Fair to get a fence variance?

fleur222September 21, 2009

I posted this on the deck forum too. Really need some legal advice, I think.

We hired a landscaper to put up an L shaped fence on one corner of our back yard. We love it. Friends and neighbors love it. It was purchased at a local fencing company and the quality is beautiful. It is 4 and 1/2 feet tall with 1 1/2 feet of open spindles at the top. Prior to installation, we questioned the fencing company, the landscaper, phoned the zoning office in town, and looked at the zoning regulations on- line for fencing regulations in our city. What we learned was that fences are limited to 4 feet in height in the front yard, and 6 in the side yard. We placed it in the back and side yard.

Well, Friday, we received a letter from zoning saying that because we are on a corner lot, they consider our side yard to be like a front yard. It does say that somewhere in their regulations, but does not refer to it under the fencing regulations! Of course, we did not know about this prior to installing the fence.

They say that we can try to fight it by getting a variance, but the variance inquiry will cost $135.00 and ALMOST NEVER do they grant it. (according to them) In fact, a neighbor 1 block away just changed his fence for that reason. We did not know about that situation, because there was a change of owners, it was a long time ago that the fence was taken down, and we just assumed it was the new owner's choice. Just recently, he put up a smaller fence.

Our somewhat small section of fencing, cost us thousands! It faces a baseball field, not a house on the part that aligns the street, and does not at all block any view.

Here is the kicker... We came to put up the fencing, because there have been so many accidents in this stretch of road, that we put a small stone wall on the front corner and a fence on the back (to serve as both protection and give us some privacy) In fact we had one car hit our home 3 years ago.

We can go ahead and try to fight it, but I am worried. I love having this beautiful fence to look at, to have some privacy and a little security. There was another accident just days after we put up the fence, and the car came within a foot of the fence. We spoke with the zoning office today and they advised us to go to police dept to get records of the accidents. Just as we reached home, some man came and took pictures of the arrow signs the city police put up after the car hit our house. I am worried that the city zoning will not grant us the variance, because they (the city) do not want to admit that there is a danger. ... liability. What do you think? I am thinking lawyer is the only way.

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A lawyer is going to cost you more than moving the fence.

And a lawyer is likely to tell you that if "side yard" is defined somewhere, that's enough.

That said, I'm having a bit of a hard time picturing this. If you're on a corner lot, it seems that you should have two sides that are arguably "front" yard (the two on the streets forming the corner). And two sides that are arguably "side" yard. (which you might consider the "back" yard). So if you put the fence in the back yard how is part of it in the front yard?

Anyway, it seems to me that you should seek the variance on the ground that calling your side yard a front yard is inequitable because there's no street ther e (or something) and instead is facing a baseball field.

    Bookmark   September 21, 2009 at 4:36PM
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We have a 4' height limitation as well, EXCEPT if the fence is 25' from the easement line. How far from the easement is the fence located?

The neighbor that changed his fence...was he also on a corner lot? If not, then I'd pay $135 and go for the height variance request. If you're appearing in front of a land use hearing officer, bring notorized statements from neighbors saying they have no objections to the higher fence. And take pictures of your property, the fence and the baseball field to the hearing.

When you phoned the zoning office prior to erecting the fence, did they pull up your property by folio number to see the site plan of your lot? Did you mention to them you were on a corner lot?

    Bookmark   September 21, 2009 at 8:12PM
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Thanks for your responses.
Heimert, I think I was underestimating how much a lawyer might cost. I guess our objective is to keep the fence. It does give us some feeling of protection from the traffic and definitely gives us privacy.
It is difficult to explain, but basically if you think of our property as a square with the house facing forward, there is a street in front and a busy street to the right. We placed an L shaped fence in the back right corner.
It is defined "somewhere", but I think we took reasonable steps to find out the rules. What we read is that no permit is required if the fence is not over 4 feet in the front yard and 6 feet in the side yard. How were we to know that someone defined a side yard as a front yard if we have a corner property?
Our "side yard" is on a street which has a baseball field across on the other side. In other words, we are not putting up a high structure for any neighbors to have to face.

Monablair, our fence would have to be moved back to about 60 feet, if I recall the letter correctly, not 25 feet. The neighbor is on a corner lot, but their house faces the busy road, and their fence was in their backyard. I learned today that they argued that the ball field brought players parking on their street and they wanted both privacy and protection from flying baseballs. Denied. One difference for us is we want protection from the busy road.
When we phoned the zoning officer, they did not pull up our property or ask if we were on a corner lot. I did not know it would make a difference, so I did not ask either. They simply told us 4' front, 6' side.

    Bookmark   September 21, 2009 at 9:54PM
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I'd think you should give the zoning variance a shot. As others have suggested, having notarized statements of approval from as many of your neighbors as possible should go a long way to swaying the zoning officer. Along with pictures of your fence, adjoining areas, etc.

I don't see the fence as a means of "protection" being a valid argument. I haven't seen a residential fence that would significantly slow several thousand pounds of moving vehicles.

I also wouldn't try to place the blame on the building department folks. The old, "ignorance of the law is no excuse" comes into play here. The only exception is if you had a permit to install the fence. Then you could argue the building department should have known better.

Good luck!

    Bookmark   September 22, 2009 at 9:27AM
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Yeah, I'd take your shot with the variance, with the advice above for making your case.

There's lots of wacky zoning rules, but I assume that the 4-foot front yard rule is not neighbors but streetscape. The city/town doesn't want high fences along streets, perhaps for visibility perhaps for aesthetics. Fact of it its, your property faces two streets, so has two front yards to which the 4-foot limit applies.

I can understand the frustration, but having both yards considered "front" yards on a corner lot is not out of the ordinary.

(btw, even in a small town chances are a lawyer is going to cost you $50-100 hour minimum, and figuring this out will take at least a couple of hours.)

If you lose the variance, you might consider (a) boulders for protection (b) fast-growing trees for privacy (for example, arborvitae).

    Bookmark   September 22, 2009 at 9:45AM
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Again, thanks for the feedback. It does give me food for thought and helps me to know how others view the situation.

Mike Kaiser, you are right, a fence can not stop a vehicle. (It does give some protection and actually since the fence is white behind the signs showing the curve, seems to help highlight the curve.) Just another argument, I know. And, the most serious part of the road is traffic traveling from the other direction, and we put a stone wall in the front corner of the yard.
As for the permit part, we have taken out permits for building in the past, but this time we were told no permit was necessary as long as we did not put up anything higher than 4 feet in front and 6 in side. Is is supposed to be common knowledge that a side yard is considered a front yard on a corner lot? And what about the MANY others that I have since noticed in the neighborhood that are standing and have been standing for YEARS?
I am still looking for a way to make our situation different from our neighbors. They did take pictures and did have to have neighbors sign to say they didn't care.

Heimert, it now is clear to me that they do mean streetscape. I think they owe it to the homeowners to state that in their fencing regulations and to share that information when someone phones. I think the reason that they do not is that in general, they do not care. The only time they act on these regulations is when a neighbor complains. Unfortunately, I think we were installing ours, and unbeknownst to us, they were fighting theirs and therefore they pointed ours out. It really is frustrating.

    Bookmark   September 22, 2009 at 10:09AM
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No question it would have helped for the permitting office to say "4 feet along the street and 6 feet on the sides and back" or something like that.

I would also take pictures of the neighbor's fences, if they're 6 feet tall (or more). Usually the big concern is that if you let one person do something, then everyone will want to. And they want to keep things uniform. But if everybody else has a tall fence, it's a lot harder to justify not letting you have one.

As for "common knowledge" probably not, but it's not like most towns with zoning regs haven't had to figure out how to treat corner lots, since pretty much every town has a bunch of corner lots. The same issue happens with setbacks--does the house have to be set back X feet from both streets?

    Bookmark   September 22, 2009 at 11:42AM
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Is is supposed to be common knowledge that a side yard is considered a front yard on a corner lot?

I do know that there often setback issues with corner lots that wouldn't apply to a regular lot. I'd be inclined to think that there might be special rules that apply to fences as well. How common is that knowledge? I don't know but I think the zoning officer will say it was your responsibility to fully investigate the requirements.

I'd think that other tall fences on corner lots in your immediate would be a point you'd want to bring up at your hearing.

    Bookmark   September 22, 2009 at 9:52PM
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Yes - the permit office has a bee in their britches...

Two things:

Call your local lawyer referral service. Here in Seattle, when the referral service refers you to a lawyer, the first 30 minutes are only $32. After that - normal rates.

I have used lawyers in the past - and have found them to be an excellent investment. I have also called (yellow pages) lawyers, and received excellent advice - totally and 100% free - over the phone. I have had lawyers tell me this is something we should fight in court, and lawyers tell me this is something to let go, and not fight... The referal system ($32) really lets them look over your specific situation.

2. A few years back - a building contractor here with much influence and money - had a fence which was to high. Which he had just had installed. Being forced to remove, etc. So - he had some DIRT brought in... and changed the 'height' of the fence. After the zoning office was off his back - he removed the dirt...

I have a number of issues with this particular individual because of how he treated a friend's parents - and his other general business practices... but the above is how he solved his excess fence height problem.... You can't help it if your ground slopes upward around your fence...

    Bookmark   September 23, 2009 at 11:44PM
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Dave - that's clever. And she's only talking 6" -- it's not like she needs 3 feet of dirt. I'd think you could almost make that sort of grading unnoticeable.

Any chance (if you try the variance and lose) that you could cut down the open spindles on the top by 6" then reinstall the top railing. I would think a decent carpenter would be able to do that and it would probably be cheaper than a whole new fence.

    Bookmark   September 24, 2009 at 8:28AM
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Oh wait - maybe the OP meant the solid fence is 4.5 ft tall with the 1.5ft of open rails on top of that (meaning a total of 6') -- I can't see the zoning dept falling for THAT much grading.....and cutting down the spindles wouldn't work either. bummer!

    Bookmark   September 24, 2009 at 8:30AM
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Thanks again for the ideas.
Dave 777- Interesting about the grading. It just wouldn't work, but getting lawyer advice sound is something I am interested in.
Ikplatow, the fence is solid 4.5 ft with 1.5 open spindles on top. We could cut down the solid portion, I believe, but it would also mean all new posts, and the posts are cemented in. It would also mean that we would no longer have any privacy in the back yard. Our home is kind of on a curve and the street on the side is busy.
I have a meeting today with the zoning officer to take the next step in the procedure. Hopefully that will go well and maybe I can learn something helpful.

    Bookmark   September 24, 2009 at 11:58AM
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No luck. City zoning enforcer did nothing but reinforce my belief that the city policies are messed up. There are so many homeowners with 6 foot fences on the corner and they are allowed to keep them as long as no one complains. Stupid way to serve the people. Or should I say serve the 50 year old rule that is not clearly defined in the book, and selectively reinforced to the letter of the law rather than the spirit of the law.
She said everyone who has ever applied for a fence variance for a 6 foot fence on a corner property has been denied the variance. Then, she also said that the homeowners down the street from me are so angry that they were denied, that they go to the zoning hearings for other people and protest, so no one else can get one either. YIkes, get a life!
This zoning officer is the lucky lady who gets to decide who gets to keep theirs and who doesn't...(Wow, what a job!) Just goes to reinforce my experience with this town all along. Everyone is working their tail off to try to make alliances with someone that they think has either power or money.
I don't want to play their game, so I may just change the fence as a way to opt out of this town's craziness!

    Bookmark   September 24, 2009 at 8:49PM
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first go check the ordinance. I don't believe you can have two front yards. Here, if you have a corner lot, the front yard is the area which has the longest length. Just double check with the powers that be, there maybe some real small print that they are over looking. Secondly, get a list of all the other fences and their locations. Thirdly, get a petition of neighbors that live within 600 feet of the property. If they all say its ok, then go for the variance. Once a precedence had been set it can be difficult for the City to not grant the variance.

    Bookmark   September 25, 2009 at 7:20AM
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Welcome to small town living. We lived in a village for 28 years and were still considered newcomers when we left. Our house was still known by the previous owners name.

    Bookmark   September 25, 2009 at 9:37AM
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Bmmalone, it is correct about the two front yards. I read about it, but it isn't stated directly in the fence section. Anyway, I am writing a letter to ask for a 60 day extension. I vascillate between wanting to fight the inequity and thinking we should just go ahead and change it some. She will have this position for awhile. She also has a positon with the police dept and is running for city clerk. In other words, she has some authority, not sure if I can afford to fight her and those that will support her. Wish all neighbors would agree, but unfortunately I learned that the neighbor who lives down the street and had to change their fence is so angry and bitter that they proactively work to fight others getting a variance. They are friends with neighbors in our 200 ft circle that we would be required to notify. Things just aren't looking good for fighting this thing.
Hendricus...as an army brat, I did not know of this small town mentality. It is for real.
Today, my son is ill and looks like it will be awhile before he will be feeling better, so I will shift my focus.
Thanks for all of your responses. I am sure it will all work out!

    Bookmark   September 25, 2009 at 1:15PM
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was a permit not required for the fence? if so, why did they not catch it in both your plans and your inspection? i wonder if the problem is tha tyou put a fence with no permits and now they want to get crappy. if this is teh case they can make you tear the whol thign down and start from scratch.

    Bookmark   September 27, 2009 at 1:31PM
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Davidandksasie...No permit is required for a fence in our town. I am sure that this is part of the confusion for homeowners. Then when I asked prior to putting up the fence, I was told that I could put a 6 foot fence up in my side yard. How was I to know that the city has an exception to this rule if the homeowner lives on a corner lot?

I had a meeting a few days ago with the zone enforcement officer. She told me that if she saw a wooden fence 6 feet tall on a corner lot that looked like it had been there for a long time, she would not do anything about it. Ours is white, but what is the difference? They are allowed their privacy and we are not? They are allowed Years of privacy and we have only had our fence up about 2 months.
I still haven't found a way to fight this thing. She now says it will cost over 200 dollars to fight it and the Zoning Board has a 0% rating of granting a variance, even if the homeonwers apply for the variance prior to putting up the fence. I know someone who said he did a study about the % of times this Board grants a variance. He said it was in general 75%. What gives? Mostly they grant variances, but never for a fence, and yet many are still standing. So it looks like this zoning officer just picks and chooses who has to take their fence down, but certainly only a few, of the many.

My neighbor down the street once put an above the ground pool in her yard, without a permit (and it is required). It was too close to the neighbors house for the proper spacing. She applied for a variance, and got it without any problem. She did not have to move her pool.

    Bookmark   September 27, 2009 at 3:07PM
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I donÂt know where you live but in my county I got a variance after I claimed it would be discrimination against me when they had allowed so many others what they were denying me. I would take pictures of all the other fences you have seen and have a lawyer write a letter stating if they intend to discriminate against you and not give you the same privilege they had given others you would have no other recourse but to sue.

    Bookmark   September 28, 2009 at 12:29AM
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Partst, thank you so much for your response.
Just this morning, as I took a walk around in my neighborhood, I saw another 6 ft fence on the corner. That is about the 5th one I have seen probably within a mile of my home, which I have come across in the last few days.

The zone enforcement officer's comment that she would leave it alone if it was wood, blended in, and looked like it had been there awhile, made no sense. It is a situation where they think it is okay to deny a variance when it comes to their attention, but I say....too late....they have already allowed these other homeowners to have their fences up for YEARS... they have already given them a variance, and now I am getting mine.

It is discrimination, and I just have to learn how to go about it. They think that they have to disallow any that come before them or they will get sued, but the fact is, they are already discriminating, and should get sued if they don't stop. I hope I can be the one that stops it.

I felt determined today and your response Partst, is helping to reinforce what I know is right. I am not taking down my fence! It is beautiful, it gives us some privacy and some sense of security from the traffic issue, and MANY other people have fences up just like mine. (even closer to the road, closer to the corner, and the same color, style) Plus, it makes no sense to say that you can put up 20 feet tall trees, but not a 4 1/2 foot privacy fence with 1 1/2 foot spindles on the top for a few feet of one's property.

    Bookmark   September 28, 2009 at 11:29AM
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Is there any procedure for challenging the denial of a variance?

In some towns there's a zoning board or something. In others, you may be able to challenge it in court.

Perhaps that's worth considering, especially if you can marshal evidence that there are numerous exceptions, which could show the enforcement of this zoning rule is arbitrary and irrational.

    Bookmark   September 28, 2009 at 4:09PM
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BTW, if you lose I would complain about every other fence you find that is in violation.

Not to be a jerk or spoiler but instead it would force the town to enforce the rules against everyone. Then when you have 6 or 8 or 10 people all mad that they're being forced to remove their fences there's some greater chance to put pressure on the town to change the rules. If it's only one person at a time, it will be different.

    Bookmark   September 28, 2009 at 4:12PM
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I wrote a letter today asking for a 60 day delay. She said she would grant it. I hope she does what she said. It will give us time. I want to enjoy my fence longer. Maybe I can work on changing the way the regulation reads or something and not even have to apply for a variance. I feel like if I do what my neighbors did and apply for a variance, beg for a variance, give 1000 reasons for a variance, I will still lose. I feel like the answer may come by organizing neighbors or meeting with the right official in town, or finding a new house or something!!!! Wish me luck and I wish all of us luck in no more home disasters!!!

    Bookmark   September 28, 2009 at 5:24PM
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know someone in a similar situation...just wondering whatever happened.....

    Bookmark   May 20, 2011 at 3:58PM
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You need to see a lawyer. If you want to have any chance of keeping your fence, invest a few hundred bucks in a lawyer. It might cost less--at a bare minimum, just call a few real estate/zoning lawyers in your area and talk to them for a few minutes to see which one seems the most helpful, and then pay for half an hour of that lawyer's time to have them give you some guidance on what to do. That shouldn't cost more than $150 and may well cost a good deal less.

Please see one soon. It is a lot easier for a lawyer to tell you how to get things done properly beforehand than to fix things afterwards. What I mean is it's a lot easier to GET a variance in the first place (which a lawyer may be able to do if you talk to them before you go before the zoning board) than to overturn a zoning board's decision to DENY you a variance (which, it sounds like, is probably what would happen if you went before the board yourselves without legal help).

    Bookmark   May 26, 2011 at 11:32PM
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