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Board of Adjustment waits for new code to make a decision on a fence

Tuesday, October 22, 2019 by Jessi Devenyns

Slow and steady wins the race, and sometimes that requires a case postponement – or two, or three – to successfully acquire a variance.

Such was the case at the Oct. 14 meeting of the Board of Adjustment, where Corey Keller came to request a variance to allow him to increase the height of his fence from 6 to 8 feet in order to permit him to retain the fence at 2205 Remuda Trail.

Keller explained that he had finished the fence this past summer with the support of neighbors. So he was confused when he came home to find a code violation posted on the brand-new fence.

Although board members were unable to find a hardship, which is required to grant a variance from the Land Development Code, they felt compelled to assist him.

The city is currently in the process of revising the Land Development Code, which contains new regulations around fences. “I would like to point out that in the CodeNEXT, next, next, next, that an 8-foot fence is permitted,” said Vice Chair Melissa Hawthorne.

Accordingly, the board considered postponing the case indefinitely. However, time limits on their postponement power would have required Keller to pay an additional $382 re-notification fee if the postponement had no hard deadline. As a result, the board postponed the case until next month, with Board members Darryl Pruett and Don Leighton-Burwell voting against the motion. The board advised Keller to request another postponement prior to the board’s November meeting to prolong the duration of the case and wait for the outcome of the new draft code.

Keller explained that an 8-foot fence was the preparatory step to secure the property for the future installation of a swimming pool. The 8-foot-tall structure also served to block any potential mischief-makers from vaulting over the fence and into the yard. “There’s at least double the foot traffic (on the sidewalk) than we’ve had in the last year,” he said, which has led to an increase in break-ins.

Keller’s reasoning, however, did not resonate with the commissioners, who said that he had not presented a hardship for needing a fence 2 feet above the allowed limit.

“The height you’re asking for would not prevent someone to bust through that,” said Pruett.

Board Member Michael Von Ohlen noted that he did not buy the security argument. “I’m getting up in years and I can climb that fence in a heartbeat,” he said. “I don’t really see a hardship.” Board Member Rahm McDaniel supported that argument, saying that in a quick pull of crime stats on the dais, he saw one police report within 1,000 feet of Keller’s property in the last six months.

Board members warned that if Keller were to come back before them after the postponement and present the same argument, he would not receive his variance. A valid hardship for a fence variance, according to the board, is a health and safety hazard like a pool in a neighboring yard where the fence height would prevent neighborhood children from accessing the yard. The property abuts a city sidewalk which could potentially allow for public access to the backyard.

Though there are no guarantees that Council will approve the current version of the draft code that will permit 8-foot fences, the board told Keller that until a decision is made one way or another, he is free to go and enjoy his fence.

“You got a get-out-of-jail-free card,” said Board Member Von Ohlen.

Photo courtesy of the city of Austin.

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