APPEAL OF PROJECT NO. 2004-181 VARIANCE

PURPOSE

To consider an appeal of the Planning Board decision to deny the request of Mr. Michael Williams for Project No. 2004-181 Variance, to legalize an existing partially constructed wall at 125 North Valley Street.  Approval of a variance is required to construct a wall or fence above the height of three feet within the required 25 foot front yard setback of the R-1 Single Family Residential zone.

BACKGROUND

Property Location: The subject property is located at 125 North Valley Street [Lot 107, Tract 9517 (M.B. 134-89-91)].  The property is located in the block south of Riverside Drive, north of National Avenue, and one block east of Clybourn Avenue.

Zoning: The subject property is located within the R-1 Single Family Residential zone, as are adjacent and abutting properties. (Exhibit A)

General Plan Designation: The Land Use Element designates the property for Single Family uses.

Property Dimensions: The property is rectangular with a width of 50 feet and a depth of 204 feet, with a total lot area of 10,200 square feet.

Street Classifications: Valley Street is designated as a Local Street with a 60 foot right-of-way (36 feet paved with 12 foot sidewalks and parkways on each side).

Current and Past Development of the Site: The property is currently improved with a 2,350 square foot residence and a 400 square foot attached garage, originally constructed in 1940.  Within the front yard, block walls to five and a half feet in height are located along the side property lines, and along the front property line is the partially constructed fence that currently consists of the 16� square pilasters. 

Recent permits and property inspections show that a swimming pool, trellised barbeque area, and waterfall feature have recently been constructed in the rear yard.  An existing shed, located three feet from both the rear and side property lines, is located in the northwest corner of the rear yard and is in the process of being resurfaced.  In that utility lines are located along the rear property line, a Building Division Inspector is researching the allowance of the shed�s location, and this issue will be finalized through the Building Permit process.  In addition, a washer/dryer closet was extended out from the garage into the northerly side yard, with no setback remaining.  The contractor and the property owner have been informed that this is not permitted under any circumstances, and that the projection must be removed.

Project Description: The applicant requests approval of a variance to legalize within the front 25 foot front yard setback: 1) existing side yard block walls that would be reduced in height to four feet, with a five foot section of the northerly wall adjacent to the driveway being reduced to three feet in height to allow for driver visibility; and, 2) modify a partially existing fence along the front property line to consist of 16 inch square pillars to 4.5 feet in height, with decorative wrought iron fencing and gates between the pilasters to four feet in height.  Vegetation is proposed to be planted between with wrought iron fencing and the sidewalk area, to establish partial visibility into the front yard area.  Although not detailed on plans, the proposed driveway and pedestrian gates would not be permitted to open across the public right-of way, should this request be granted.  (Exhibits B-1 and B-2)

The Applicant has stated in his application form that he wishes to finish construction of the subject fencing for security and privacy reasons.  He states that his home has been burglarized three times in recent years. (Exhibit B-3)

The Applicant has provided within the application packet a chart and pictures of seven other properties within his block of North Valley Street with fences above three feet in height within the front yard setback, and notes that his request for the above noted pillar height and width, wall and fencing height are in keeping with the averages of the seven other properties listed.  

Municipal Code Conformance: Burbank Municipal Code Section 31-1302(1) requires that the height of walls, fences and hedges not exceed three feet above the finished grade of the lot within the required front yard setback (25 feet in the R-1 Single Family Residential zone).  This inconsistency with the code necessitates the subject variance application.

Before 1967, Burbank Municipal Code allowed fences to four feet in height within the front yard setback and to eight feet in height behind the front yard setback, including the side yards along streets.  A 1967 zone text amendment (ZTA) reduced the allowable height within the front yard and street facing side yard to three feet, with eight feet heights still being permitted behind the front yard setback. 

City Council Direction:  On August 24, 2004, the City Council directed staff to prepare a ZTA addressing BMC Section 31-1302(1).  The Planning Board discussed the issue at the meeting held on February 28, 2005.  The Board agreed with the Fence Task Force recommendation to increase the allowable height to four feet for open fencing and allow ornamentation to exceed the maximum height by one foot, if the ornamentation is separated by eight feet from center.  The Planning Board also agreed with the Task Force recommendation to require five foot corner cutoffs at driveways for pedestrian safety.

The Planning Board directed staff to prepare an Ordinance amending the fence code with these and other recommendations.  A zone text amendment, however, will not be presented to the Planning Board until Summer 2005, and the City Council may ultimately adopt code changes that differ from those as proposed by the Planning Board.  This Applicant was not willing to wait, especially in that his project differs from the current recommendation by the Planning Board.

Public Correspondence: The two variance requests (Project 2004-72 Variance and the subject request) filed for this property came as the result of a complaint that was filed with License and Code Services on April 23, 2004.  One neighbor called after the public notice for Variance 2004-72 was mailed, stating an objection to the project.  At the October 11, 2004 Planning Board public hearing regarding Project No. 2004-72 Variance, seven neighbors submitted letters and petitions stating opposition to the wall and fencing. (Exhibit C)  Since the Planning Board denial without prejudice of Project No. 2004-72 Variance, staff has received one additional call from a neighbor inquiring as to the status of the partially constructed fence, and expressing a wish for the walls to be removed.  At the January 24, 2005 Planning Board meeting regarding Project 2004-181 Variance, two neighbors spoke in opposition to the project.  Since that meeting date, staff has received an additional call relating that other construction on the property may be illegal, prompting a Site Inspection by Planning and Building Division staff on March 14, 2005, and as detailed above.

ANALYSIS

Surrounding Neighborhood: The subject property is surrounded in all directions by single family residential uses.  Four approved fence variance requests were found on file for properties located at 4366, 4406, 4420 and 4536 Clybourn.  One of those variance requests was granted at the Planning Board meeting of July 25, 1957, two during the meeting of September 26, 1983, and one at the meeting of October 10, 1983.  The approved variances allow for fences, walls and hedges within the required 25 foot front yard setback ranging in height from four feet to six feet.  No fence variances for the subject block of North Valley were found on file.  As staff has observed and as shown in the Applicants pictures, there are several fences on this particular block (and, as known, within the City at large) that do not conform to current or past codes and were built without observance of the code.

Project Characteristics: The purpose of the requirement of a variance for fence heights greater than three feet in the front yard is to insure that the fence will not have a detrimental impact on surrounding properties, and to ensure that the findings required to make a variance are met. 

The proposed wrought iron fencing will be covered with vegetation for the majority of the front of the lot, precluding clear views onto the lot.  The open sections at the driveway and pedestrian gate will allow for visibility onto a portion of the lot.  The sixteen-inch square, four-foot six-inch high pillars, which are located on each side of the driveway, partially precluding the view of drivers exiting the property, backing out or driving forward, causing a safety concern for pedestrians.

At no time has the Burbank Municipal Code allowed fences above four feet in height, and that was lowered to three feet (the current code permitted height) in 1967.  Staff does not believe that the existence of other illegal fences within the area warrants the allowance of continuing to ignore code requirements without adherence to the strict variance findings, which are discussed below.

The 10,200 square foot lot is a relatively large, flat lot.  Staff believes that the applicant�s concerns for having a private yard can be met elsewhere on the lot, such as in the flat rear yard where a fence to eight feet in height is permitted, ensuring privacy for the residents, and that a private enclosed front yard is not necessary in this case.  The Applicant�s concern regarding safety is discussed further in the Police Department comments below.

Department Comments: The subject application was routed to City departments and divisions for review and comment. (Exhibits D-1 and D-2)  The following comments are of particular note:

q       The Police Department recommends denial of the project in that the height of the fence precludes views of pedestrians and others using the sidewalk, posing a hazard to children and possibly other pedestrians.  The Police Department notes that the picture provided by the applicant shows an SUV and that a passenger car driver would not have visibility of those using the sidewalk, until they were already blocking the path of the sidewalk.  (Exhibit D-1)

In the previous report on this property, and in response to the applicant/appellant�s concerns regarding security, Sergeant Puglisi of the Burbank Police Department noted that this area is not considered a high crime area for the City of Burbank.  In fact, this area is on the low-end of the areas susceptible to crime. Although the property has been burglarized in the past, with one burglary report on file with the Police Department, the subject fence would not necessarily preclude crimes from happening on the property in the future.  Taking a snapshot picture of the crimes in the area, none recently were home burglaries and all were automobile theft related.  The Police Department noted that having a tall fence might not prevent these crimes.

q       The Public Works Department writes that the existing pilasters encroach 11 inches into the public right-of-way, and that an Encroachment Agreement would be granted to the applicant, with the proper application submittal.  The Public Works Department also notes that a City employee met with the applicant prior to construction of the pilasters, and the applicant was informed as to where his correct front property line existed. (Exhibit D-2)

Although the Public Works Department has stated that they will grant a public right-of-way Encroachment Agreement for the pillars, the design will depend on the final allowed fencing height.  If the Variance request is granted and a fence above three feet in height is permitted, the Public Works Department will require a five foot by five foot corner cutoff at the entrance to the driveway, to prevent visual obstruction of the sidewalk.  Although the Applicant has proposed to reduce the height of the wall along the northerly property line to three feet, for a five foot distance back, he still proposed to keep the 16 inch square pilasters at the driveway entrance for visual uniformity.  The five foot corner cutoffs are not required for fences less than three feet in height.

Planning Board Public Hearings: On October 11, 2004, the Planning Board voted 5-0 to deny without prejudice the applicant�s first request, to allow the following: side property line block walls to five feet six inches in height; six feet high and sixteen inches square pilasters with five feet six inches high wrought iron and ficus, along the front property line; and, driveway and pedestrian gates to six feet in height. (Exhibit E-1)  At the meeting, the Applicant had explained to the Board that a significant investment had been made to create the wrought iron fencing.  The Planning Board voted to deny the project without prejudice to allow the Applicant the opportunity to revise the plans, and return without filing another Variance fee or waiting one year. 

On January 24, 2005, the Planning Board voted 4-0 to deny the applicant�s second request, for side property line block walls to four feet six inches in height; five feet high and sixteen inches square pilasters with four feet six inches high wrought iron and ficus between the pilasters, located along the front property line; and, driveway and pedestrian gates to four feet six inches in height. (Exhibit E-2)  The Planning Board denied the second proposal because the pillar height was still significant, and that the variance findings could not be met at the property in question.

Proposal Progression

Environmental Status: The project has been determined to be

Categorically Exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Section 15303(e) of the State CEQA Guidelines pertaining to the construction of accessory structures, such as fences. (Exhibit F)

CONCLUSION

It is staff's assessment that three of the four variance findings required for approval can not be made for this project.

Requirements for Granting of a Variance

(1)   There are exceptional or extraordinary circumstances or conditions applicable to the property or to the intended use that do not apply generally to other property or classes of use in the same vicinity and zone.

There are no exceptional or extraordinary circumstances applicable to the subject property that do not apply to other properties in the vicinity and zone.  The subject property is almost a quarter acre, flat, rectangular, interior lot, similar to the vast majority of properties in the City of Burbank.  There is no circumstance, such as a corner lot, the lack of private yard, location on a major thoroughfare or near an unusual land use, severe topography, an unusually shaped lot, or undue safety concerns which create an unusual circumstance that necessitates the granting of a variance.

The Applicant�s safety concern is identical to that as wished for by all property owners.  The existence of a wall and fencing along the front property line above the height of three feet will not prevent crime from happening at the property.  His concern about privacy can be met in the flat and private back yard, which is permitted to have fencing to eight feet in height, and where other property owners meet their private outdoor needs.

(2)   The variance is necessary for the preservation and enjoyment of a substantial property right of the applicant, possessed by other property owners under like conditions in the same vicinity and zone but which is denied to the property in question.

There is no substantial property right which is possessed by other property owners and denied to the applicant with regard to wall height.  While there are four variances for tall fences in the front yard setback in the nearby area, none are on the same block as the subject property, and all were approved between 1957 and 1983.  Other fences in the neighborhood, catalogued within the application by the Applicant, are not constructed in accordance with the current or previous code requirements and therefore are not legal, and as such, those fences are not considered a property right that is possessed by those property owners. 

The applicant states that security is one reason for requesting a higher than permitted fence.  As noted in the Police Department comments, the area is not an unusually high crime area and in fact, is on the low end of the crime rate for the City.  While the reduction in height is more consistent with the averages of other fences in the area, Staff does not believe that approval of this variance is necessary to preserve a substantial property right which has been denied. 

(3)   The granting of the variance will not be materially detrimental to the public welfare or injurious to property or improvements in the vicinity and zone in which the property is located.

Granting of this variance may be materially detrimental or injurious to property or improvements in the vicinity and zone in which the property is located.  The purpose of the code requirement for a maximum three foot high fence is to maintain a residential character and open feeling in the neighborhood.  Many people purchase homes based on a neighborhood�s appearance, which is created through various zoning restrictions.  The neighborhood aesthetics change with each code variance, permitted or illegal, creating a different feel to the neighborhood than the original open appearance.

Based on the fact that this application was filed as the result of a complaint and staff has received calls, letters, and petitions requesting that the City Council deny the request, it can be deduced that there are members of the public who are adverse to this particular fence being over three feet in height.  However, being adverse to a particular development or improvement does not necessarily create a detriment or injury. 

(4)   The granting of the variance will not be contrary to the objectives of the General Plan.

The objectives of the General Plan do not include direction on the issue of fence heights in the City, but does note a goal to �maintain attractive residential neighborhoods.�  The subject property and surrounding neighborhood is classified as Single Family Low Density Residential, permitting one unit per lot.  Construction of a fence will not conflict with the objective of the classification.

With regard to the variance request, it is staff's assessment that three of the four findings required for approval can not be made for this project.

RECOMMENDATION

Staff recommends that the City Council uphold the Planning Board�s decision and deny Project No. 2004-181 Variance.

LIST OF EXHIBITS

Exhibit A - Zoning and Fair Political Practices Act Compliance Map

Exhibit B-1 - Appeal Form and Application Package

B-2 - Plans and Pictures

B-3 - Police Department Burglary Report, dated January 27, 2003

Exhibit C - Opposition Letters and Petitions from October 11, 2004 Public Hearing regarding Project No. 2004-72 Variance

Exhibit D-1 - Police Department Review Comments

D-2 - Public Works Department Review Comments

Exhibit E-1 - Planning Board Resolution No. 2954 and Minutes, dated October 11, 2004

E-2 - Planning Board Resolution No. 2971 and Minutes, dated January 24, 2005

Exhibit F - Public Notice of Environmental Decision

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