be extended. The previously transmitted report also includes information and recommendations on other issues that the City Council directed staff to 1 investigate. Staff is prepared to discuss the recommendations in the prior report related to fence, wall and hedge regulations for Reversed Corner / Key Parcels, corner lots, and clarification regarding hedge heights adjacent to an alley. However, it is not imperative that the City Council address these issues at this time, The February 13th hearing of the Interim Ordinance extension has generated a great deal of public comment, including a significant amount of email correspondence and phone calls, Given the importance of this issue in the community and the feedback from the public, attention should be given to the immediate issue concerning the Interim Ordinance's expiration, An extension of the ordinance to January 9, 2010 will provide an opportunity for staff to work with the community to seek long term and comprehensive solutions that address the challenging issues identified in the staff report. Staff is prepared to process the outstanding Objection appeal applications to the Planning Commission unless City Council directs otherwise with respect to the appeal fees. Approved: Forwarded to Council: 2 Exhibit 1 Interim Fence, Wall and Hedge Ordinance Extension - 26- F:\atty\muni\laws\barry\hedgesamendext2-13-07 -1 City Council Meeting 2-13-07 Santa Monica, California ORDINANCE NUMBER (CCS) (City Council Series) AN INTERIM ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA EXTENDING AND AMENDING THE MODIFICATIONS TO FENCE, WALL AND HEDGE STANDARDS, INCLUDING CHANGES TO THE HEDGE DEFINITION, ALLOWABLE HEDGE HEIGHTS, DEFINED FRONT YARD AREA, FRONT YARD ORNAMENTAL STRUCTURES, FRONT YARD SAFETY GUARDRAILS, AND TERRACED WALLS; GRANDPARENTING EXISTING NONCONFORMING HEDGES, FENCES AND WALLS, AND ESTABLISHING ADMINISTRATIVE AND DISCRETIONARY HEIGHT MODIFICATION PROCEDURES THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Findinqs and Purpose. The Council finds and declares: (a) During the past several years, the City received numerous complaints regarding fences and hedges that exceed the City's height limits and the lack of enforcement of these regulations. (b) In response to these complaints, the City's Code Enforcement staff began a program to encourage compliance and increase enforcement. (c) In 2003-04, the City initiated hundreds of complaints for fences, hedges, and walls violations. 1 (d) The enforcement procedures undertaken by the City and the number of violations that the City pursued resulted in a significant public negative response. (e) Based on this public reaction, at City Council direction, enforcement of fence, hedge, and wall height violations, except safety-related violations, was stayed until the regulations and enforcement practices could be reevaluated. (f) On October 12, 2004, the City Council heard extensive public testimony and discussed current regulation and enforcement practices pertaining to wall, fences, and hedges. At this meeting, the City Council directed to staff to consider a number of issues including alternative wall, fence and hedge height limits, opportunities to seek height adjustments, appropriate standards for design elements such as pergolas, and enforcement of nonconforming hedges. The Council also directed staff to review regulations in neighboring cities and conduct a public workshop. (g) City staff held the public workshop on March 9, 2005. The Planning Commission addressed these issues at a public hearing on April 6, 2005. (h) On May 10, 2005, the City Council reviewed regulations from other cities and results from a public workshop and received extensive public testimony. (i) Many people testified that the excessive regulation of hedge heights raise issues of paramount importance including infringement on personal security and privacy. Others residing adjacent to nonconforming hedges testified that these hedges impede their access to light and air and create detrimental shade and shadow impacts. This testimony highlighted the significant concern in the community regarding the appropriate standards that should govern walls, hedges, and fences. 2 U) At the May 10th hearing, the City Council directed staff to return with an interim ordinance which would retain certain existing regulations but authorize greater hedge heights in side and rear yards, allow decorative features in front yards, grandparent existing hedges, and establish a low cost height modification process. (k) As detailed above, the existing fence, wall, and hedge Zoning regulations pose a current and immediate threat to the public health, safety, and welfare of the residents. For these reasons, the Zoning Ordinance requires review and revision as it pertains to the appropriate standards that should govern fences, hedges, and walls. (I) Pending completion of this review and revision, which will occur as part of the Land Use Element/Zoning Ordinance update, in order to protect the public health, safety, and welfare, it is necessary on an interim basis to change the current fence, wall, and hedge standards, including changes to the hedge definition, allowable hedge heights, defined front yard area, front yard ornamental structures, front yard safety guardrails, and terraced wall; to grandparent existing nonconforming hedges, wall, and fences, and to establish administrative and discretionary height modification procedures. (m) In light of the above-mentioned concerns, the City Council adopted Ordinance Number 2161 (CCS) on July 26, 2005 changing the current fence, wall, and hedge standards, including changing the hedge definition, allowable hedge heights, defined front yard area, front yard ornamental structures, front yard safety guardrails, and terraced wall; grandparenting existing nonconforming hedges, walls, and fences; and establishing administrative and discretionary height modification procedures. The City Council adopted Ordinance Number 2169 (CCS) on September 13, 2005 which 3 extended Ordinance Number 2161 (CCS). However, Ordinance Number 2169 (CCS) will expire on March 31, 2007 unless extended. (n) As described above, the City Council finds that an extension of this interim ordinance is necessary because there exists a current and immediate threat to the public safety, health, and welfare should the interim ordinance not be adopted. Consequently, this ordinance extends Ordinance Number 2161 (CCS) and Ordinance Number 2169 (CCS) up to and including August 31, 2007. This extension will allow sufficient time for staff to return with additional modifications to this interim ordinance consistent with the direction provided by the City Council at the February 13, 2007 public hearing on this matter. (0) Due to concerns that have been expressed regarding the operation of the grandparenting and administrative review provisions of the interim ordinance, all appeals of Zoning Administrator objection determinations scheduled to be heard by the Planning Commission shall be stayed pending further review of this interim ordinance by the City Council. SECTION 2. Interim Zoning. Subject to the hazardous visual obstruction requirements of Santa Monica Municipal Code Section 9.04.10.02.090, any fence, wall, hedge, or flagpole shall comply with the following standards: (a) Definitions. (1) Hedge. A boundary or barrier of plant material formed by a row or series of shrubs, bushes or trees that enclose, divide or protect an area or that prevent a person from passing between any combination of individual shrubs, bushes, or trees. 4 (2) Front yard area. The area between the front property line and the nearest building wall or front setback line, whichever is the shorter distance. (b) Maximum Heiqhts in Front Yard Area. (1) Hedges, fences and walls shall not exceed forty-two inches in height. (2) One pergola or similar feature limited to eight feet in height and width, and three feet in depth shall be permitted. Ornamental attachments atop a fence, wall, or hedge shall be permitted up to twelve inches above the maximum height limit with a maximum width of twelve inches for each attachment and a minimum distance of five feet between each attachment. (3) A guardrail may exceed the maximum height limit for a fence or wall, but only to the minimum extent required for safety by the Building Code. Safety guardrails must be at least 50% visually transparent above the fence or wall height limit. (4) Each terraced fence, wall or hedge, or combination thereof, shall be set back a minimum distance from each other equal to the height of the nearest fence, wall or hedge. (c) Maximum Heiqhts in Side and Rear Yards. (1) A hedge shall not exceed twelve feet in height, except that there shall be no height limit for hedges adjacent to an alley. (2) Fences and walls shall not exceed eight feet in height. (3) A guardrail may exceed the maximum height limit for a fence, but only to the minimum extent required for safety by the Building Code. Safety guardrails must be at least 50% visually transparent above fence height limit. 5 (d) Measurinq Heiqhts. The height of a fence, wall, or hedge shall be measured from the lowest finished grade on either side of the fence, wall, or hedge. (e) Heiqht Modifications - Administrative Process. The owner of a fence, wall or hedge may request that the Zoning Administrator administratively grant a modification to the height limit of side and rear fences, walls and hedges provided the height modification does not extend more than four feet above the height limit established in subsection (c) of this Section. The Zoning Administrator may grant this modification request if the following findings of fact are made: (1) The adjacent property owner(s) that share a common property line nearest to the fence, wall or hedge have agreed to the proposed increase in height. (2) The adjacent property owner(s) have provided verification of ownership in the adjacent property, have executed a notarized letter agreeing to the proposed height modification, and have agreed that notice of the modification determination can be recorded on their property with the Los Angeles County Recorder's Office. The Zoning Administrator modification determination is not appealable and shall be recorded with the Los Angeles County Recorder's Office on each property. (f) Heiqht Modification - Discretionary process: If an adjacent affected owner does not agree to a proposed fence, wall, or hedge height modification in accordance with subsection (e) of this Section or if the owner of a fence, wall or hedge requests a height modification in excess of four feet in the side or rear yards or any modification to the height limits in the front yard area, the owner of the fence, wall or hedge may request that the Zoning Administrator grant a height modification to allow greater fence, 6 wall, or hedge height in the front, side, or rear yard of the subject property based on the following findings: (1) The subject fence, wall, or hedge will be compatible with other similar structures in the neighborhood and is required to mitigate impacts from adjacent land uses, the subject property's proximity to public rights-of-way, or safety concerns. (2) The granting of such modification will not be detrimental or injurious to the property or improvements in the general vicinity and district in which the property is located. (3) The modification will not impair the integrity and character of the neighborhood in which the fence, wall, or hedge is located. This modification process shall be conducted in accordance with Santa Monica Municipal Code Section 9.04.20.10.040. However, the variance application findings set forth in Section 9.04.20.10.050 shall not be required. The decision of the Zoning Administrator may be appealed to the Planning Commission within 14 consecutive calendar days of the date the decision is made in the manner provided in Part 9.04.20.24, Sections 9.04.20.24.010 through 9.04.20.24.050. (g) Existinq Nonconforminq Hedges, Fences and Walls. All existing nonconforming hedges, fences and walls shall be grandparented at their existing heights as of the effective date of this interim ordinance unless an objection is filed in accordance with the following procedure: (1) Within 60 days from the effective date of Ordinance Number 2161 (CCS), adjacent property owner(s) or tenant(s) with intersecting or shared property lines with 7 the owner of the nonconforming hedge, fence or wall may file a written objection to the nonconforming hedge, fence or wall with the Zoning Administrator. Upon receipt of the written objection, the Zoning Administrator shall send notice to the nonconforming hedge, fence or wall property owner(s) and provide an opportunity for them to submit any relevant information in response to the objection within ten calendar days. The Zoning Administrator may grant the objection only if the Zoning Administrator finds that allowing the hedge, fence or wall to remain at its existing height would be significantly detrimental or injurious to the complainant due to the hedge's, fence's or wall's substantial impact on light, shadow, air, or safety, or other objective quality of life impacts. It is the complainant's burden to demonstrate this substantial impact. In assessing the objection, the Zoning Administrator shall take into account the nonconforming hedge's, fence's or wall's location, age, height, and other related features. If the Zoning Administrator grants the objection, the height of the hedge, fence or wall shall only be reduced to the extent necessary to address the identified impacts. The Zoning Administrator's determination shall be in writing. The decision of the Zoning Administrator may be appealed to the Planning Commission within 14 consecutive calendar days of the date the decision is made in the manner provided in Part 9.04.20.24, Sections 9.04.20.24.010 through 9.04.20.24.050. (h) Flaqpoles. Freestanding flagpoles may not exceed the height restrictions of the district in which they are located. (i) Reqistration. The City Manager shall promulgate rules to permit the registration of grandparented hedges, fences and walls in accordance with the requirements of this Ordinance. 8 SECTION 3. To the extent of any conflict between this Ordinance and the hazardous visual obstruction requirements of Santa Monica Municipal Code Section 9.04.10.02.090, the hazardous visual obstruction requirements shall control. SECTION 4. This ordinance shall be of no further force and effect after August 31, 2007 unless prior to that date, after a public hearing, noticed pursuant to Santa Monica Municipal Code Section 9.04.20.22.050, the City Council, by majority vote, extends this interim ordinance. SECTION 5. Notwithstanding subsection (g) of Section 2 of this ordinance, all appeals of Zoning Administrator objection determinations scheduled to be heard by the Planning Commission shall be stayed pending further review of this ordinance by the City Council. SECTION 6. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. SECTION 7. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. 9 SECTION 8. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective 30 days from its adoption. APPROVED AS TO FORM: ~ S MOUTRIE 10