After a lengthy public hearing on July 24, the City Council decided to extend the interim ordinance that regulates the height and location of fences, walls and hedges on private property in the City until January 9, 2010.
The Council revisited the issue because the interim ordinance was set to expire on September 30. The original interim ordinance was adopted in August 2005. Jerry Bass, like many members of the community who have spoken at the numerous Council hearings on the subject, emphasized the Council needs to adopt a permanent ordinance by stating, “We think we’re done but we seem to be coming back again and again.”
The Council responded to their frustration by requesting City staff to prepare a permanent ordinance for their review in the winter of 2008.
Attorney Paul Dove, who worked for a client who had a complaint about a neighbor’s hedge, noted that the current “ordinance puts all the burden of proof on the neighbor [who is complaining] not the homeowner to justify the height of the hedge.” He suggested instead that the ordinance contain a provision to include “burden shifting” so the burden is shifted to the hedge owner to prove why he wants to retain a non-conforming hedge.
In order to respond to this issue and other issues raised about the objection, the Council amended the interim ordinance to include not only height, age, location and height objection criteria but also date of purchase, prior complaints, line of sight, hedge maintenance history and use and enjoyment of yards.
The extended ordinance also requires that all non-conforming hedges, fences and walls be registered (so they can be grand-parented) with the City by November 11, 2007 otherwise there will be potential enforcement action. Other ordinance amendments included maintenance provisions, a clarification of hedge heights adjacent to alleys and specific self-help remedies for property owners with issues from neighbors’ overhanging hedges.
Originally the issue came up when the original 1948 ordinance which limited fences and hedges in front yards of private houses to 42 inches and side and rear fences and hedges to eight feet – unless they were hazardous or obstructed vision – was suddenly enforced by the City beginning in January 2004.
Most residents were unaware of the ordinance and were disturbed and angered by the City’s sudden enforcement of it. Their anger was compounded by the City’s Compliance Order letters, which stated that unless outsized hedges were cut back to comply with the 42-inch limit, their owners would be fined $25,000 per day with a maximum of $500,000. According to the City, the letter was incorrect and the fine should have been $2,500 a day, but residents were not mollified, and continued to protest.