PURPOSE:

On November 15, 2005, the City Council directed staff to return with options for enforcement of the existing fence regulations in residential zones until such time that the recommendations of the forthcoming Blue Ribbon Task Force on fence issues are considered by the Council.  This report responds to that request and recommends that the Council proceed with immediately adopting new fence standards that would incorporate enforcement provisions.

BACKGROUND:

On August 16, 2005, the City Council considered a zone text amendment that would have modified the standards for fences, walls, hedges, and other yard features in residential zones.  The staff report to the Council, which discusses the proposed changes to the standards and the rationale behind them, is attached as Exhibit A.  The Council did not adopt the proposed standards, and directed staff to return with options for additional public involvement in creating the new standards.  On September 13, 2005, staff returned with the requested options, and the Council directed staff to establish a Blue Ribbon Task Force on fence issues.

The original deadline for Burbank residents to apply to serve on the task force was October 31, 2005.  Due to the limited number of applications that were received, the deadline was extended to November 30, 2005, and extended a second time at the direction of the City Council to January 31, 2006.  As of the publication of this report, the City Clerk�s office had received nine applications from Burbank residents interested in serving on the task force.

On November 15, 2005, in response to public testimony, the Council directed staff to return with options for enforcement of the existing fence regulations until such time that the Blue Ribbon Task Force completes its work and its recommendations are considered by the Council.  One of the options discussed included the adoption of an enforcement �moratorium� to halt enforcement of the fence regulations while the task force completed its work.

Code Enforcement

The License and Code Services Division enforces the existing fence standards only in response to complaints; there is no proactive enforcement of fence regulations.  As noted in the staff report to the City Council on August 16, 2005, many fences, walls, and hedges throughout the City are inconsistent with current Code requirements.  In some cases, these fences and walls were built under previous Code standards and were legal at the time they were originally constructed.  In other cases, the fences and walls have been erected under existing Code requirements, but no complaints have been received, so the fence or wall remains inconsistent with Code.

Because the City does not require permits for fences or walls (except block walls over six feet tall, which require a building permit per the Building Code), there is no formal process for City review, approval, or inspection of most fences and walls.  The City becomes aware of nonconforming fences and walls only as complaints are submitted.  For those fences or walls for which a complaint has been received, the property owner has the option of either bringing the fence or wall into compliance with current standards (or the standards applicable at the time the fence or wall was originally built if the owner is able to provide evidence of when it was erected), or applying for a variance to deviate from Code requirements.  Enforcement action is placed on hold while the variance application is processed, and resumed if the variance application is ultimately denied.

Since this issue was last discussed at the November 15 Council meeting, the License and Code Services Division has received over 400 complaints from one resident about fences, walls, and vegetation that the resident believes to be inconsistent with current Code requirements.  License and Code staff is now processing these complaints.  Because of the volume of complaints received and the length of time that will be required to process them, enforcement action is being prioritized for those situations where the fence, wall, or hedge in question is deemed to constitute a safety hazard, such as by blocking the visibility of a motorist backing out of a driveway.  As of the publication of this staff report, License and Code Services staff had investigated 40 of the fences, walls, and hedges for which complaints were filed.  Of the 40, 14 were found to be legal and not in violation of Code requirements.

ANALYSIS:

At any given time, the City is in the process of considering one or more changes to the Zoning Ordinance that could affect the manner in which some Burbank property owners can develop and use their properties.  Until such time that new zoning standards are adopted, the previous standards typically remain in place with the full force of law, and are enforced by the City.  It is not typical for the City to cease enforcement of an existing zoning regulation simply because a revised or new standard is under consideration.  However, if the existing standard is found to be no longer consistent with the policy direction of the City Council, it may be appropriate for the Council to adopt interim standards or to take immediate action to change those standards and then revisit and review their effectiveness following adoption.  A recent example of this approach is the development standards for the R-1 and R-1-H single family residential zones.  While staff continued to work on creating new development standards and soliciting community input, the Council adopted interim standards that were more reflective of the Council�s policy direction than the standards then found in the Code.

Rather than adopting an ordinance to place a moratorium on the enforcement of the City�s fence standards, staff recommends that the Council proceed with adopting new fence standards that would include new enforcement provisions.  The proposed standards would be substantially similar to the standards presented to the Council on August 16, but would include new enforcement provisions and discretionary processes for deviating from fence requirements in lieu of the amnesty program originally proposed.  Staff envisions the standards not as interim standards, but rather as the new fence and wall standards for the City.  As discussed further below, the Blue Ribbon Task Force, if appointed by the Council, would be tasked with reviewing the standards several months after their adoption and making recommendations for changes, rather than participating in the development of new standards.  Although the standards would not be interim standards, they could be changed by the Council following recommendations from the task force or at any other time, just as with any other zoning standard.

Proposed Standards

Staff notes that this report to the Council has not been noticed as a public hearing, and staff is not recommending that the Council adopt standards on January 17.  Staff seeks direction from the Council to schedule a noticed public hearing for as soon as possible so that the Council may take action to adopt new standards.

The standards that staff recommends the City Council adopt are substantially similar to the standards presented to the City Council on August 16 and in the staff report attached as Exhibit A.  The only proposed differences are related to the amnesty program.  The proposed physical standards are the same as detailed in the report, and are summarized below.

• Front yards: The maximum fence height would increase from three to four feet.  Any portion of the fence higher than three feet would be required to be of open design, such as wrought iron or picket fence.

• Retaining walls: Retaining walls within front yards would be limited to four feet in height per section, with a step-back equivalent to the height required between each vertical section.  A garden wall or fence on top of a retaining wall would be limited to three feet and required to be of open design.

• Hedges: Hedges within 10 feet of a public right-of-way would be subject to the same height limitations as the fences in the respective yard.  Trees planted within 10 feet of a public right-of-way would be required to be planted a minimum of eight feet apart on center.

• Arbors and pergolas: These features would be limited to a maximum size of eight feet high, five feet wide, and two feet deep, with no more than one feature per street frontage.

• Fence and wall ornamentation: These fence and wall enhancements would be limited to a maximum height of one foot from the base and five feet from grade and a maximum width of one foot.  The features would be required to be separated by at least eight feet on center.

• Materials: Chain link, wire, and similar materials would be prohibited from fences in front and street side yards.

• Standalone ornamentation (fountains, art pieces, etc.): These features would be limited to a maximum size of eight feet high, five feet wide, and five feet deep, with no more than two features per frontage.  Features shorter than two feet tall would not count toward the two-feature limit.

• Street side yards in single family zones: The maximum fence and wall height in street side yards would increase from three feet to six feet beginning at the rear of the house and extending to the rear property line.  Existing reverse corner lot limitations would remain unchanged.  This change would not apply to multiple family residential zones.

• Height measurement: In single family residential zones, height would be measured from the abutting ground surface at the center point of the fence or wall horizontally, and no portion of the fence or wall could exceed the maximum height by more than eight inches at any given point.  In multiple family residential zones, height would be measured from both the abutting ground surface and the average grade of the lot.  In front and street side yards, the maximum height would be four feet above average grade and five feet above the abutting ground surface.  In other areas of the lot, the maximum height would be eight feet above average grade and 10 feet above the abutting ground surface.

• Corner cutoff provisions: The existing corner cutoff provision for street and alley intersections would be retained, except that the height limitation would be increased from three feet to four feet to be consistent with the new fence height limit.  A new corner cutoff provision would be added for the intersections of driveways and sidewalks, with a five-foot triangle clearance area required.

An apparent misconception by residents in attendance at the August 16 public hearing was that the proposed standards would be more restrictive than existing standards.  Staff notes that this is not the case.  The proposed standards allow taller fences and walls than do the current standards and would substantially increase the flexibility that homeowners have in placing fences, walls, and other objects in their front and street side yards.   The Code does not currently have size limitations for features such as arbors and pergolas because such features are prohibited in front and street side yards under current Code requirements.  The proposed standards would explicitly allow such features with some limitations to provide homeowners with more flexibility in furnishing their yards.

Permitting and Enforcement

Beyond the physical standards for fences and walls, staff�s recommended approach differs from the August 16 recommendations.  On August 16, staff recommended the establishment of an amnesty program.  Under the program, fences in front and street side yards over six feet tall would be required to be brought into conformance with Code requirements within one year of the adoption of the new fence and wall standards.  Fences between four and six feet tall would be required to be brought into conformance within three years.  The purpose of the amnesty program was essentially to delay enforcement of the new standards by providing homeowners with up to three years to bring their fences or walls into conformance with the new standards.  As with current practice, enforcement under the amnesty program would not have been proactive, and would have been in response to complaints only.  For example, if a complaint were submitted against a fence between four and six feet tall within three years after the effective date of the ordinance, the property owner would have until the end of that three-year period to bring their fence or wall into compliance.  Complaints submitted beyond the three year period would be subject to normal enforcement timeframes.  As an alternative to altering the fence, homeowners would always have the option of applying for a variance to seek approval to deviate from the Code requirements.

After further consideration of this issue, staff is recommending an alternative approach to simplify enforcement and to allow increased flexibility for fences over the height limits prescribed in the Code.  During Council deliberations on this issue, some Council members indicated that fences over four feet tall were not necessarily a problem, depending upon the design of the fence, the neighborhood impact, and any safety concerns that might arise from the placement or design of the fence.  Rather than delaying enforcement as the amnesty program would have done, staff believes that a better approach would be a tiered enforcement program, coupled with a special permitting program to allow fences over four feet tall.

Staff is proposing that fences in excess of the heights prescribed by the Code be allowed when appropriate through a discretionary permit process.  A �minor fence exception permit� would be required for fences in front or street side yards between four and six feet tall.  The permit would be similar to an administrative use permit: the decision to approve or deny the permit would be made by the Community Development Director with public notice, and the decision could be appealed to the Planning Board and City Council.  A �major fence exception permit� would be required for fences taller than six feet.  The permit would be similar to a variance: the decision to approve or deny the permit would be made by the Planning Board following a noticed public hearing and could be appealed to the City Council.  Rather than traditional administrative use permit and variance findings that are generic and could be difficult to apply to fences or walls, the new permits would have findings to specifically address fences and walls dealing with issues such as aesthetics and visual impact, safety, and neighborhood character.

The proposed permits would work together with a tiered enforcement strategy that would consider the impact of existing walls on the public health or safety.  The permit requirements would apply to all new fences and walls in front and street side yards over four feet erected after the effective date of the ordinance, but would apply only in certain situations for fences and walls already existing on the effective date of the ordinance, as follows:

Fences and walls erected prior to the ordinance effective date:

• Between four and six feet: Upon submittal of a complaint, the fence or wall would be inspected to determine if it posed a hazard to the public health or safety, based upon specified criteria such as sight clearances for driveways and street corners and structural integrity.  If it were determined to pose a hazard, the fence would have to be modified so as to no longer pose a hazard, not necessarily to full comply with Code.  If the homeowner desired not to modify the fence or wall, they could apply for a minor fence exception permit to legalize it.

• Over six feet: Upon submittal of a complaint, the homeowner would be required to modify the fence or wall to be consistent with the Code, or receive approval of a major fence exception permit.

Fences and walls erected after the ordinance effective date:

• Between four and six feet: Such fences or walls would be permitted only with approval of a minor fence exception permit.  Upon submittal of a complaint, the homeowner would be required to modify the fence to be consistent with Code, or apply for a minor fence exception permit.

• Over six feet: Such fences or walls would be permitted only with approval of a major fence exception permit.  Upon submittal of a complaint, the homeowner would be required to modify the fence or wall to be consistent with Code, or apply for a major fence exception permit.

One challenge with this enforcement approach would be establishing the date that a fence or wall was erected, since the enforcement approach would be based upon whether a fence or wall was in existence on the date the ordinance was adopted.  As noted above, the City does not require any type permit for fences and most walls, and as such there is no official City record to establish the date that a fence or wall was constructed.  However, staff believes that adequate evidence would be available on a case-by-case basis to determine the date that the fence or wall was erected, including the condition of the fence or wall and photographs provided by the homeowner or complainant.

Blue Ribbon Task Force

In calling for the creation of a Blue Ribbon Task Force, several Council members expressed their desire for the task force to be composed of residents from all areas of the City of Burbank, including but not limited to the hillside, Rancho, Magnolia Park, and Media District areas.  The Council also wanted the task force members to represent different professional backgrounds that could provide insight into fence issues, including but not limited to architects and landscapers.  The documents attached as Exhibit B include a list of the residents that have applied to serve on the task force and a map showing their residence locations.  The professional backgrounds of the applicants include realtors, a retired landscaper, an attorney, a medical technician, an architect, a business consultant, and a motivational life coach.

Staff believes that each of the task force applicants individually would be a valuable asset to the fence task force and would provide useful input regarding this issue.  However, staff is concerned that the current pool of task force applicants may not fully represent the interests of the various neighborhoods in the City and may not have the varied backgrounds required to provide the wide range of input necessary for consideration of this issue.  Given the apparent low levels of community interest in participating in the task force based upon the relatively few applications received, staff is concerned that recruiting an adequate and balanced applicant pool may not be possible.

In order to solicit the most community input from the most diverse group of Burbank residents, staff believes that community meetings are a better approach for this type of issue than a Blue Ribbon Task Force.  Community meetings were used successfully with the single family, multiple family, and hillside development standards as a means of sharing information with the public and soliciting input from residents.  The community meetings provided an opportunity for residents from across the City to ask questions of staff and share their opinion about the standards being proposed by staff.  Although the community members were not involved from the beginning in crafting the proposed standards, their input was taken seriously, and some revisions were made to the standards as a result of input received at the community meetings.

Staff recommends that the Council proceed with adopting the new standards described above and direct staff to conduct a series of community meetings approximately six months after the new standards take effect.  This would provide time for staff to gain some experience in administering and enforcing the new standards and to see how the standards work in practice.  Residents would then have an opportunity to provide input on the standards after seeing them at work, and perhaps having dealt with them on their own property.  In addition to seeking input on the standards themselves, staff would seek input on the findings required for approval of the discretionary fence permits to determine if the criteria are adequate and appropriate.

If the City Council wishes to pursue the creation of a Blue Ribbon Task Force, staff would recommend that the Task Force serve the same function as would the community meetings.  The task force would be convened about six months after the adoption of the new standards.  The group would review the standards and the findings for the discretionary permits to determine their effectiveness and appropriateness and make recommendations to the Planning Board and City Council on needed changes.  Although the standards would not be interim standards, the Council would be free to make any desired changes to the standards following a noticed public hearing.

FISCAL IMPACT:

Adopting the proposed fence standards would have a minor impact on staff resources.  Although the scope of the new standards is somewhat greater than the current standards, they would not require much additional staff time to administer.  As proposed by staff, enforcement would continue to be in response to complaints only with no proactive enforcement, so no additional code enforcement staff time would be required.  Some additional Planning staff time would be required to process applications for the proposed fence exception permits.  Although the minor fence permit would be subject to administrative approval, public noticing would still be required, with the possibility for appeal.  The impact on staff resources would depend upon the number of permit applications received.  Staff currently processes very few variances for fences or walls, with perhaps only two or three applications received per year.  Since the process and findings for a minor fence exception permit would be easier relative to a variance, staff expects that the number of applications would be greater.  It is difficult to estimate how many applications would be received; the number may also depend upon the amount of enforcement activity.

A more substantial amount of staff resources would be required if the Blue Ribbon Task Force is created and/or if community meetings are held.  A Blue Ribbon Task force would likely meet at least once a month for several months.  At least two or three staff members would be present at each meeting, and perhaps more at some meetings depending upon the topics being discussed.  Substantial staff time would also be required for meeting preparation and follow-up activities including preparation of agendas, handout materials, and meeting minutes.  Community meetings would require less staff time overall, since there would probably be fewer meetings in total.  However, considerable staff time would still be required to prepare handouts and other materials for the meetings, prepare and distribute meeting announcements and advertising materials, and attend the meetings.  For the single family development standards, staff retained the services of a consultant that specialized in meeting facilitation and graphical recording of discussion items.  The cost to the City for the facilitation and recording of two meetings was about $8,000.

CONCLUSION:

Staff believes that adopting new fence standards immediately and utilizing the community meeting process to identify any necessary revisions is the best way to address the fence issue.  The fence standards issue has come to the forefront numerous times over a period of many years without resolution.  Staff believes that the proposed standards provide an opportunity to add considerable flexibility to the existing standards and better reflect the manner in which people are improving their yards today.  The community meeting process could be utilized to solicit broad input from the community as a whole and identify any areas of the new standards in need of revision.  Given the low number of applications received from residents interested in serving on the Blue Ribbon Task Force, staff believes that it may not be possible to assemble a task force at this time that would adequately represent all community interests.

Staff recommends that the Council immediately move forward with a public hearing.  This hearing would likely be scheduled for mid- or late-February, depending upon the Council�s direction on two related matters.  If the Council wishes to proceed with a public hearing to adopt new standards, staff seeks further direction on the following issues:

• Public noticing: For the August 16, 2005 hearing, the Council directed staff to provide notice to all single and multiple family residential property owners in the City.  Staff mailed over 22,000 notices to every residential property owner, at a cost of almost $8,000.  Staff also mailed notices to every real estate broker with a Burbank business permit.  Staff seeks direction from the Council on whether to provide the same level of noticing for the public hearing.  Staff notes that the proposed standards related to the height and size of walls are the same as those for which notice was provided in August; only the amnesty and special permit provisions are changed.  As an alternative to noticing every residential property owner, notices could be mailed to those residents that spoke at the August 16 hearing and others who have previously provided input on this issue.

• Planning Board consideration: Per the Burbank Municipal Code, the Planning Board is required to hold its own public hearing and provide recommendations to the City Council for all zone text amendments.  The Planning Board held a public hearing in June 2005 to consider the fence ordinance then proposed by staff.  If the Council wishes to proceed with adopting the revised standards as proposed, staff seeks direction from the Council on whether to first hold another public hearing before the Planning Board for them to consider the changes to the amnesty and enforcement provisions and the new discretionary permits.  It is not uncommon for zone text amendments or other projects to change slightly in scope between the Planning Board and City Council hearings.  The proposed standards related to height and other physical aspects of fences and walls are the same as those already considered by the Planning Board.  Staff believes that the scope of the amendment has not changed substantially enough to require re-consideration by the Planning Board.  However, the Council may wish to seek input from the Board on the new enforcement and discretionary permit provisions, in which case another public hearing with the Board would be appropriate.

RECOMMENDATION:

Staff recommends that the City Council direct staff to schedule a public hearing for the Council to consider adoption of a zone text amendment that would put in place new standards for fences and walls as previously proposed by staff.  Staff seeks direction from the Council on the scope of the public noticing for the hearing, and whether to first return to the Planning Board for further review.  Staff recommends that the Council direct staff to conduct a series of community meetings about six months after the new standards take effect to evaluate the effectiveness of the standards and seek input from the community on their adequacy, in lieu of forming a Blue Ribbon Task Force. 

LIST OF EXHIBITS:

Exhibit  A        City Council staff report dated August 16, 2005

Exhibit B          List of applicants for Blue Ribbon Task Force and map of residence locations

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