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Planning Commission Won’t Be Fenced In

By Gene Williams
Staff Writer

April 7 -- Taking up the prickly subject of fences and hedges, the Planning Commission Wednesday night unanimously recommended that restrictions on boundary wall and shrub heights not be changed, at least not anytime soon.

But don't expect a blanket of citations to go out to violators in the mean time.

Noting that a line of tall cypress or ficus trees aren't always a bad thing, the commission asked that enforcement be returned to a "complaint driven" basis and that neighbors be allowed to decide how tall is too tall, only bringing the City in to solve disputes or clamp down on violators as a last resort.

"The regulations we have as an underlying code may be fine," Commissioner Gwynne Pugh told his colleagues, adding that enforcement should be flexible enough to let neighbors decide when an exception is acceptable.

"Let's work it out neighbor to neighbor," he said. "But let's have the underlying rules when it doesn't" work on that basis.

Commissioner Arlene Hopkins agreed. "Let's take a giant step back," said Hopkins. "The Government that governs best governs least."

Commissioner Terry O'Day said he was comfortable with this broad approach to a complex issue.

"If we delve into this complexity now we could easily bury ourselves," said O'Day, who also agreed that the key to solving the problem lay in how the ordinance is enforced and how variances are granted.

The decision came after nearly three hours of discussion and testimony from residents on both sides of the fence explaining why they should be allowed to keep their oversized vegetation -- or why their neighbors should not.

The current height limits of 42-inches in front yards and eight-feet in side and back yards, the commissioners decided, should stay in place until the update of the City's General Plan, which will guide future development, is completed some 18 months from now.

The commissioners passed the motion after coming to a general agreement that a one-size-fits-all approach won't work and that the issue needs to be addressed on a case-by-case basis.

The appointed body also recommended that the City Council consider a variety of issues that include sustainability, development of the green canopy, occluded views and sunlight, fence transparency and the role of pergolas when making future decisions.

Commission Chair Barbara Brown said it was premature to consider changes to the 58-year-old ordinance.

"We don't even have the preliminary report from the citizens about their vision," said Brown, referring to information gathered from residents at General Plan workshops. "We shouldn't be having to deal with this now."

The appointed body was being forced to deal with it "largely for political reasons," she added.

The once obscure ordinance has been a thorn in the sides of City officials for several years now and helped launch the political career of City Council member Bobby Shriver.

"Everyone knows what happened in the last three years," said Commissioner Jay P. Johnson.

The 1947 ordinance was seldom enforced until after 2002 when the council voted to make code compliance the number one budget priority in the Planning Department and additional staff was hired to take on violators.

In an effort to apply the law evenly and fairly, the department moved away from its longstanding policy of only issuing violations after receiving a complaint, and began a more proactive approach.

In the Spring of 2003 the City began sending out hundreds of letters telling folks to cut their shrubbery or face stiff penalties, in some cases as much as $25,000 per day.

"A main principal of enforcement is that it has to be fair and even handed," City Attorney Marsha Moutrie told The Lookout last year.

"When the issue is aesthetic it becomes harder for people to understand why you have to enforce the law for everyone, but it still has to be enforced fairly if it is going to be enforced at all, like any law," she said.

The letters spawned an angry backlash from residents who formed citizens groups -- at least one of which tapped into funds from business interests to fight City Hall -- which blasted the City bureaucracy and the SMRR majority on the City council in particular.

The pressure on the council members -- three of whom were up for reelection -- seemed to work. In June of last year the council voted to halt enforcement until staff could prepare a study of the ordinance.

On Wednesday staff presented the Planning Commission with a six page report and asked the commissioners to come up with recommendations to the council regarding what defines a hedge, what are acceptable height limits, when exceptions should be made and whether or not existing oversized fences and hedges should be “grandfathered” in.

The recommendations will now go to the council, which has not yet scheduled a date for a hearing.

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