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.
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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.
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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
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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.
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~, .
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.
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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.
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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.
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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
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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
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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
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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
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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,
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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
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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).
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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
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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
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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.
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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
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. 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.
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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:
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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
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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.
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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
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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,
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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
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. .-
~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
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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:
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Exhibit 1
Interim Fence, Wall and Hedge Ordinance Extension
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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.
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(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.
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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
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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.
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(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.
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(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,
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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
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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.
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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.
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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
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