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BoA debates fences and pool safety

Wednesday, May 1, 2019 by Jessi Devenyns

Barring a handful of exceptions, fences in Austin are generally 6 feet tall. A fence may exceed that standardized height, however, if “a structure, including a telephone junction box, exists that is reasonably likely to enable a child to climb over a 6-foot fence and gain access to a hazardous situation, including a swimming pool,” according to city code.

Property owners Sandra and Luke Wilson of 3004 Bonnie Road came to the April 8 meeting of the Board of Adjustment to argue that their corner lot presented a situation entitling them to an 8-foot fence variance that would allow them to keep their current fence, which is slightly over 6 feet and encloses a yard containing a swimming pool.

“If the fence was lower, you could definitely pull that limb down to get over the fence,” Sandra Wilson said. “The fence is what blocks it.”

Although many of the commissioners found this to be a valid argument, the commission voted unanimously to postpone the hearing to the May 13 meeting to give the couple an opportunity to phrase their hardship in a way that responds to the variance requirements within city code as well as bring a clear photograph of the tree and current fence to prove their claim. According to Board Member Melissa Hawthorne, “If you’re going to use that limb, you’d better bring a good picture of that limb.”

As presented, the couple’s case for the variance is based primarily on an endorsement from their neighbors. With only a half-baked argument for why a dangling tree limb necessitated a variance for an 8-foot fence, the Wilsons focused on the fact that 23 out of 26 neighbors within a 300-foot radius of their house support them keeping their fence. Of those who did not sign their consent, “two were just long-term renters and one of them had actually just passed,” explained Sandra Wilson.

Even with the support of the direct neighbors, Blake Tollett, who sits on the Historic Landmark Commission but who came to speak on behalf of the West Austin Neighborhood Group, expressed his and the neighborhood association’s opposition to the request. “This sets a precedent. Just because you’re on the corner and you have a water element doesn’t – at least in my mind and the neighborhood association’s mind – this doesn’t guarantee that you get a variance,” he said.

The variance request resulted from the miscalculation of the couple’s homebuilder, who constructed a fence that from the exterior averages 7 feet, 2 inches. Although the couple said that the builder took full responsibility for the error and would reconstruct the fence at no cost to them, they wished to retain the current construction.

“If we were one lot over we would be able to have 8 feet on all three sides, better protecting us from liability and keeping the children in the neighborhood safe,” Luke Wilson said. “We’re kind of unfairly penalized and only allowed to have two sides up to 8 feet.”

Chair William Burkhardt pointed out that there is a reason corner lots have lower fence lines, especially when a property slopes upward from a curb. “The city could put in a sidewalk at any time and then that fence could all of the sudden be 8.5 feet tall,” he said.

With a directive to reword their hardship and provide new photo evidence of the tree and its potential liability to neighborhood children who might climb into a yard with an unsupervised pool, the board postponed the case for another month. Board members Rahm McDaniel and Kelly Bloom were absent.

Photo courtesy of the city of Austin.

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