13-D
FROM: Mayor
Bloom and Councilmember Genser
Request of Mayor Bloom and Councilmember Genser
that staff provide an update on the hedge ordinance revisions and that the City
Council direct staff to incorporate the following ideas and principles into the
draft revised ordinance for public comment:
In the course of recent
enforcement of the City’s
fence,
wall, hedge and flagpole ordinance, it has become
clear that new standards and new procedures are needed. Prior city enforcement efforts have not met
with our community’s high standards that callexpectations of effective
communication of fines and focusing
first on warning and education and warnings. It is also clear that our current hedge standards
are outdated and need revision.
Several general ideas merit clear council direction:
1. Hedges are part of the green fabric of the city and, like trees, produce positive benefits for residents and our environment
2.
Unless necessary for public safety, the city ordinance
should not cause the removal of large, old growth hedges and trees. (“old
growth” shall be defined by the council based after hearing from the Community
Forester.)
1. The
criminal process should never be used in the first communication between the
city and residents. First communication
should be used to educate the property owner and provide a reasonable timeframe
within which to comply. A criminal
process should only be used after repeated disregard of enforcement
efforts.
1.The
city should not threaten residents with threats or imposition of unreasonable
daily fines.
.
4. A reasonable, fair and constitutional enforcement process must be used.
The specific items of
the pledge to be included in the new ordinance are:
The ordinance should provide that a property owner with a
nonconforming hedge
existing as
of a date certain (suggested: July 1, 2004) may apply for “grandparenteing”.d” Grandparented status will be granted unless a
contiguous neighbor can establish the ongoing presence of the hedge causes
direct adverse impacts to the contiguous property.
After hearing from staff
and the public, the council should consider whether the new
ordinance should allowestablish new, specific heights for hedges
“as of right” that are higher than the current height limits. Different height limits should be considered
for each of the following circumstances:
q Rear Yards adjacent to an alley.
q Rear Yards adjacent to a street.
q Rear Yards adjacent to another property.
q Side Yards adjacent to an alley or street.
q Side Yards adjacent to another property. [MC1]
After hearing from staff
and the public, the council should consider whether the new ordinance should
allow specific heights for fences and walls “as of right” that are higher than
the current height limits.
Different height limits
should be considered for each of the following circumstances:
qRear
Yards adjacent to an alley.
qRear
Yards adjacent to a street.
qRear
Yards adjacent to another property.
qSide
Yards adjacent to an alley or street.
qSide
Yards adjacent to another property. [MC2]
The new ordinance should allow unlimited height adjustments
for hedges, fences and walls in side and rear
yards if the owners or and occupants of contiguous properties do not
object. (See
example procedure, below.) Fences and walls have different aesthetic
characteristics than hedges and should be considered as a separate category for
purposes of setting maximum height limits.
The ordinance should establish
standards for allowing arbors, pergolas and similar structures to exceed the
current front yard height limit.
[MC3]CONTIGOUS
NEIGHBOR NON OBJECTION – EXAMPLE PROCEDURE
The Council should
request that staff comment on and consider a procedure substantially similar to
the following:
A resident may establish
non objection from a contiguous owner or occupant by filing a form with the
city. The city will send notice to the
contiguous owner/occupant allowing up to [MC4]60
days for an objection to be received by the city. If no objection is received during that time, concurrence will be
assumed, no hearing is necessary, and further objections will not be
considered. If a timely objection is
received, the matter shall be considered according to the adjustment process
outlined below.
The ordinance should provide
that property owners may apply for an adjustment to allow hedges in front, rear
or side yards to exceed the “as of right” limits. Criteria for granting an
adjustment should include:
o
(a) high traffic levels
o
(b) high noise levels
o
(c) ongoing presence of loitering individuals
o
(d) lack of reasonable privacy
o
(e) unsafe conditions
FEES
Fees for processing
hedge height requests should be modest, and not based on cost recovery.The
council should require that application fees
be modest[MC5].
The
ordinance should provide that:
qThe
city send notice to contiguous (ie. properties that adjoin a property on the
side or sides with a hedge/fence/wall for which an adjustment is requested)
property owners and occupants via a method intended to provide reasonable
notice, such as Certified Mail.
qA time
certain, such as up to sixty days, be allowed for the contiguous property
owners or occupants to object in writing to the requested adjustment.
qAny
such objection should be required to state the grounds for the objection. The objection stated should be strictly
related to the grounds listed in the application, or demonstrate a substantial,
direct adverse impact on the contiguous property, such as excessive shading or
excessive tree droppings.
qIf no
objection is received by the city during the time specified for response, the
application will be granted as a matter of right.
qIf an
objection based on stated grounds is timely received, a hearing date will be
set. At that hearing, the application
for Adjustment and objection(s) thereto would be considered by a zoning
administrator or other appropriate city official.
In the event a front
yard adjustment is requested, property owners or occupants living within a
designated distance from the subject property should be allowed to appear.
qThe
hearing officer grant an Adjustment upon a reasonable showing of specified
criteria that would be improved by the granting of the Adjustment. These criteria could include:
o(a)
high traffic levels
o(b)
high noise levels
o(c)
ongoing presence of loitering individuals
o(d)
lack of reasonable privacy
o(e)
unsafe conditions
The
hearing officer may grant modifications where the modifications are reasonably
related to the grounds upon which the adjustment is sought and where the
modifications are deemed substantially necessary by the hearing officer.
qIf the
hearing officer finds there has not been a reasonable showing of any of the
required criteria, or finds a substantial, egregious, direct adverse effect on
a contiguous property, the adjustment may be denied.
qThe
zoning administrator’s decision may be
appealed to the Planning Commission.
The ordinance should
provide that property owner with a nonconforming hedge [MC6]that existed as of a
date certain (suggested: July 1, 2004) may apply for “grandparented” status by
filing an application with the city within six months of the adoption date of
the new ordinance. Application fees
should be modest.
The ordinance should
provide for an application process with notice to the contiguous owners and
occupants, ability to timely file criteria based objections and hearings that
are substantially similar to that set forth above.
Criteria for
grandparenting decisions could include:
qThe age
of the hedge.
qThe
length of residency of the person seeking the status.
qThe
length of residence of the objecting neighbor in relation to the length of
existence of the hedge.
qThe
history of prior complaints, or lack thereof.
For the purposes of this
provision, “contiguous property” should be considered to mean properties that
adjoin a property on the side or sides with a hedge for which grandparented
status is requested.
The revised ordinance should provide that the City may decrease the allowable height if it determines that a hedge creates a safety hazard. A provision should be established to allow a property owner to appeal a safety determination of the City.
[MC1]We had agreed on 15-ft. It wouldn’t make any sense to allow a higher “as of right” on side yards (where houses are closer) than rear yards (which are farther apart.)
[MC2]We had agreed on 15-ft. It wouldn’t make any sense to allow a higher “as of right” on side yards (where houses are closer) than rear yards (which are farther apart.)
[MC3]I strongly disagree with allowing unlimited height walls/fences if adjoining neighbors agree to them. They will have an adverse visual impact on the entire neighborhood. The 10-ft max height by adjustment is plenty!
[MC4]We agreed to 60-days. I think this approx. time period is necessary in case owner/occupant is on vacation. Don’t forget, if they don’t respond, they loose their rights to object in perpetuity.
[MC5]This is the language that we agreed to.
[MC6]We agreed last night that this would only apply to hedges.