When a code violation involves a hedge rather than a fence, quite often the property owner elects to trim the hedge to comply with code rather than go through the time and expense of pursuing a variance.  However, because of the funds already invested in constructing a fence, a property owner will generally pursue the variance procedure rather than removing or modifying the fence.  If a property owner chooses to apply for a variance rather then modify the fence or hedge violation to comply with the existing code, then staff and the Planning Board are faced with the dilemma of determining if the project meets the required variance findings.  The Planning Board has struggled on many occasions because of the difficulty in making the required variance findings for a fence.  For example, the variance process requires that the Planning Board find, among other findings, that there are exceptional or extraordinary circumstances or conditions applicable to the property that do not apply generally to other property in the same vicinity.  On a typical rectangular lot, such a condition does not usually exist and therefore a variance is not likely to be granted.  There is usually a conflict when the project does not appear to meet the letter of the finding, but the project seems reasonable and would not be detrimental to the neighborhood.  In June of 2003, the Planning Board approved Variance Number 2003-1 for the property located at 2646 North Brighton Street and thereby authorized a four foot four inch high white picket fence with a seven foot three inch arbor to remain within the front yard setback area as well as a six foot four inch high masonry/wood fence to remain in the required street side yard.  The photograph above illustrates the varying height of the fence above the three foot code limit and the tall landscaped arbor, yet they do not seem to detract from a visually pleasing environment.   

There have also been cases where the findings can be made and the Board has expressed the need for taller fences especially when the property abuts an arterial street.  In October of 2001, the Planning Board approved Variance Number 2000-16 for the property located at 1003-1005 Bruce Lane.  That variance authorized a five foot six inch high block and wrought iron fence within the required front yard and street side yard setback areas.  This multi-family property is located on Alameda Avenue across from commercial uses.

There is a growing concern with the increasing number of illegal fences and hedges and a need to establish criteria and procedures to address exceptions.  These fences are over the three foot height limit within the front and street side yard setbacks.  Many variance applications are on hold pending potential resolution to the fence and hedge issue.         

HISTORIC AND CURRENT CODE:

Prior to the adoption of Ordinance No. 2064 on October 10, 1967, the code allowed the height of walls, fences and hedges within the front setback to be a maximum of four feet above the grade line of the sidewalk adjacent to the front setback, and up to eight feet above the grade line of such lot if located to the rear of the front yard setback area. (Exhibit A)  The front yard setback in the R-1 zone is 25 feet.

On October 10, 1967, the Burbank City Council adopted Ordinance No. 2064 which created Burbank Municipal Code �12-1311, 12-1312 and 12-1313 to reduce the maximum height of walls, fences and hedges to three feet in the front yard (25 feet) and street side yard (10 feet).  The eight foot requirement for interior side and rear fences remained the same. (Exhibit B)

The primary difference between the pre-1967 fence ordinance and the latter is that the 1967 ordinance reduced the height limit from four feet in the front yard and eight feet in the side yard setback area to three feet in the front yard setback area and three feet in the side yard setback area on the street side of a corner lot.  The other notable change was that the pre-1967 fence ordinance measured the height of fences, walls and hedges in the front yard or street side yard setback areas from the grade line of the sidewalk or street in the absence of a sidewalk, whereas the 1967 ordinance measures height from the grade of the lot.  Additionally,  the 1967 ordinance also established corner cutoff requirements for intersections of property lines with streets and alleys to insure adequate visibility for pedestrians, bicycles and vehicles at intersections.

Minor modifications to the subject ordinance have resulted in the code as it exists today, but is mostly consistent with the 1967 ordinance.  The current Burbank Municipal Code as it relates to heights for walls, fences and hedges is contained in BMC Sections 31-1302, 31-1303 and 31-1304.  (Exhibit C)  Any fence that was constructed under the pre 1967 code is considered legal non-conforming and can remain.  However, when it is demolished or destroyed, can only be rebuilt in accordance with code.

FENCE AND HEDGE RELATED ISSUES:

The following describes the various topics of concern surrounding front and street side yard fences in the City.  There are concerns from safety personnel, owners of property with fences, adjacent property owners and of course those expressed by elected and appointed officials.

Height Issue

Based on the Planning Division�s involvement with various City departments and divisions, different concerns have surfaced regarding the appropriateness of allowing higher hedges or fences to be constructed within the required front yard and street side yard setback areas.  Both the Police and Fire Departments have expressed concerns regarding higher obstructions in the front and exposed side yards because of the potential to slow response time to a residence (e.g., impassable gates and fences in the front yard).  Also, the Police have stated that fences and hedges provide hiding places for criminals and create more of a safety hazard for the resident.

Other safety issues and concerns have been raised because of a driver�s inability to safely see over a fence or hedge that is greater than three feet in height when entering or exiting a driveway.  In addition to the concern for adequate driver visibility there have been concerns that dogs may be kept in areas adjacent to public sidewalks if fences are allowed to be higher than three feet.  The problem stated is that these dogs may then pose a hazard to pedestrians on the sidewalk because they could jump the fence or reach through an opening and injure someone walking on the public sidewalk.

Another issue is that the Uniform Building Code requires a five foot high fence to enclose a swimming pool.  This does not necessarily pose a conflict with our fence regulations, it merely means that swimming pools cannot be located within required front or exposed street side yards.  However, another section of the Burbank Municipal Code allows pools in a side yard setback, only three feet from the property line.  Therefore, if the owner constructs the pool within the side setback as allowed by code and is required to place the fence surrounding the pool, the fence will then violate the fence regulations.  Although this situation is not common, this is another area of the fence issue that has been raised by members of the community.

When discussing fence violations with the subject property owners, the main reasons most frequently given to staff for installing and maintaining the over-height fences were privacy and safety/security concerns.  A quick windshield survey of the violations indicate that the majority of heights in violation range between four and six feet; there are however some fences in excess of six feet in height.  The residents have stated that they feel more secure with higher fences and hedges surrounding their properties.  However, as stated above, the Police Department finds that these taller opaque walls can in fact reduce security by allowing areas for suspected criminals to hide.  In addition, the taller fences may cause a false sense of security for parents who might allow smaller children to play in the front yard possibly without proper supervision. 

If the City does propose changes to the ordinance, there will be a need to strike a delicate balance in order to preserve neighborhood character consisting of open front yard areas and to minimize negative visual and safety impacts.

Measurement of Height

As the code exists today, a property owner can construct a retaining wall adjacent to the sidewalk and fill in soil behind the retaining wall to create a level front yard (this is common on sloping lots).  Effectively, the top of the retaining wall could have a zero height because the height today is measured from the top of the filled soil (not the bottom of the retaining wall adjacent to the public right of way).  Because the top of the retaining wall would have a zero height, the property owner would then be allowed to construct a 3-foot fence on top of the retaining wall.  This would clearly create obstructed vehicular visibility within the required yards.  If the retaining wall was five feet high and then the property owner constructed a permitted three-foot high fence on top of the finished grade there would be an eight foot wall/fence at the front property line directly adjacent to the sidewalk.  The photograph illustrates the impacts that can occur when retaining walls are constructed and the soil is leveled thus creating a wall within the front yard setback of extreme proportions.

If the City does propose changes to the ordinance, it might be beneficial to consider amending the way height is measured that would reduce visual impact and avoid ten foot or taller walls directly at the property line.

Aesthetic Issue

Burbank Municipal Code currently has no regulations regarding design or materials for newly constructed walls or fences.  Nor is there any provision for staff review or permitting of proposed wall or fence construction except for retaining walls in excess of three feet in height or block walls in excess of eight feet in height both of which do require full engineering and building permits and inspections by Building Division staff.  In those cases, there is still no required Planning review of fences.  The advantage of minimal City regulation is that the residents are free to choose the style and material for their walls and fences that they desire and can afford.  The drawback of having no regulations is the lack of compatibility of fences within the surrounding neighborhood and use of materials that may negatively impact the aesthetic quality of the area (e.g. chain link fencing or two completely different styles of fences on the same or abutting properties).

There does not appear to be a common denominator regarding the types of construction materials used for the walls and fences.  Various materials in use include block, brick, wood, chain-link, barbed wire (sometimes on commercial and industrial properties), wrought iron, and most recently, vinyl fencing.  Many fences include combinations of materials.

Trees are permitted in front yards and there is no requirement for what type of planting to use for hedges.  Some homeowners have planted rows of trees within the front yard setback which have the effect of a hedge, but still constitute a legal situation as they are trees.  Any future code amendment should attempt to address this issue because trees which are planted as hedges have the same negative safety and aesthetic impacts as walls, fences and hedges.

The final issue with aesthetics is what is sometimes placed in the front yard.  Front yards are to remain open and unobstructed according to code.  But once a fence is installed, whether opaque or transparent, sometimes play equipment is stored there permanently or more hardscape is added where cars can park.  The code attempts to place more scrutiny on the front yard area and any ordinance which seeks to increase the fence height will also have to consider the negative effects of more code enforcements cases on using the front yard as storage.

While most of the focus and concern is on residential, specifically single family residential areas, there is a great concern over aesthetics of fences in commercial areas.  If the City seeks to adopt a new ordinance and address materials permitted for fences, concern should be given to materials used for fences in commercial areas as well.

Other Safety/Security Issues

The argument received from most homeowners regarding why they want their taller front yard fence relate to safety and security concerns.  They state that they want to protect their children and allow them an area to play.  They state that they want to protect their property including having a place for their dogs to be kept in the front yard to protect their property.  Many of the answers relate to the type of street they live on or near.  For example, single family homes on major arterials may have to deal with more noise and more pedestrian traffic which may give them a greater desire to protect their yard or have hedges to shield the noise.  However, a very high wall would have to be constructed to truly block more noise than a three foot wall.  Also, some houses face commercial areas which are permitted to have fences at the property line if the lot has less than 75 feet frontage.  Any new code will have to consider this.  For the corner lots or unusual triangular shaped lots, they are usually able to apply for and receive approval of a variance because the lot is so unique and they are not afforded the opportunity of having a large enough private yard space for recreational purposes.  Any future code should be concerned with the lots that cannot meet variance findings and determine if they should be given special privileges.

For many multiple family areas, privacy is part of the concern.  In areas where there are many duplexes, you will find that the rear yard is the private outdoor area for one unit and the front yard is the private outdoor area for the other unit.  Enclosing this area with a fence becomes more important for these residents.

Enforcement Issues

As stated earlier, the enforcement of illegal front yard fences has been reactive, based on complaints, rather than proactive.  One notice of violation often results in neighbors turning in other neighbors for the same violation.  Applicants are allowed to keep the fence until the variance is processed.

One solution to the code enforcement problem might be to allow an amnesty approach for the violations.  This would allow everyone with an illegal fence to come in to the City and register the fence.  They would be given temporary amnesty, meaning they could leave the fence up now (assuming it is under six feet and does not need a building permit) and a restriction could be placed on the deed for the property so once it is sold, the fence would be removed or made to conform to code.  Any new owner would be made aware of the fence and therefore any cost to remove could be made part of the sales agreement.

CITY OF GLENDALE FENCE CODE:

The fence issue has been a point of controversy in the City of Glendale for many years.  Most notably, the controversy stemmed from the fact that two Council Members had illegal fences and one believed his fence was appropriate.  In late 2001, the Glendale City Council voted 4-0 to uphold their 1922 law which bans fences in the front yard setback.  Glendale states that the ban on front yard fences was part of a master plan from 1922 which envisioned broad tree-shaded streets, numerous public parks and open space areas in residential neighborhoods.  Although some cultures prefer the enclosed front yard because they are an extension of the family room, Glendale opted for the open feeling of streets without barriers.  The only type of �fencing� allowed in the front yard setback is retaining walls and planter curbs up to 18 inches in height.  Retaining walls are also further restricted as they may not exceed five feet and there is a stair step requirement before another five foot retaining wall can be installed.  In the Rancho area of Glendale, they do allow fences in the front yard setback under certain restrictions.  This allowance was made in order to maintain the character of the Rancho area which consisted of split rail fencing similar to old ranch areas.  Any fences in the Rancho area above 18 inches, however, must go through Design Review Board for approval.

Glendale City Council further directed staff to begin enforcing on the law.  In the Summer of 2003, Glendale staff sent letters to approximately 1700 property owners informing them of their illegal fences and the direction Council had taken with regard to enforcement.  Specifically, all fences that were damaged or deteriorated or that consisted of chain-link, fiberglass, plastic or wire were to be removed immediately.  Those made of wood, wrought iron, masonry or similar material within the setbacks were informed that they must be removed within five years of the notice date or upon sale or transfer of the property.  Those in the Rancho area were informed they had five years to submit for Design Review or remove the fence.  These letters sent many complaining to City Hall and subsequently the Glendale City Council has directed staff to again re-examine the entire fence issue and has even asked staff to consider reducing the variance fee so that it will be easier for property owners to apply.

CONCLUSION:

There is clearly a need for a comprehensive re-examination of the code provisions.  New criteria should address height (given security and safety concerns), differing height in different areas (like along arterials or near commercial zones), materials, general aesthetics, trees versus hedges, retaining walls, and of course enforcement of existing illegal fences.  It becomes important for the Council to ask the question �what do we want our streets and neighborhoods to look like?�  It becomes less of a community concern for what type of yard a homeowner wants or what type of privacy they may think they need, and more of a community issue of what do we want people to think when they are driving down our streets.  Other cities have asked this question and have removed or severely reduced the fence allowance in the front yard because they wanted a more open feel to the neighborhood rather than a closed off appearance that might indicate security problems in the area and result in a limitation of the �public� space.

Based on previous comments from Planning Board and City Council members, staff believes that there would be support to at least modify the existing code in a manner that would either restrict or severely limit the use of chain link fencing.

The code could also be amended to measure the permitted height of a wall or fence from the grade of the sidewalk or street where the visual impact is greatest or at least require some sort of tiered setback when retaining walls exceed a certain height.  For instance, if the lot is sloping, a retaining wall might be allowed up to three feet, then must be set back five feet, then allow another three foot retaining wall and so on until the front yard is leveled to the satisfaction of the homeowner.  There are several options to achieve the goal of reducing the impact at the street or sidewalk level.

A suggestion to improve pedestrian and vehicular safety would be to require a maximum height at the intersection of a driveway and the sidewalk, both for retaining and above grade walls.  Another option would be to limit opaque materials.

To solve the code enforcement problem, the City may choose a type of amnesty program as discussed above or possibly fences of a certain height could be grandfathered, like any fence that is four feet six inches or less.

Again, any new code needs to strike a balance between a homeowner�s desire for security and privacy and the community�s goals of safety and aesthetic character.

RECOMMENDATION:

Staff is seeking input from the City Council regarding the desire to further amend the code as it relates to fences and hedges.  Upon receiving direction from the City Council, staff is proposing to hold community outreach meetings to develop a complete and comprehensive understanding of what the community desires in regards to residential fences and hedges.  Staff would propose holding workshops with the Chamber of Commerce, Burbank Board of Realtors as well as community homeowner groups.

If the Council desires, a study session could be held before the Planning Board also to gain their input.  This study session could involve various representatives which would allow the Board the opportunity to hear from different sections of the community on this issue and then be able to offer recommendations to the City Council.

This report has outlined some recommendations for addressing the fence issue.  Staff requests City Council direction if they concur with these and also requests that the Council offer additional recommendations on a proposed ordinance and any direction for community outreach or a study session.

LIST OF EXHIBITS:

Exhibit A          Code prior to October 10, 1967

Exhibit B          New code adopted October 10, 1967

Exhibit C          Current code

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