Council Makes Room for Taller Hedges and Fences

By Gene Williams
Staff Writer

July 13 -- Hoping to remove the thorns from a politically prickly issue, the City Council Tuesday night voted in new regulations to replace a 58-year-old ordinance governing hedges and fences.

The decision will likely cool off a controversy that has been brewing for more than two years during which scores of residents turned out at public meetings to explain why they should be allowed to keep their too-tall shrubbery, or why their neighbors should not.

“This has gone through a very lengthy process,” said Council member Richard Bloom, adding that the effort “has really borne fruit for the community.”

“Not everyone is going to agree,” Bloom added. “This is the kind of issue where we’re never going to get one hundred percent consensus, but I think this is a good and strong compromise.”

The interim ordinance passed Tuesday will likely be modified over the next two years as the City updates its General plan -- a master document that will guide development over the next two decades.

The new regulations retain many of the features of the old ordinance while allowing for greater flexibility.

Fence and wall height limits remain essentially the same, but side and back yard hedges will be allowed to grow taller than the current eight feet.

The ordinance also includes new regulations for terraced landscapes on sloped lots, new provisions for ornaments, safety rails and pergolas, and new procedures to handle complaints and variances.

Existing oversized fences, walls and hedges will be “grandfathered” in under the new rules. But City staff caution that the “grandfather clause” might create difficulties.

In a report to the council Tuesday, staff pointed out that the growing, changing nature of hedges will make “enforcement of future height complaints….problematic.”

For example, in the future it will be difficult to tell a pre-existing “grandfathered” hedge from one that has since grown to “nonconforming heights,” staff wrote, adding that taking an accurate inventory of “grandfathered” hedges “through a registration process or field inspection would involve an extensive effort and likely prolong resolution of the fence and hedge issue.”

The council responded by directing the City manager to come up with simple procedures for residents to voluntarily register their “grandfathered” hedges with the City.
.
The new regulations were passed unanimously, but not until some council members voiced criticism and skepticism.

“What we’re doing is what we’re constantly doing in this city, which is complicating something that doesn’t need to be complicated,” said Councilman Herb Katz, who opposed putting any height limits on hedges.

“We never had problems with this until we went and started investigating,” he added, apparently referring to citations which caught hedge violators off guard two years ago and sparked anger.

“I don’t think we need to have a hedge regulation. Leave it alone!” Katz said.

Council member Bobby Shriver, who entered local politics after his hedges were cited, agreed and suggested that existing safety ordinances might be broadened to deal with hedges that pose quality-of-life problems.

He had spent three hours reading the ordinance, Shriver said, and came to the conclusion that “the enforcement of this thing is going to be a nightmare.”

But the rest of the council disagreed and turned down a motion to remove height limits from hedges.

“I think there needs to be some regulations, and I think what’s been proposed tonight is fair,” said Council member Bob Holbrook, echoing the majority of the council.

Council member Kevin McKeown urged the council to pass the ordinance so that the many residents who came to the meeting wouldn’t go home saying, “Oh my God, we’re going to have another hearing.”

After two hours of testimony and discussion, the measure was passed shortly before 11 p.m.

Here are the details of what property owners can expect soon when the new regulations go into effect:

• Front yard fence and hedge heights will remain at 42 inches.
• Side and back yard fence heights will remain at eight feet.
• But hedges in side and back yards can be higher; once limited to eight feet, they can now grow to 12 feet. Also, no height limits will be imposed on side and back yard hedges adjacent to an alley.
• Variances will be given to extend side and back yard fences and hedges an additional four feet beyond the height limits. Unless a neighbor objects to the variance, the applicant’s fee is $100. If a neighbor objects and the application for a variance needs to be reviewed, the fee goes up to $200.
• Existing hedges that exceed the height limits will be “grandfathered” unless an immediate neighbor can convince the City that they are adversely affected by nonconforming hedge. Those who wish to file a complaint must do so within 60 days after the new regulations take effect The City will be mailing out postcards notifying residents about the time limit. Owners of “grandfathered” fences and hedges will register with the City.
• The front yards of sloped lots may be terraced with retaining walls no higher than 42 inches and at least 42 inches apart.
• Residents may build a guard rail above a 42 inch front yard wall provided it’s for safety reasons and is at least 50 percent transparent.
• Pergolas and similar entrance features will be allowed up to eight feet high and seven feet wide.
• Lamps and decorative objects will be allowed to go 12 inches above the height limits and must be spaced five feet apart.

The last fence and hedge ordinance was adopted in 1947 and seldom enforced until three years ago; that’s when the hedges put their political thorns in the sides of City officials.

Since then, news of the controversy has spread far and wide, including the foreign press, drawn to the comical aspects of something seemingly so trivial being taken so seriously.

It started in 2002 when the council voted to make code compliance a priority and hired additional staff to take on violators. The Planning Department moved away from its longstanding policy of only citing fence and hedge violations after receiving a complaint and began a more proactive approach.

"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.

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

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

One of those cited for hedge violations was Shriver, a Kennedy nephew and brother-in-law to California Governor Arnold Schwarzenegger. Shriver’s frustration over the citation compelled him to enter politics and helped him become the City’s newest councilman.

Last year, the council -- four of whose members were up for reelection -- seemed to feel the heat. In June 2004 it voted to halt enforcement until staff could prepare a study of the ordinance.

Since then, the issue has resurfaced at council and Planning Commission meetings several times, bringing in dozens of residents from both sides of the fence.

In April, the commission advised against making any changes to the old regulations until after the General Plan update is completed near the beginning of 2007. The commission also said that, until then, enforcement should be returned to a “complaint driven” basis.

But in May the council took definite steps to reshape the ordinance and passed three motions to guide development of new regulations. Their direction to staff that evening is reflected in the new ordinance passed Tuesday.

Speaking to the council Tuesday, a resident who had followed the process closely provoked laughter with his analysis.

“I want to thank you guys because I’ve enjoyed this whole hedge process immensely,” he said. “I don’t get out much so this gives me a chance to get to meet my neighbors, and I met all you swell folks, and everything was fun.

“You’ve also shown me that an old theory of mine that democracy is a self correcting mechanism is right.”