Attachment 17LOS GATOS PLANNING COMMISSION 5/22/2019
Item #3, Town Code Amendment – Hillside Fences
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A P P E A R A N C E S:
Los Gatos Planning
Commissioners:
Matthew Hudes, Chair
Melanie Hanssen, Vice Chair
Mary Badame
Kathryn Janoff
Town Manager:Laurel Prevetti
Community Development
Director:
Joel Paulson
Town Attorney:Robert Schultz
Transcribed by: Vicki L. Blandin
(619) 541-3405
ATTACHMENT 17
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P R O C E E D I N G S:
CHAIR HUDES: I would like to continue on right
now. I do want to remind folks that we will be taking
public testimony on Item 3 if they would like to speak. I
don't have any cards currently but as I mentioned earlier,
we are able to do that, I think. So, we'll take the Staff
Report and the public comments, and then we'll take a break
after that. Thank you very much.
Item 3 is Town Code Amendment—Hillside Fences.
Town Code Amendment Application A-19-001. Consider
amendments to Chapter 29 (Fences, hedges and walls) of the
Town Code regarding fences, hedges and walls in the
hillside area. Applicant is the Town of Los Gatos and
project planner is Sean Mullin. This is continued from
March 13, April 10, and May 8, 2019. So, Mr. Mullin, you
are giving another Staff Report tonight.
SEAN MULLIN: Thank you. At the April 10th meeting
the Planning Commission continued this item with specific
direction to return with a revised draft ordinance in
response to the direction. The ordinance before you tonight
addresses this direction and now includes Intent and
Definitions sections, requires perimeter fencing to be
wildlife-friendly in the hillside area, prohibits solid
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fencing in the hillside area, restricts fencing from
riparian corridors, allows maintenance and/or replacement
of historic stone or river rock walls, includes a section
outlining penalties for unlawful construction of fences,
and provides a process for property owners to request an
exception from the fence regulations.
Staff recommends that the Planning Commission
forward the draft ordinance to the Town Council with a
recommendation for approval. This concludes Staff's
presentation of the Staff Report and we are available to
answer any questions.
CHAIR HUDES: Okay, thank you. Questions of
Staff? Vice Chair Hanssen.
VICE CHAIR HANSSEN: I had a question. It was my
understanding—and I might have forgotten—that when we were
going through the draft back in April that we had ended
deciding that one way to handle this issue of perimeter
fencing, especially because we have smaller lots, was to
basically have a provision that if lots were less than one
acre that these hillside considerations would not apply to
them, like, for instance, they wouldn't have to have a
wildlife-friendly fence at the perimeter.
SEAN MULLIN: And we looked at that again today
after the Staff Report was drafted and released and there
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was a long discussion about that, and I think there were
opinions on both sides and it was hard to establish whether
there was consensus. We would be happy to add that into the
report and have suggestions on how to incorporate it if
that's something that the majority feels.
VICE CHAIR HANSSEN: So, what I'm hearing is
Staff wasn't sure we had consensus, even though we might
have talked about it. Okay.
SEAN MULLIN: That's correct.
CHAIR HUDES: Thank you. Other questions of
Staff? I don't have any questions of Staff at this point; I
think I have one for later. I will now open the public
portion of the hearing. I have Dr. Weissman and then Gary
Kohlsaat.
DAVID WEISSMAN: I mostly want to address the
issue of specific perimeter fenced setbacks. I realize this
is a tough decision, but that's why you guys get the big
bucks. We talked about this at the last meeting, the
importance of this. Don't take my word for it; the Town
Attorney was in agreement that you should set a specific
fence setback.
Commissioner O'Donnell was concerned about the
ability of people to game the system. In other words, could
you put a non-wildlife-friendly fence 6" in from the
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perimeter line? I'm not sure about you, but I'm not even
exactly sure where my property line is unless I had it
surveyed, certainly not within 6".
We've also had a couple of other issues that
you've got in our letter, but the main one we're concerned
with is the setback. We just don't see it working unless
you specify. I'm not sure whether it's 10', 15', 20', and
you certainly don't have to get it right the first time. We
can have a review at a year or two years just to see how
things are working. Most of the properties in the hillsides
are not going to be affected by it. It's going to be more
for new properties that are coming up when large parcels
are subdivided.
At the last meeting there were concerns expressed
about odd-shaped lots, lots where the LRDA abuts up on the
property line, as expressed by Gary H., and one of the
commissioners was concerned about properties where owners
have dogs. The nice thing about the Staff's draft is that
there is a robust appeals process built into it, and we
support that. We're not here to try to limit property
owner's rights. We think that a compromise can be reached
between what property owners need and what the animals
need, but without a specific thing set up we just don't see
it working.
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We also had talked before about one size doesn't
fit all and we came in with lots less than one-acre would
be exempt, lots one-acre to one-and-a-half-acres, and so
forth. So, we've tried.
CHAIR HUDES: Thank you. Are there questions?
Commissioner Badame.
COMMISSIONER BADAME: What specific distance are
you recommending for the perimeter fencing? Is it 10', 15,
20'? What's your recommendation?
DAVID WEISSMAN: We looked in the literature to
try to come up with a number, and I even called a couple of
local folks who do EIRs, and apparently there is nothing
that's really been studied well. That's why we're
suggesting, and Commissioner O'Donnell supported, using the
setbacks that are already in the Town codes. We could come
up with something different, but again, let's bring it
back… Pick a number, bring it back in a year, and let's see
how it's working.
Portola Valley has much more liberal setbacks
than we ever proposed, and when I spoke to one of their
planners, she said in the ten years that they've been
dealing with this basically no one has objected; there's
been no problem.
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CHAIR HUDES: Thank you. Other questions? Okay,
thank you. Gary Kohlsaat.
GARY KOHLSAAT: Good evening, everybody. I just
have a few comments about this Fence Ordinance. As you know
I do quite a bit of hillside residences, and this affects
several of my clients.
First of all, when I read the definition of
"wildlife fencing," I was a little bit puzzled. More
puzzled not by the definition but why anybody would
actually install a fence like that. It's 18" off the ground
and 42" high. I mean, I don't know what the point is for
that.
I do appreciate what is in Item 8, the appeal
process. I think that's a very good idea to let the
Planning Director and Planning Staff, and ultimately the
Planning Commission, help decide on special circumstances
for fencing. But I read that there's a fee involved, and I
understand that Staff needs to be able to pay for their
time, but I want to know what the fee is going to be. Is it
going to be a couple hundred dollars? Is it going to be a
couple thousand dollars? Because I see probably the
majority of my clients can opt to appeal the Fence
Ordinance as is, and it's just a reality of the clientele
we have in Los Gatos. So, that's all.
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CHAIR HUDES: Thank you. Questions? Vice Chair
Hanssen.
VICE CHAIR HANSSEN: Thank you, I appreciate your
comments. I thought it was interesting, your comment about
why build a wildlife-friendly fence. I'm going to change
that into a question for you, which is your clients that
would want to build a fence in the hillsides, what do they
want to build it for?
GARY KOHLSAAT: The majority of them are building
it to keep the wildlife out of their immediate property, to
keep their children safe, keep their pets safe. You've got
mountain lions on Loma Alta and everything. You can't
escape it, it's going to have wildlife, and I think that
anybody with a large hillside property is insane to try to
fence the whole thing. I mean, why even live up there? But
some people want to fence certain portions of their
property. You have to do it for a pool, if you happen to
have a pool. You want to do it just for the sense of
security, even though animals can get up and around and
over these fence, but that's generally why they're doing
it.
Another reason, to be candid, is just a sense of
marking their territory. They don't want people walking
through, seeing there's a path between these two fences,
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I'm going to cut through and go up to the open space, if
it's not actually an easement, but it now becomes an
easement. So, there are reasons people just don't want
people walking on their property, and that's what fences
do.
VICE CHAIR HANSSEN: Supposing that we did go in
the direction of having, say, just for the sake of
argument, a 10' setback. How would you see your clients
managing that? Because you'd have a fence up to 10', and
then what happens to the other 10' in between there and the
property line? Or let's say it's 20'.
GARY KOHLSAAT: It's a great question because
what does happen to that no man's land? It becomes less
maintained. It becomes potentially a liability for someone
that's on that property that's not supposed to be there and
they get hurt. Other neighbors might say you put your fence
there, you usually put your fence on a property line, that
means my property is bigger now. Wow, great, then I can use
that. So, I see a lot of potential issues with that.
Again, no size fits all. No site is the same and
there are a lot of these hillside properties that you would
only consider fencing a portion of anyway, so I'm not sure
that this is the biggest issue we have here, but it is
going to come up, and I know on certain properties the
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biggest contention of the whole project is going to be the
fence, not the grading or the architecture or the height or
the reflexivity or something.
VICE CHAIR HANSSEN: Okay, thank you.
CHAIR HUDES: Thank you. Other questions? Okay.
Last card I have is Don Wemberly.
DON WEMBERLY: Thank you, Commissioners. How to
get the last word is to sneak the card in last.
First, let me say I support your draft. I think
it's a good compromise, as you state in your Intent,
between the rights and desires of citizens who own property
in the hillsides versus enhancing animal movement.
Using the building setback for your Fence
Ordinance, as you well know building setbacks are rather
generous in the hillsides, 25' to 30' depending upon
whether it's side or front. That becomes very problematic
because of the variation in lots as to size; slope; the
building site locations; features of the property, be it
riparian corridors or other features; locations for
accessory structures; landscaping, where's a good area,
where isn't? So, taking a big chunk out of those setbacks,
which in the case of our property, would eliminate our
ability to use about 35% of the lot if you just said you
can't have that fenced in, so I urge you not to develop
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that, and part of the reason is that there is very little
property that isn't either already developed or will be
coming before DRC, coming before yourselves, and Council.
That will be a time when you can apply intelligent decision
as to fences, wildlife corridors, all those sorts of things
as opposed to the blunt instrument of a setback line. Thank
you.
CHAIR HUDES: Thank you. Any questions? I do have
a couple more cards, actually. Peter Donnelly and then Bess
Wiersema.
PETER DONNELLY: Good evening. Peter Donnelly
from 15305 Surview Drive. I did not prepare any comments,
so if I'm not completely clear, my apologies.
First of all, I think what's been presented is a
much better draft than some of the previous versions that
have seemed to flow from one side of the argument to the
other, so that's good, it's compromise, and I think it
successfully balances the need of the wildlife and the need
of the property owners, of which I'm one.
This draft does provide for homeowners to protect
parts of their property, whether it be a swimming pool or a
garden, ornamental garden, pets, it allows for that in this
current draft.
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It excludes certain materials, which I think are
good to exclude those because they're not particularly good
materials to use in fencing, but that's the only
restriction that's there.
It does call for no perimeter fencing that's not
wildlife-friendly, and I just want to comment on this. I
don't want to see our hillsides encircled with 6' chain
link fences; just don't want to see it. I have a large
property and I'm not going to put a 6' tall chain link
fence around my property and I don't think we should
encourage that inside the Town. However, the draft that you
put in place today calls for wildlife-friendly fencing
along the perimeter; if you're going to put a perimeter
fence in it has to be wildlife-friendly.
To Dr. Weissman's comment, there's nothing in the
draft right now that says take a step one foot back and put
up a 6' tall chain link fence, and that's a weakness in the
draft that stands before you today and I think you ought to
do something to address it. Very difficult to come up with
the right way to address it. I've made certain suggestions,
other suggestions have been made, whether it be relevant to
the property size, whether it be a 5', 10', 15' or
something that's already defined as standard setbacks. You
guys ought to define those, but you can't leave the draft
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as it is right now because it will just basically be
circumvented by taking a step back from the property line,
and I think that would be a shame; a lot of work has gone
into this. But good job so far getting there; it's only
been about a year, I think. That's my comments.
CHAIR HUDES: Thank you. Any questions? Okay,
Bess Wiersema.
BESS WIERSEMA: Good evening, Commissioners. Bess
Wiersema, Studio3. I wasn't going to address anything on
this issue until I heard Vice Chair Hanssen's question,
which I thought was relatively relevant and it made me
think about how we approach hillside home design, and I
think that the same amount of appreciation and site
evaluation should perhaps be taken with fences and not have
it be arbitrarily applied to a building setback.
When we look at hillside properties, we also work
with the Planning Department or planners, planning manager,
etc., to look at the LRDA. It's something that you guys
also look at when we have a house that comes before you.
So, to take a flat site plan and apply a setback that's
written on a chart based on a size of a piece of property
and then say that that's where a fence should go, if it's
not going to go right on the property line is not
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necessarily relevant to each individual site based upon its
site conditions.
And I would encourage you, rather than putting
some specific number in to leave it up to staff to work
with each individual site and each individual project and
not define a specific number, because as we know, hillside
sites are unique compared to downtown and more modulated
site plans. And that's all I would suggest.
CHAIR HUDES: Okay, any questions? Okay, thank
you. So, those are all of the public cards that I have at
this point. I think we will take a ten-minute break and
resume at 9:00 o'clock, and if at that point Staff would
like to address some of these at once, and then we'll go to
Q&A. Okay, thank you.
(INTERMISSION)
CHAIR HUDES: We're back in session and we will
continue on with Item 3. We've closed the public comments
portion of the hearing and now it's time for us to ask any
questions of Staff or begin a discussion. We'll start down
the line, so Commissioner Badame.
COMMISSIONER BADAME: Mr. Kohlsaat had asked a
question that I thought was worthy of asking Staff. So,
what would be the fees to appeal a Fence Ordinance?
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SEAN MULLIN: The current fee schedule includes a
fence height exception, which is what we would use, and
it's $240.
COMMISSIONER BADAME: Thank you.
CHAIR HUDES: Vice Chair Hanssen.
VICE CHAIR HANSSEN: I actually have a couple of
questions but I'll just ask one for the moment, because I
saw that my other commissioners wanted to ask.
Right now, our ordinance defines the perimeter
fence as being on the property line, so supposing that the
worst case thing that was mentioned my Dr. Weissman
happened and someone goes and builds a huge 6' fence 6"
inside their property line. What could we do about that? I
mean, to me it would violate the spirit of the ordinance,
because I don't think you could put 1' or even 2' because
you just don't know what close would be, so what would
happen under the current ordinance if someone actually
built a big fence 6" inside the property line?
SEAN MULLIN: With respect to all the property
lines except the front the current ordinance would allow
you to do that, to move the fence in X amount of feet and
built it to the maximum. The reason why I except the front
is that the current ordinance, and the draft ordinance
actually, both limit fencing to 3' in height within the
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front setback, and also that they be visually open within
20' of a roadway.
VICE CHAIR HANSSEN: So, what could we do? Let's
just say this ordinance went through as it was, my neighbor
went and built a big, huge fence 6" inside the property
line and I called the Town about it. Is there anything we
could do? Or what could we do to make sure that doesn't
happen?
SEAN MULLIN: To the first question, if you
called because you had a concern, then it would be an
enforcement issue. We would check the fence if it complied
with the rules; even if it is just 6" inside the property
line then there's no action there.
To your second question, I think that's what's
really been discussed for the past two years is this is one
of the critical pieces, is what is that point? Is it the
perimeter, is it 10', is it 15'? And the concern on the
other side of the argument is how to apply a one size fits
all approach to a very complicated set of properties in a
very old town?
VICE CHAIR HANSSEN: Okay, thanks.
CHAIR HUDES: Thank you. Commissioner Janoff.
COMMISSIONER JANOFF: You know, we're sort of in
this rock and hard place spot and it seems to me that the
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concept of having an exemption for a certain lot size or
smaller would help us get out of that, and so I would be in
favor of no specific setback number but an exemption for
lot sizes. Give a reasonable number or smaller, because
those are the lots, the smaller size lots in hillside will
be the ones most inclined or most interested in having
perimeter fence, and that makes sense, so let's not... I
mean, the fee is relatively minor, $240, as fees go that's
not too bad, but you'd have a lot of people with small lots
asking for exemptions and paying a fee when we could exempt
that away.
CHAIR HUDES: Commissioner Badame.
COMMISSIONER BADAME: Here are my comments so far
with this draft ordinance and what we're struggling with. I
agree with what Commissioner Janoff just said. I think an
exemption for lot sizes under one acre makes sense.
Also, addressing Exhibit 22, I think that I would
fully be in agreement in keeping a setback in strangely-
shaped lots. I also would want to see a riparian setback of
20'. I also would want to see the penalty issues for the
housekeeping addressed to specify the Town Code section.
Those to me are kind of no-brainers, but what I'm
still struggling with is coming up with a specific distance
other than the lot sizes under one acre if we should, or
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should not, have a specific distance. I don't know what the
right answer is there.
And, we still need to talk about yard fences,
distinguishing them from a perimeter fence, where you might
have the need to have both because you've got dogs that you
want to contain in your yard. So, those are my comments.
CHAIR HUDES: Thank you. Vice Chair Hanssen.
VICE CHAIR HANSSEN: I wanted to comment on the
issue of the lot size of acre or less. My personal opinion
is that I think that we need to put in to exempt houses
less than an acre. Those houses are almost certainly going
to want to have a perimeter fence, and so it doesn't seem
equitable to me to ask them to have to pay money for an
exception, even if it's only $240, when someone with a
five-acre lot wouldn't have that issue because they
probably wouldn't want a perimeter fence—they'd need fences
for certain things that they're doing in their yard—and so
to me that seems like an equity issue, so I don't know if
the acre is the right number but I think we should think
about putting that back in there and that would take away a
lot of the exceptions.
Then, as far as the idea of the perimeter fence
and the property line and/or a setback I don't think we can
come up with a number that's going to work. Then, as was
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discussed in some of the testimony, you start putting a
setback and then what happens to the other 10' beyond that
and if there's a liability issue, and I just think that
that's going to cause more problems than it's worth.
Also, I would say that the original draft that
was recommended by Council didn't even have the idea of the
perimeter fence, so I think we're taking a step in the
right direction to put some restrictions on perimeter
fencing but I think we have to avoid going too far.
So, I'm almost like I think we could go with the
draft as it is with adding the riparian setback of 20' that
Commissioner Badame brought up, and it was also in the
comments that we received.
I would also be okay if we added the thing in
where the lot sizes of less than an acre would not be
subject to the specific hillside rules.
CHAIR HUDES: I wanted to add a few comments. It
appears that there may be the forming of a majority on
making a recommendation, however, I have some serious
concerns with this issue. As I have experienced this
process it seems as though as we get closer to a solution
it's one of those problems where continually new problems
come up, and I think that there are some fundamentals with
that I am not feeling comfortable that I will be able to
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get a resolution on, and so I'd just like to articulate a
few of those.
I think that in trying to engineer a solution to
this we end with a regulation that's either arbitrary and
therefore somewhat ineffective because it's always being
challenged, or something that is so discretionary that it's
also ineffective. This comes to light the more I look at
actual examples in the hillside. I think a number of us
actually are on hillside properties and I think we've
wrestled with some issues about our own specific
properties, but the more I understand, the more I
understand that I don't know enough about the specifics of
all the hillside properties to be able to solve enough
problems that I would feel comfortable.
The other part of this is that I think that this
should be implemented Town-wide, not just in the hillside,
for a number of reasons, as actually I think all of the
examples of other municipalities that we've seen have done.
I think a better basis for implementing this would be on a
lot size basis, and for a number of reasons.
One of them is that wildlife doesn't constrain
itself to our zoning maps and congregate in those areas.
There are numerous pockets that are supportive of wildlife
along the creeks, along the parks, where there are a lot of
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anecdotal stories about wildlife, and I've seen a lot of
them myself, and I actually think that it's in those areas
where it's more important because they're pressured by more
urban development. It would actually be more important to
have wildlife corridors in those as compared to the
hillsides.
So, I think that a better solution would be on a
lot size basis. I think it would be fairer and I think it
would be easier to come up with some of the solutions that
we keep wrestling with.
I also think that because we don't really address
this, I think that—and this was stated by Mr. Wemberly in
one of this letters—that if we're not really doing this
equitably and we're not really addressing where the
wildlife issue is, then the ordinance is unreasonable,
confiscatory, and unwarranted and difficult to enforce. So,
I have issues with that.
I also think that we haven't resolved this
perimeter definition issue and it seems to be one that we
get closer and farther from each time, but I think it's a
critical issue.
I think the yard fence hasn't been adequately
addressed.
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Finally, and I've expressed this before, is that
I think that by starting here the Town is being somewhat
hypocritical because the Town could address this in areas
where there are fences either on Town property, that is
hillside or along creeks. I ride past these and I see these
chain link fences or other kinds of fences and I just wish
the Town would sort of start by getting its own house in
order before requiring all the residents to do so.
I know this is a recommendation but for those
reasons I would be more interested in actually denying the
motion for the ordinance at this point. So, I'd be
interested in reactions. Commissioner Janoff.
COMMISSIONER JANOFF: I think hearing from our
Commission this evening there is general agreement about
having a lot size restriction rather than a setback, so
assuming we can determine the size that we're starting
with, and there's been less than an acre or one acre or
less, something along that line sounds like what we can
reach agreement around, so I think that would work.
Your concern about the wildlife traversing creeks
and sort of natural features of the land that they would be
drawn to for water and vegetation and whatnot, that's
actually improved if we reinsert the 20' off of the
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riparian corridor, which was in a previous draft, so I
think we got at least two solutions that help.
Whether the Town is hypocritical or is strapped
for funds to replace its fences, I won't comment, but I
think that leaves us basically at do we want to implement
something of a setback for lots… If we have an exemption
for one-acre or smaller lots, do we want to implement a
setback to the perimeter fencing for lot sizes larger?
CHAIR HUDES: I might just respond that my
concerns about the creek area and the lot size actually
applies outside of the hillside areas, and this doesn't
address that as it's drafted at all. This is based on rules
for the hillside, not based on lot size across town, so my
deep concern is although it might be helped, in the
hillside is not helped at all. Go ahead.
COMMISSIONER JANOFF: If we include the exemption
under Section 29.40.035, that's a general exemption and we
don't specify lot sizes in the hillside area. If I'm
reading the structure of the ordinance correctly, that's
not hillside specific under the exemption paragraph. I
mean, I would have no issue with the 20' off a riparian
corridor. I think that's in building code anyway in some
municipalities, so that could also be moved to the
exemption, which would be Town-wide.
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CHAIR HUDES: Vice Chair Hanssen.
VICE CHAIR HANSSEN: I wanted to bring up the
issue about the yard fences. I think this goes back to,
again, the size of the lot because if you have a lot size
of an acre or less—I mean I'm just throwing out that
number, you could have a 1.1-acre lot and have the same
issue—but I think that we got testimony earlier from one of
the architects too is that when people have very, very big
yards, particularly if they're going to put up a wildlife-
friendly fence, then why would they even put up a fence?
But if you have a smaller yard, I don't see
someone with a one-acre lot going and building little
islands of fences. I'm going to put a fence around my pool,
and I'm going to put a fence around my garden, and I'm
going to put another fence around this, and then you're
going to have like five different little fence circles
inside this one-acre lot. It's not going to look great and
it's going to be not in the spirit of what we wanted to do,
and so I don't know that the yard fence thing is such a big
issue. I think that what we put in here is that if you're
going to have a perimeter fence it needs to be wildlife-
friendly unless you have one of these smaller lots.
As to the comment about the whole town, I don't
disagree with what the Chair said because there are deer
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running around all kinds of parts of town, and so I think
the lot size thing could address that, but it's the Council
that's already decided to bifurcate the ordinance. I mean,
I suppose we could make a recommendation to say that if we
want to have wildlife-friendly fencing that it should apply
to the entire Town, but I think that decision was made
already unless we want to make a recommendation otherwise.
CHAIR HUDES: I'm going to try a motion, which I
think may not have a lot of support, but I will move to in
our recommendation deny this draft that's come before us
for an ordinance, and although there were some suggestions
made that might help, I think that there's still a lot of
complexities regarding the implementation in the hillside
and other issues that have been raised, so that's my
motion. Is there a second? Okay, motion fails for lack of a
second. Commissioner Badame.
COMMISSIONER BADAME: I really don't like
continuances but we're missing almost half of the
Commission, so we could continue and see what our other
commissioners feel about the current ordinance or if they
have further thoughts in fine turning the issues that we're
struggling with.
Otherwise, one of us could make a motion to
forward the application to Town Council with consideration
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of the comments made by Commissioners and the public, but
it seems that we're not doing them any great favors,
because there are a lot of complexities, as Chair Hudes
said, and I don't think any of us could unanimously agree
on those complexities. What's the right distance? How many
feet? How do we define perimeter fencing? No other
jurisdiction that we could come up with does that other
than along the property lines. I think we're staying on the
property line, and I think Woodside did say along the
property line, but I don't think we can find any other
jurisdiction that gets any more specific.
CHAIR HUDES: One of the other challenges that
I've wrestled with on this is that particularly as you get
to smaller lots that are still in hillside, and just take
the hillside concept for a minute, you will have the issue
of a lot of fences are good neighbor fences, and so you've
got a Fence Ordinance and now you've got the complexity of
needing to implement this with one, two, or three property
owners, which I'm sure can be done but it does also add to
the complexity of the issue because we're not only dealing
with completely new areas, we're also dealing with what's
permitted in the case of a fence replacement. Commissioner
Janoff.
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COMMISSIONER JANOFF: There's no desire on my
part to impede reasonable use of one's property and fencing
of one's property, and I think this ordinance that we have
will never be perfect; it just cannot be perfect. We cannot
get to the level of detail that would satisfy all of the
complexities or all of the variations of lots that we have
in town, and so it's my feeling that we can only do the
best that we can based on the input from Staff, the input
from the community, and the deliberation from the
Commission.
So, I'd like to make a motion that we forward
this draft of the ordinance to the Town Council with the
following changes:
Add under paragraph A(3)(c), Location, that no
fence, wall, or gate shall be located within 20' of the
riparian corridor.
Under Section 29.40.0325 I would recommend an
exemption for one acre or less sized lots.
And I would recommend that we clarify Section
29.40.0330 where we change the reference to Division 9,
Article 2 to the applicable code section as recommended by
the community input.
And that would be my motion.
CHAIR HUDES: Vice Chair Hanssen.
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VICE CHAIR HANSSEN: I will second the motion.
CHAIR HUDES: Thank you. Commissioner Badame.
COMMISSIONER BADAME: Would the Maker of the
Motion consider keeping setbacks for strangely shaped lots,
adding that to the motion?
COMMISSIONER JANOFF: How large a lot are we
talking?
COMMISSIONER BADAME: Well, you could have a
large lot that's strangely shaped that's over an acre; it
could be very narrow.
COMMISSIONER JANOFF: I'm not inclined to include
setbacks, only because the long and narrow, the strange
thing that goes along the crest of a hill and on the
Greenridge Terrace properties to come. I think it's too
hard to specify that setback. I think that's what's been a
particularly problematic number for us. The testimony that
I believe Dr. Weissman provided that said no other
jurisdiction is able to establish a setback is probably
reflective of the difficulty of coming up with a number to
apply to a certain type of irregular lot. Personally, I
think it becomes problematic and I would not want to
include that in the motion.
CHAIR HUDES: Okay. Vice Chair Hanssen.
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VICE CHAIR HANSSEN: I just wanted to make one
more comment and that is I completely agree with
Commissioner Janoff's comments. We've been working on this
a long time, and where we came from on this is that there
was some need to put in more specificity in terms of an
ordinance what we have in the Hillside Design Guidelines,
and if you look at kind of where we were and where we are
now, we at least have something that is a large percentage
of the way there. It is not perfect, we're going to find
out that people will game it and stuff, but we've made a
big, huge step forward. I don't think with a continuance
and having the other Commissioners here that we're going to
come to sets of numbers that are going to really pin this
thing in any more than it is, so I feel that we should go
forward with this and then see where it goes with the
Council, because I think it's pretty good where it stands
right now.
CHAIR HUDES: Commissioner Badame.
COMMISSIONER BADAME: I'll be supporting the
motion. When I look at the three directives that we were
given by Town Council in our Staff Report I think for the
most part we've met that, so I will be in support of the
motion.
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CHAIR HUDES: Okay, so let me call the question.
All those in favor?
ROBERT SCHULTZ: And we needed the reference to
the findings that you need to make, that it's consistent,
on Exhibit 2, I believe it is.
COMMISSIONER JANOFF: I can make the required
findings for CEQA, and I can make the required findings for
the General Plan for Chapter 29 (inaudible).
ROBERT SCHULTZ: And I'll just add a little
anecdotal information. Doing this 30 years I've seen many
ordinances, and you guys have wrestled with some very
difficult issues that aren't out there, but what I can say
is yes, if it is gamed, if there are situations, it doesn't
mean it can't come back to you, so I would be pretty
surprised if at some point in time like our Tree Removal
Permit needs updating and all the other ordinances that we
do at some point in time, they do come back for you, so
there might be along the way when we notice things that
aren't working or are working, and we can come back to you
and update it.
CHAIR HUDES: Vice Chair Hanssen.
VICE CHAIR HANSSEN: Do I need to amend my second
to include the findings?
ROBERT SCHULTZ: Yes.
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VICE CHAIR HANSSEN: I do.
CHAIR HUDES: Okay, I will again try to call the
question. All those in favor? Okay, I have three and
opposed one, so it passes, and I believe since this is a
recommendation there is not an appeal, is that correct?
SALLY ZARNOWITZ: That's correct.
CHAIR HUDES: Okay, thank you.
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