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A
New Castle City Board of Adjustment Continued Hearing took place on
May 7, 2009 at 7 p.m. in the City of New Castle’s Town
Hall.
Present: Mayor
John F. Klingmeyer
Roger A. Akin, City Solicitor
David Athey,
City Engineer
Mayor
Klingmeyer called the meeting to order at 7:10 p.m. He introduced
City Solicitor Roger Akin and City Engineer David Athey.
The
Mayor read the Notice of Public Hearing that states, “An
application has been filed by Paul J. and Deborah L. Freebery, 213
Baldt Avenue, New Castle, Delaware 19720, requesting a variance to
permit the construction of a 6 foot solid fence with a 0 foot front
yard setback along 13th
Street on their property at 213 Baldt Avenue, New Castle, Delaware,
known as tax parcel number 2100700179.
For
the purpose of considering this application, the Board of Adjustment
will continue a Public Hearing on Thursday, May 7, 2009, at 7 p.m. in
Old Town Hall, 2nd
Floor, located at 2nd
and Delaware Street, New Castle, Delaware.”
An
affidavit of publication in the News Journal was published 3/25/09
and the New Castle Weekly on 3/26/09. The completed application has
also been submitted.
(Mr.
Freebery was reminded that he is still under oath.)
Mr.
Jeff Bergstrom confirmed that the property was posted in accordance
with the law. The notice for the original hearing did not state the
variance request for the fence itself, it didn’t call a
variance for the setbacks for the deck itself that is attached to the
house, and it did not call for a variance request for another matter
that was withdrawn by the applicant. Without proper posting of the
fence variance the Board could not hear it at the last meeting. The
hearing was continued until this evening.
Using
a graphic picture showing the proposed deck, shed and lot, Mr. Akin
asked for clarification on the application for the variance being
requested. Mr. Bergstrom responded it is the
front yard setback area from the backyard line along 13th
Street to the end of the deck. Mr. Freebery was asked to draw a line
on the graphic drawing (in red) where the fence is being requested.
The drawing will be entered as applicant exhibit number 3. An
internet picture (two pages) showing the type of fencing (5 foot
fence + 1 foot lattice) being proposed is entered as applicant
exhibit number 2. Photos showing the current landing, current fence,
property line and ground markings of the deck layout have already
been submitted as applicant exhibit number 1.
The
home is on a corner lot and has two front yard lots, Baldt and 13th
Street.
When
the Board voted at the April hearing it was conditional upon moving
the deck on the 13th
Street side back six inches (6”) from the survey line. The
applicant was asked if the fence being proposed would be moved back
six inches (6”) as well. The applicant confirmed that is the
case.
Mr.
Athey made a motion to grant the variance request to construct a six
foot (6')
solid fence with a 0',
6" foot
front yard setback along 13th
Street for the subject property. Mr. Akin seconded the motion for
the purpose of discussion.
Mr.
Akin is not convinced a variance should be granted. He feels there
are reasons in the Code for having fences set back out of the set
back area or at least set back some reasonable distance. Other than
the fact the applicant wants the fence to come out to the line of the
new deck, and there were reasons stated concerning privacy, he is not
convinced the applicant has made a case under the conditions in the
Code we must follow. He agrees that some special conditions exist
with this lot that pre-existed the modern zoning code. Under
230-57(C)(1)(a), literal application or interpretation of the
provisions of the zoning code would deprive rights commonly enjoyed
by other properties in the district, he is not convinced that a
number of other property owners have been committed to building
fencing not only into the setback area or out to the outer perimeter
of their property line. A special condition in this case has been
caused by the applicant in choosing the place to locate the fence and
deck. The applicant has created the conditions he is seeking relief
from. City Council has determined that fencing should be kept out of
the setback area and if this variance is granted a privilege would be
conveyed to the applicant that has not been conveyed to any
significant extent to his neighbors. He is not in favor of the
motion.
Mr.
Athey disagreed with Mr. Akin’s comments. A corner lot does
create a peculiarity. The property is zoned R1. If we look at the
R1 requirement of 30’, because the house predates the zoning
code it already violates both front yard setbacks because of how the
house is situated. If we required the fence to be at that setback we
are telling the applicant he cannot fence in his backyard.
Mayor
Klingmeyer questioned if there is a zoning ordinance against fences
in general. (Discussion
followed about fences—size, slates, solid.) Mr.
Akin said fencing becomes offending when site lines are an issue.
According to the applicant there are no site line problems. Mr.
Bergstrom added that this district permits a four foot (4’)
tall, ¼ solid fence (widely spaced picket fence, chain link,
split rail) in the yard. Adding vinyl inserts makes the fence
illegal. Mr. Akin confirmed that if the vinyl inserts were removed
it would then become a legal fence per Mr. Bergstrom. City ordinance
does not permit solid, privacy-type fences. Homes in the area that
already have privacy-like fencing cannot be used as examples. Other
illegalities are not permission to continue another illegality.
Mr.
Athey questioned whether an illegality precludes this Board from
granting a variance. He is not asking for a variance for the
existing fence but he wants to install something new that would
preclude the Board from acting on the variance.
Mayor
Klingmeyer questioned if the application complies with existing law.
What makes it illegal – the fact that it is solid?
Mr.
Akin said that under Zoning Code 230-40(a) the definition for a solid
fence is defined. (He read
the definition aloud.) He
feels that the public policy of this city is that one cannot build a
solid fence as defined in the City Code. They cannot be installed in
the front yard setback area.
Mr.
Bergstrom said an ordinance was passed in the R1 district to permit
the front yard setback to be what it is for any building that
complied with the zoning at the time it was built and he has no
reason to suspect this building doesn’t comply. The Mayor
concurred. If you modify that for the deck then it is a new front
yard setback and a six foot (6’) high solid fence is permitted
up to the front yard setback.
(Discussion where the front yard setback is situated followed.)
After
rethinking his position Mr. Akin stated this pre-existing,
non-conforming structure on the applicant’s parcel, where the
home is not placed in the center of the parcel and the lot
configuration is a problem, if the variance is denied no privacy
fence could be installed in the rear yard. Special conditions and
circumstances do exist that are peculiar to this lot and are on the
lot. He is still concerned with building a non-pervious fence at the
property line and the 13th
Street side is a front lot for purposes of a code application. He is
also concerned with granting a variance for a 0’, 0”
setback fence at the front yard of the property. The true entrance
of the home is on Baldt Avenue.
(Discussion
between the Board and the applicant followed.)
It
was noted that matters that come before the Board must be judged
based on the legality of the application and are different from
pre-existing conditions. The applicant is trying to secure and
privatize his property. The Mayor understands what the applicant
wants to do, but securing and privatizing does not exist in the
current code.
(Brief
discussion about path forward for the applicant took place.)
Mr.
Freebery stated that he has appeared before three organizations in
the City. He has approached the Tree Commission to plant trees in
the right-of-way to provide privacy and it was denied because trees
are not permitted in the right-of-way. He has had theft of items in
his yard and has had damage to items on his property. The existing
four foot (4’) fence does not provide the security and privacy
he is seeking.
Mr.
Bergstrom stated that the front yard along 13th
Street is established by the house itself. He based his statement on
the change to the zoning ordinance for all homes that were not in
non-compliance to whatever code existed when they were built. The
front yard setback is 4.4’ and he believes the applicant should
be permitted to build a six foot (6’) tall solid fence at that
line as requested. (This is
cited in Zoning Code Section 230-9(e) which was read aloud by Mr.
Athey.)
Mr.
Akin is less concerned after hearing Mr. Bergstrom’s
interpretation of the law. The variance being sought is less than
four feet (4’) meaning the setback variance being requested is
far less than what he originally thought.
(The
applicant’s path forward was discussed again.)
A
roll call vote was called.
Mr.
Akin voted against granting the variance for the reasons stated
earlier applying the factors under Section 230-57(C)(a)(1-4). He
believes there is a reason for restricting construction within
setback areas as well as fences in setback areas. The applicant is
proposing to construct a solid six foot (6’) fence along a
substantial portion of his front lot line along 13th
Street. He chose not to back the fence up. Mr. Akin would have been
satisfied had the applicant elected that path. He does not feel the
applicant stated a good reason why he should be permitted to consume
the entire front setback area with the fence and the conditions
presented to us were self-imposed by the applicant. There was some
evidence of others in the same zoning district who have constructed
fences, no evidence was shown by photographs of those homes with
solid fences constructed along a 0 set back on front lot lines.
Mr.
Athey voted in favor of granting the variance because extenuating
circumstances that were not the fault of the applicant were that it
is a corner lot and the configuration of the existing house and the
now 4.4’ setback in the Code and followed by the applicant
would render it impossible to place the fence in the rear yard and he
does not feel that was the intent of the Code.
Mayor
Klingmeyer voted in favor of granting the variance citing the
uniqueness of the property location between 13th
Street and Baldt Avenue. Previously this Board approved the deck and
to require a setback for the fence with a tree in the area would not
provide the protection and privacy being sought by the applicant.
This decision does not automatically mean that future applications
will be met in a favorable manner.
The
motion to grant the variance was approved by a vote of 2-1.
The
hearing was adjourned at 8:15 p.m.
Respectfully
submitted,
Debbie
Turner
Stenographer
Applicant
Exhibit 1 – Photos (4) showing current landing, current fence,
property line and ground markings of the deck layout
Applicant
Exhibit 2 – Type of fencing (5 foot fence + 1 foot lattice)
being proposed (2 pages)
Applicant Exhibit 3 – Drawing of
property with red marking drawn by applicant indicating where fence
is being proposed
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