Agenda 06/09/2009 Item #10A
Agenda Item No. 10A
June 9, 2009
Page 1 of 20
EXECUTIVE SUMMARY
Regarding the Fence Height Waiver provisions of the Land Development C.ode pursuant to
Section 5.03.02. for discussion purposes as directed by the Board of County Commissioners
(Board).
OBJECTIVE: To comply with Board direction to submit a staff recommendation in order for
the Board to consider eliminating or modifying the administrative fence height waiver section of
the LDc (Sections 5.03.02).
CONSIDERATIONS: Pursuant to Item 6A on the February 24, 2009 agenda, the Board
directed the County Manager to have staff bring forward recommendations regarding the
administrative Fence Height Waiver provisions of the Land Development Code (LDC) for
possible modification. The LDc regulates the height, location and type of material for fencing,
by zoning district. The purpose of fence regulations is to help maintain adequate visibility on
private property and in public rights-of-way, to maintain the openness of front and side street
yards, to protect the light and air to abutting properties, to provide adequate screening by
regulating the height, location, and design of fences, and to ensure the character of the
community and residential neighborhood are maintained and that streetscapes are harmonious.
The LDC provisions that specify the administrative authority to waive certain height and other
fence related requirements are cited below. The criteria for approval of number 8 (height
waiver) are imbedded in the paragraph and are bolded:
Section 5.03.02.A.
7. Fences and walls shall be constructed to present the finished side of the fence or wall to the
adjoining lot or any abutting right-of-way. If a fence, wall, or continuous landscape hedge exists
on the adjoining parcel, this provision may be administrative{.v waived where said request has
been requested in writing.
8. When determined to be beneficial to the health, safety, and welfare of the public, the County
Manager or designee may approve an administrative variance from height limitations offences
and walls in all districts provided that at least one (1) health, safety, or welfare standard
peculiar to the property is identified, and that such approval does not set an unwanted
precedent by addre!i'sing a generic problem more properly corrected by an amendment to this
Code.
The LDc precludes non-waterfront properties, I acre or less in area, from having a front fence
that is greater than 4 feet in height. This impacts properties generally located in standard (non-
PUD) zoning districts such as Naples Park, the Golden Gate "city" area, East Naples,
Willoughby acres subdivision and the lmmokalee area. The ability to obtain an administrative
height waiver has, in some cases, successfully provided flexibility in the Code where unique or
health safety concerns on a site may necessitate a higher fence in non-residential zoning districts;
~.- for residential developments, in staffs opinion, the criteria are difficult to meet. Staff has
Agenda Item No. 10A
June 9, 2009
Page 2 of 20
historically taken the position that an increased fence height to offer protection to a residential
development from noise, meets the intent of the regulations, but applications for higher front
fences for security purposes have not met that test. Because the criteria for approval is so vague
it leaves individual property owners to assume what will meet the significant test and leaves staff
with open-ended discretion in determining the same.
Attached is a brief summary of the thirty-four applications Community Development &
Environmental Services (CDES) has received for fence height waivers since 2003. Of those
thirty-four, fourteen have been culled for use as exhibits pursuant to this report (the others were
application types that were later transferred to a different process; applications with incomplete
data were not used here as examples). Fourteen of the thirty-four were for residential properties;
three of which were each exclusively for single family homes on individual lots. The data
suggests that height waivers were consistently granted for residential projects whose proximity to
heavily travelled roads (collectors, arterials or the Interstate) necessitated a higher fence/wall for
noise abatement purposes. Commercial properties fared better than residential as it appears that
the applicant's were able to demonstrate that a unique safety concern, relative to the use of the
property, was present, therefore they were also granted waivers.
As previously stated, the approval of a fence height waiver request requires that a substantial
relationship to a unique health, safety, and welfare standard be present before administrative
approval can be granted. The perceived need for a front fence on a single family lot which is
greater than the permissible height of 4 feet often seems to stem from a personal desire to have a
higher fence and not some unique health safety issue unique to that property (at least according
to the applications submitted over a 6-year time period). Staff has taken the position that
individual single family residential applicants who desire a higher fence for security purposes do
not meet the criteria regarding the Code requirement to address a unique issue related to one site.
The Code clearly states that the approval of a variance cannot set an unwanted precedent by
addressing a generic problem more properly corrected by an amendment to the Code. The fact is
any property throughout the County is subject to being a potential victim of crime and it is
difficult to argue that a fence is the exclusive tool to ensure relief from crime concerns. There are
several alternatives to fencing which can address security problems. Greater security on a
property could be achieved by installing alarms, illumination, outdoor lighting, housing
valuables inside, alarming valuables, constructing secured storage buildings, gating driveways,
locks, moving the activity or individual to the rear yard away from street and where a taller fence
is allowed, etc. Although fences offer a psychological deterrent to crime, they are minor physical
deterrent and can actually enhance the likelihood of crime by blocking the view of the yard and
the house from the street, depending on the material they are constructed from. It is difficult to
think of a circumstance where a unique situation exists (besides traffic or noise) that may
necessitate a fence in the front yard greater than 4 feet on a single family home site and thus far
none have been presented. This seems to also be the case as in other communities where the
fence height is limited to 4 feet for single family zoning districts. Many communities limit fences
in single family zoning districts and which are located in front yards to 4 feet or less and material
type is limited; some communities don't allow fences forward of the front building line.
The ability to prove a unique hardship on a residential single family property has been
challenging therefore staff has not been compelled to grant administrative waivers (although the
Agenda Item NO.1 OA
June 9, 2009
Page 3 of 20
applicant could apply for a regular variance and attempt to meet the hardship test through that
process). In order to remain consistent and fair in the application of the Land Development Code
individual justification for a decision needs to be based on factual findings.
The following are staff-offered alternatives to the current situation as described above:
1. Modify the LDC to limit the ability for property owners to administratively waive the
fence height requirements to non-residential land uses only and enhance the criteria for
approval to lessen subjectivity. As an alternative for residential properties, limit the
ability to obtain a higher fence in the front yard for residential unless the property abuts
the interstate or an arterial or collector roadway.
Pro: Enhancing the criteria will reduce the subjectivity in the decision making process
and will more clearly describe the situations under which an applicant may qualify for an
administrative variance. Reducing the ability to get an administrative height waiver
unless specific circumstances are present for residential (abutting certain roadway types)
further reduces the subjectivity in analysis and decision making and clearly defines the
circumstances under which one may obtain a higher fence.
Con: Some may view this as a reduction in flexibility in the Land Development Code.
2. Adopt similar criteria for a dimensional variance and put a limit on the extent of the
administrative variance (limit the amount that can be granted) and the ability to appeal.
Pro: Enhances the approval criteria and limits the extent of a height waiver (which is
currently unlimited). It may encourage applicants who have a situation that clearly meets
The criteria to apply vs. those who are applying for personal or other reasons.
Con: This proposal limits the ability of the applicant to file for an appeal to staffs
decision however this alternative could be modified to remove that limitation.
3. Preclude applicants from appealing and require they file for a dimensional variance.
Pro: Circumvents the appeal process by requiring the issue to go to a public hearing and
allows for public notice. The applicant would retain the ability to appeal the results of
the dimensional variance hearing.
Con: Time and Cost may be viewed as excessive.
4. Allow a 6-foot high fence by imposing material limitations through the administrative
variance process with a restriction on materials; impose opacity limits
and/or exclude certain materials such as vinyl and wood.
Pro: May reduce the number of variances but someone will always want a taller fence or
to use different materials than what is allowed by the Land Development Code.
Agenda Item No. 10A
June 9, 2009
Page 4 of 20
Con: 6-foot high fences in the front yard in high density single family residential
developments is usually undesirable. It does not further the intent of the zoning
regulations, creating light and air issues, visibility issues, security issues and appearance
issues.
FISCAL IMPACT: This executive summary is prepared for discussion purposes. Fiscal
impact will be evaluated should specific amendments be proposed.
GROWTH MANAGEMENT IMPACT: There is no Growth Management Plan impact with
this request.
LEGAL CONSIDERATIONS: The County Attorney's office supports modifications to the
Land Development Code which lessen subjectivity. This item is ready for Board consideration.
It is not quasi-judicial and as such, ex parte disclosures are not required. A majority vote is
necessary for Board action.--HFAC
RECOMMENDATION: Staff recommends alternative No.1. Modify the LDC to limit the
ability for property owners to administratively waive the fence height requirements to non-
residential land uses only and enhance the criteria for approval to lessen subjectivity. Staff
suggests the alternative for these residential properties to limit the ability to obtain a higher fence
in the front yard for residential unless the property abuts the Interstate or an arterial or collector
roadway for residential front yard non-waterfront lots of one acre or less. It retains the flexibility
in the Code for non-residential properties and limits the ability to get a fence waiver in the front
yard for non-residential properties.
PREPARED BY: Susan M. Istenes, AICP, Director, Zoning and Land Development Review
Page 1 of 1
Agenda Item NO.1 OA
June 9, 2009
Page 5 of 20
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
Item Summary:
10A
Meeting Date:
Discussion on Fence Height Waivers per request of the Board of County Commissioners.
(Susan Istenes. AICP. Director, Zoning & Land Development Review, CDES)
6/9/2009 9:0000 AM
Prepared By
Susan Istenes, AICP
Community Development &
Environmental Services
Zoning & Land Development Director
Date
Zoning & Land Development Review
5/12120094:43:00 PM
Approved By
Heidi F. Ashton
Assistant County Attorney
Date
County Attorney
County Attorney Office
5/13/200910:20 AM
Approved By
Jeff Klatzkow
County Attorney
Date
County Attorney
County Attorney Office
5/14/2009 2:24 PM
Approved By
Judy Puig
Community Development &
Environmental Services
Operations Analyst
Community Development &
Environmental Services Admin.
Date
5/19/20099:49 AM
Approved By
Joseph K. Schmitt
Community Development &
Environmental Services Adminstrator
Date
Community Development &
Environmental Services
Community Development &
Environmental Services Admin.
5/26/2009 11 :19 AM
Approved By
OMB Coordinator
OMB Coordinator
Date
County Manager's Office
Office of Management & Budget
5/28/2009 8:28 AM
Approved By
Mark Isackson
Budget Analyst
Date
County Manager's Office
Office of Management & Budget
5129/20098:27 AM
Approved By
Leo E. Ochs, Jr.
Deputy County Manager
Date
Board of County
Commissioners
County Manager's Office
5/29/20094:10 PM
file://C:\AgendaTest\Export\ 131-June%209,%202009\ 1 O.%20COUNTY%20MANAGER%2... 6/3/2009
Agenda Item NO.1 OA
June 9, 2009
Page 6 of 20
5.03.02 Fences and Walls
A. All districts.
1. Whenever a property owner elects to construct a chain link fence, pursuant to the provisions
herein, adjacent to an arterial or collector road in the urban coastal area, shall not be located
closer than three (3) feet to the right-of-way or property line, and said fence shall be
screened from view by planting a hedge of living plant material at a minimum of thirty (30)
inches in height and spaced a distance apart that will achieve an opacity of 80 percent
sight-obscuring screen within one (1) year of planting. An irrigation system shall be
installed to ensure the continued viability of the hedge as a visual screen of the chain link
fence. This regulation shall not apply to single-family homes.
a. Structures subject to section 5.05.08 Architectural & Site Design Standards must comply
with the following additional fencing standards:
i. Chain link and wood fences are prohibited fOIWard of the primary facade and must be a
minimum of 100 feet from a public right-of-way. Chain link and wood fencing facing a public or
private street must be screened with an irrigated hedge planted directly in front of the fence on
the street side. Plant material must be a minimum of 3 gallon in size and planted no more than 3
feet on center at time of installation. This plant material must be maintained at no less than three-
quarters of the height of the adjacent fence (See Illustration 5.03.02 A.1.a. - 1).
ii. Fences fOIWard of the primary facade, excluding chain link and wood are permitted under the
following conditions:
(a) Fences must not exceed four feet in height.
(b) The fence provides either an open view at a minimum of 25 percent of its length or provides
variation in its height for a minimum of 15 percent of its length with a deviation of at least 12
inches.
(c) The fence style must complement building style through material, color and design.
2. All fences and walls shall be of sound construction and shall not detract from the public
health, safety, and welfare of the general public.
3. All fences and walls shall be maintained in a manner that will not detract from the
neighborhood or community.
4. Barbed wire is authorized within agricultural, commercial, industrial districts and on fences
surrounding raw water wells in all districts. Razor or concertina wire is not permitted except in
the case of an institution whose purpose is to incarcerate individuals, i.e., a jailor penitentiary, or
by appeal to the BZA.
5. No fence or wall within any district shall block the view of passing motorists or pedestrians
so as to constitute a hazard.
Agenda Item No. 10A
June 9, 2009
Page 7 of 20
6. Fences and walls shall be constructed of conventional building materials such as, but not
limited to, concrete block, brick, wood, decorative iron or steel, and chain link.
7. Fences and walls shall be constructed to present the finished side of the fence or wall to the
adjoining lot or any abutting right-of-way. If a fence, wall, or continuous landscape hedge exists
on the adjoining parcel, this provision may be administratively waived where said request has
been requested in writing.
8. When determined to be beneficial to the health, safety, and welfare of the public, the County
Manager or designee may approve an administrative variance from height limitations of fences
and walls in all districts provided that at least one (1) health, safety, or welfare standard peculiar
to the property is identified, and that such approval does not set an unwanted precedent by
addressing a generic problem more properly corrected by an amendment to this Code.
9. Existing ground levels shall not be altered for the purpose of increasing the height of a
proposed wall or fence except as provided for within section 5.03.02 A.8. and 4.06.00.
B. Fence height measurement for all districts. The height of a fence or wall located outside of
the building line shall be measured from the ground level at the fence location. However, if the
County Manager or designee determines that ground levels have been altered so as to provide for
a higher fence, the County Manager or designee shall determine the ground level for the
purposes of measuring the fence height. In determining whether the ground level has been
altered for the purposes of increasing the height of the fence, the County Manager or designee
may consider, but is not limited to, the following facts:
1. General ground elevation of the entire lot.
2. In the case of a lot with varying ground elevations, the average elevation over the length
of the fence, and at points in the vicinity of the fence.
3. The ground elevation on both sides of the fence. In measuring the fence height, the ground
elevation on the side of the fence location that is at the lowest elevation shall be used as a
point from which the fence height is to be measured.
4. Fences or walls shall be permitted principal uses ; however, a fence or wall shall not, in any
way, constitute a use or structure, which permits, requires, and/or provides for any accessory
uses and/or structures.
C. Residential zoning districts. For the purposes of this section, residential districts shall
include: RSF, RMF-6, RMF-12, RMF-16,- RT, VR, MH, and TTRVC zoning districts, and the
residential increments ofPUD zoning districts. Fences and walls placed within required yards
shall be subject to the following:
I. Fences or walls on lots greater than one (1) acre in area may reach a maximum height of six
(6) feet; except for raw water wells, for which the allowable height is eight (8) feet.
Agenda Item No. 10A
June 9, 2009
Page 8 of 20
2. For non-waterfront interior lots one (1) acre or less in area, fences or walls may reach a
maximum height of six (6) feet for side and rear yards, but are limited to four (4) feet within
the required front yard.
3. For waterfront lots one (1) acre or less in area, height limits are as for non-waterfront lots,
but with the additional restriction that fences or walls within the required rear yard are limited
to four (4) feet.
4. For comer lots one (1) acre or less in area, which by definition have only front yards and side
yards, fences within required front yards are limited to four (4) feet in height, with the exception
that any portion of a front yard fence within the safe sight triangle described in section 6.06.05
of this Code is restricted to three (3) feet in height. (Two (2) sides of this triangle extend thirty
(30) feet along the property lines from the point where the right-of-way lines meet, and the third
side is a line connecting the other two (2).) Fences within required side yards may reach six (6)
feet in height.
5. Barbed wire, razor wire, spire tips, sharp objects, or electrically charged fences shall be
prohibited, except that the Board of Zoning Appeals may allow the use of barbed wire in
conjunction with chain link fencing for facilities where a security hazard may exist, such as a
utility substation, sewage treatment plant, or similar use.
D. Agricultural districts. For the purposes of this section, agricultural districts shall include: A,
E, and CON zoning districts. Fences and walls within agricultural districts shall be exempt from
height and type of construction requirements.
E. Commercial and industrial districts.
1. Industrial Districts [Non-residential development]. Fences or walls in industrial districts not
subject to section 5.05.08 shall be limited to eight (8) feet in height.
2. Whenever a nonresidential development lies contiguous to or opposite a residentially zoned
district, said nonresidential development shall provide a masonry wall or prefabricated concrete
wall and/or fence.
3. Iflocated on a contiguous property, the wall and/or fence shall be a minimum of six (6) feet
and a maximum of eight (8) feet in height and shall be located a minimum of six (6) feet from
the residentially zoned district.
4. If located on a property opposite a residentially zoned district but fronting on a local street, or
the properties are separated by a platted alley , the wall and/or fence shall be located a
minimum of three (3) feet from the rear of the right-of-way landscape buffer line and shall be
four (4) feet in height.
5. On properties which front on more than one (1) street, a six (6) foot high wall and/or fence
shall be required along the street which is opposite the primary ingress and egress point of the
project along the street frontage which is adjacent to the rear of the project.
Agenda Item No. 10A
June 9, 2009
Page 9 of 20
F. At the applicant's request, the County Manager or designee may determine that a masonry
wall and/or fence is not warranted, particularly where the local street lies contiguous to the rear
of a residence or some other physical separation exists between the residential development and
the nonresidential development, or for other good cause including the existence of a wall on an
adjacent residential development. The applicant shall demonstrate that the intent of this section
can be effectively accomplished, without constructing a wall, by submitting for approval an
alternative design and a descriptive narrative through the administrative variance process set
forth in subsection 5.03.02(A)(8) of this Code. The County Manager or designee shall review the
submitted documents for consistency with the intent of this section and, if the administrative
variance is approved, the approval and its basis shall be stated in the site development plan
approval letter.
G. Vegetative plantings shall be located external to the wall and/or fence such that fifty (50)
percent of the wall and/or fence is screened within one (1) year of the installation of said
vegetative material. An irrigation system shall be installed to ensure the continued viability of
the vegetative screen.
H. These regulations shall not be construed to require a masonry wall and/or fence for
commercial development fronting on anarterial or collector roadway where the opposite side
of such roadway is zoned residential or to be otherwise inconsistent with the provisions of
section 5.05.08(B) of this Code.
1. A wall and/or fence shall be constructed following site plan approval but prior to any vertical
construction or any other type of improvement resulting from the issuance of a building permit.
Special circumstances may warrant constructing the wall and/or fence in phases depending upon
the location of affected residential areas and after vertical construction commences.
(Ord. No. 05-27, ~ 3.EE)
Date AR# Comm or Res? Change Appro~@ge 10 of ~
(Y IN)
11/12/2003 5037 R Reverse fence face Y
02/05/2004 5357 R Allow 8'wall betw SF Y
and 1- 75
10107/2004 6628 C (Petroleum Allow 8' wall for Y
storagel distribution) security purposes
(Evans Oil after
9/11 )
10/26/2004 6719 R (PUD) Allow 10' wall Y
ad iacent to 1- 75
04/13/2005 7473 R (PUD - community Allow 6' fence Y
use) around community
pool
10103/2005 8423 R (RS F) Allow 6' on corner N (staff)
lot Y (BCC)
02/27/2006 9284 R (TTRVC) Allow 8' fence Y
I adjacent to US 41
for Noise abatement
7/27/2007 12087 R (RMF) Allow 6' fence for Y
i Day care Center
12/4/2007 12624 C/I History of break ins; Y
intense uses; odd
shaped lot
01/25/2007 111 72 C Wal- Y
Mart/Noi sel adjacent
residential
03109/2007 11 382 R Allow 8' wall Y
adjacent to Airport
Rd (noise)
06/28/2007 11949 R (multi- family) Allow 1 O'wall - Y
: Immokalee Rd
widening; no
veqetation remains
08/14/2007 12170 R (PUD) Allow 8- 14' wall; SB Y
road widening;
noise study
02/27/2008 12841 R (PUD) Residential Y
development
adjacent to
Livingston Road 12'
. wall
12/30/2008 14099 I R (detached SF; I Allow 7.5 foot fence Y
I . I
I Interna to surrounding
development) courtyard homes;
I drainage issues
01/07/2009 14113 R (RSF) , Allow 6' fence to N
remain that was
placed in the front
yard
34 applications
since 11/2003; I
14 examples
above
Agenda Item No. 10A
June 9 2009
o
Agenda Item NO.1 OA
June 9, 2009
Page 11 of 20
Municipality Res height Res Height Limits of Waiver Limits on Other
Front height Waiver Material Notes
rear/side (Y/N)
Naples 3 feet 6' y 6" for No chain Provides
forward of administrative link in council
front (except if front process
building adjacent to beyond 6"
line public beach
access)
Lee County 3-4 feet 6' Y 4" for Cannot
depending measurement use non-
on purposes due to traditional
material site materials
used conditions/grad
e
West Palm 4' 6' y By right to 6' in None Hedge Allows 6' for
front yard if noted limit of front of
yard abuts lO';C& I residential
designated land uses when
arterial or also 4' in bordering
collector front arterial or
collector
Sarasota 3-4' 6' N No chain
County depending link in i
front i
on
material
used
Marco 4' 6' y Same as Collier Adopted
Island Collier
Stds.
Crystal 4' 6' N Hedges
River limited to
same
height as
fence
Indian River 4' 6' y Compatibility 6' along
County criteria specified collectors
I if they are
in the
fro nt
Manatee 4' 6-9' N Limitation on Increased
County material type on height if
front yard adjacent
to
com/ind
Agenda Item No. 10A
June 9, 2009
February t4,g~00920
that are open.
COMMISSIONER HENNING: I'll second it.
CHAIRMAN FIALA: Okay. And the motion is on the floor, and
you've heard it from Commissioner Coletta, and a second by
Commissioner Henning.
All those in favor, signify by saying aye.
COMMISSIONER COYLE: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER HENNING: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Opposed, like sign?
COMMISSIONER HALAS: Aye.
CHAIRMAN FIALA: Okay. That's a 4-1 vote.
MR. POTEET: Thank you very much.
CHAIRMAN FIALA: Thank you.
Let's hope that we can get through the rest of them a little bit
.
eaSIer.
Item #6A
PUBLIC PETITION REQUEST BY JENNIFER BERMUDEZ TO
DISCUSS A FENCE VARIATION MATTER - PETITIONER TO
SUBMIT ADDITIONAL INFORMATION TO SUPPORT HER
REQUEST TO THE ZONING DIRECTOR
MR. MUDD: Commissioner, I believe Mr. -- Ms. Jennifer
Bermudez is here, so we go to 6A. It's a public petition request by
Jennifer Bermudez to discuss a fence variation matter.
Please come forward to the podium.
MS. BERMUDEZ: Good morning. I'm here for a fence variance.
This is a code enforcement issue. It was a gazebo and a fence
originally. There was -- it was done with no permit. I'm trying to bring
Page 27
Agenda Item NO.1 OA
June 9. 2009
February t4;~~20
it up to code on behalf of the homeowner and the contractor.
The fence is 6 feet high currently, and apparently to bring it up to
code, we need to knock it down to 3 feet. One of my options I was
given was to apply for a fence variance, which was a thousand dollars
paid by the homeowner. I applied for it, and my biggest argument is
that it's an area that is high in crime. And it states for the variance that
at least one health, safety, or welfare issue has to be presented, and I
feel that it was, and they denied me from that.
I don't feel that there was much study done on the area. It says
that it might be, but they don't agree with it. And I'm looking for some
options to keep the fence up to of 6 feet. It's a chain link fence. It isn't
a privacy fence. And I don't -- we just can't understand why it's being
such a big issue.
CHAIRMAN FIALA: Commissioner Coletta?
COMMISSIONER COLETTA: Yeah. We should go right to
Susan on this. And it is a concern. I mean, the staff could make a
determination. They're capable of doing it under the right
circumstances to allow for it, correct?
MS. ISTENES: Susan Istenes, zoning director.
Yes, Commissioner. In fact -- sorry. I'm going to put this up first.
If you'll see in the letter, essentially the code allows the zoning
director to waive the height restrictions under unique circumstances.
And when we received the application, we felt it was really
lacking in an explanation of what was unique to this particular
property. We did call Jennifer and ask, before we spent her thousand
dollars on this, if she could provide more information because really it
-- it really was lacking and we didn't think we could approve it.
She called a couple days later, I understand, and said that was all
the information she could provide was what she had already given us,
and her basic argument was that the property owner has expensive
cars on his site and wished to protect them with a fence.
COMMISSIONER COLETTA: Question. What's -- the letter's
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Agenda Item NO.1 OA
June 9.2009
February 2'4:g~6'b~ 20
addressed to Mr. Blocker when the petitioner is Jennifer Bermudez.
MR. MUDD: Bermudez.
MS. ISTENES: Jennifer will probably have to explain her
relationship to -- I believe she may work for Mr. Blocker, I'm not sure.
MS. BERMUDEZ: Brian -- yeah, I do work for Mr. Blocker. My
argument was more of the safety.
COMMISSIONER COLETTA: No, the letter's in question right
now. I mean, I can't understand why the letter wasn't addressed to you.
It was addressed to Mr. Blocker.
MS. BERMUDEZ: I'm here representing Mr. Blocker. He is the
contractor.
COMMISSIONER COLETTA: Okay. So this property is -- you
live -- and is owned by Mr. Blocker?
MS. BERMUDEZ: No, we're the contractor, sir. It's owned by
Ray Cantor. We're the contractor applying to get the permit up to
code.
COMMISSIONER COLETTA: How does Mr. Blocker fit into
this?
MS. BERMUDEZ: He's the con- -- he's originally the contractor.
COMMISSIONER COLETTA: Oh, the original contractor?
MS. BERMUDEZ: He's the contractor. We're building a house
for him.
COMMISSIONER COLETTA: Okay. I understand now. I'm
sorry for that line of questioning.
MS. BERMUDEZ: That's okay.
COMMISSIONER COLETTA: Just trying to understand this
whole thing.
What I'm hearing staff tell me is that you failed to supply the data
as far as the crime data goes -- I guess that's what you're saying; right,
Susan?
MS. ISTENES: Yeah. Well, let me clarify. I don't necessarily
know that it's crime data. I mean, there has to be a unique situation to
Page 29
Agenda Item NO.1 OA
June 9, 2009
February 24;2~6'920
this property, this property alone. If there's crime in the area, then that
is a broad problem and not a unique situation.
COMMISSIONER COLETTA: Explain the unique situation.
MS. ISTENES: I'll try to give you an example. First of all, I'll tell
you, we -- the fence variance waivers are not given out, like you pay
your thousand dollars and you get to have your height type of thing,
and I sort of feel like perhaps Jennifer felt that as long as she paid her
thousand dollars, she was going to be able to have the 6 foot height. I
may be wrong. That's just my perception.
COMMISSIONER COLETTA: This was -- this was the
determination you made, and that cost a thousand dollars.
MS. ISTENES: Correct, yes. It's called an administrative height
waiver for a fence.
And, for example, Commissioner, we have had people in the past
come in like, for example, when they've lived on very busy roads on a
corner lot and they've wanted to put up a 6 foot block wall, for
example, to buffer some of the noise. That's kind of that -- that was
one situation where we found there was a unique circumstance for
comer lot properties, because corner lot properties are restricted on the
front yards to a fence height of 4 feet in residential districts.
Now, she can have the 6-foot on the sides, but on the front it has
to be 4 feet, and then within a visibility triangle at the corner, it
actually has to be reduced to 3 feet.
COMMISSIONER COLETTA: But you would allow a 6-foot
masonry structure that would block the view of traffic and -- but not
allow a chain link fence.
MS. ISTENES: No, Commissioner. The -- I was giving you an
example --
COMMISSIONER COLETTA: Oh, I'm sorry.
MS. ISTENES: -- of a unique circumstance where an increase in
height would help resolve a problem unique to the property because
they happen to be on a busy road.
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Agenda Item NO.1 OA
June 9. 2009
February 24;~(}'@20
I think there was somebody before you that was concerned over a
sexual predator in their neighborhood, for example, and they -- their
children played out front.
COMMISSIONER COLETTA: Right. I remember that.
MS. ISTENES: And we denied them, and I believe they came
before you.
The proper way to do this -- and I explained to Jennifer her
options, so I'm not exactly sure what she's asking you. She said she
wanted options. I did speak to her on the phone and told her she could
appeal this determination. Now, that has to be done within 30 days,
and I think she's probably -- yeah, she is past that time. That letter's
dated January 14th. She could also apply for a variance. I did not
encourage her to do that. Again, that's not my decision to approve a
variance, but I didn't think she had -- met a lot of -- would meet a lot
of the criteria for a variance.
COMMISSIONER COLETTA: Let me just go through what I
just heard. To apply for a variance, which would be an option that
would be open, costs like about $4,000?
MS. ISTENES: For residential, I think it's about three.
COMMISSIONER COLETTA: Three thousand.
MS. ISTENES: Plus advertising.
COMMISSIONER COLETTA: Three thousand to lower the
fence 2 feet. To be able to come up with circumstances, mitigating
circumstances, that would allow staff to off-write it, it would have to
be something other than a high-crime area, something like noise, and
it would have to be a masonry structure.
MS. ISTENES: No, it doesn't have to be a masonry structure. I
was just using that as an example --
COMMISSIONER COLETTA: Okay.
MS. ISTENES: -- as a time when somebody wanted to construct
a masonry structure to buffer themselves from noise. I don't know that
a chain link fence -- if it had been a chain link fence we would have
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Agenda Item No.1 OA
June 9, 2009
February f4;~O@20
approved it because their argument would have been kind of moot. A
chain link fence doesn't do anything for noise.
COMMISSIONER COLETTA: Exactly. That's the -- I think the
biggest mistakes we ever made here was giving your agency the
ability to be able to write waivers for these things based upon rules
that are less than clear. I mean, right now we're having a discussion
that doesn't make any sense at all.
I don't understand what the options are that are really available. I
don't understand what your ability is to be able to waive these
.
varIances.
MR. MUDD: Okay. Commissioner -- Commissioner, you
basically asked Ms. Istenes the difference between a general versus a
unique situation. He (sic) tried to provide a unique situation.
The petitioner, in order to get an administrative variance, needs
to be very specific upon why she and/or Mr. Blocker, her client, needs
to have the variance. That information was not provided to Ms. Istenes
and to staff, so staff has no alternative --
COMMISSIONER COLETTA: Okay.
MR. MUDD: -- in this regard but to deny the administrative
.
vanance.
Now, if Ms. Bermudez and/or Mr. Blocker would like to go
through the official variance request to the Board of County
Commissioners, that would be fine. But without the information, staff
can't do the administrative variance, and that's the problem.
COMMISSIONER COLETTA: And forgive me. I'm not going to
drag this out any longer. Just one more question to you, Mr. Mudd.
Is there a possibility with the thousand-dollar fee that was -- that
had already been paid that she might resubmit that application one
more time with more just reasons that may exist or not exist to see if it
still falls under that rather that have to spend $3,000 on a variance
after spending a thousand dollars just to get a determination?
Determination was based upon sketchy information. Can she
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Agenda Item No. lOA
June 9, 2009
February t4,9~~20
refile that? Would that be a possibility that we could allow the
petitioner to do?
MS. ISTENES: Commissioner, I've asked her twice for more
information. I'll be real blunt with you. She hasn't given me any. If she
has, you know -- I mean, I'm willing to consider it again, but after two
times, I've asked --
COMMISSIONER COLETTA: Thank you. That's all I wanted to
hear. Now the ball's back in your court.
MS. ISTENES: I don't think there are going to be any further
down the road.
MS. BERMUDEZ: Right. She states that I was under the
assumption that just applying for the thousand dollars, that I would be
approved just submitting the thousand dollars and the application,
that's not -- that is not true. I would have expected a little bit more
review on their behalf.
And she says, you know, that she's looking for something unique.
I mean, what is something unique? Is the chain link--
COMMISSIONER COLETTA: No. I hear you, but the thing is,
the burden of proof is upon the petitioner to bring it in, not upon the
staff to be able to find it for you. So what I would do if I was you is
just do a little more research in this, get some guidance from staff, and
then bring it back and see if they'll reconsider it based upon the facts
that you present, high crime, whatever the rationale is you use to get
that reduction in the height there.
MS. BERMUDEZ: She's stating that she's looking for something
specific to this home, not just something in the area. So I mean, I have
the records of high crime in the area, but it's not on this exact home,
and I don't think that it should come down to the crime being directed
to this exact home for them to have -- for them to allow the 6 feet (sic)
fence up.
And if their argument is that it needs to be able -- with it being a
comer lot, you need to be able to view the lot, it's a chain link fence.
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Agenda Item NO.1 OA
June 9, 2009
F ebruary 2ij~~d~~ 20
It's not like it's blocking anything. I don't understand.
CHAIRMAN FIALA: Okay. Excuse me, please.
Commissioner Halas, did you want to say something?
COMMISSIONER HALAS: Yep.
CHAIRMAN FIALA: I'm sorry.
COMMISSIONER HALAS: First of all, this is a code
enforcement case.
MS. BERMUDEZ: That's my understanding.
COMMISSIONER HALAS: We're not the Code Enforcement
Board. So I think what really needs to do ( sic) is this needs to go
through the process of going to the Code Enforcement Board, and then
maybe possibly coming back to the Board of County Commissioners.
CHAIRMAN FIALA: Okay.
COMMISSIONER COLETTA: But -- okay, go ahead.
COMMISSIONER HENNING: What's the address of the --
MS. BERMUDEZ: 1322 Orange Street.
COMMISSIONER HENNING: Orange Street.
MS. BERMUDEZ: In Immokalee.
COMMISSIONER HENNING: Okay. You know, my opinion is,
if, you know, Susan said she'd give it one more shot, that's being very
respectful, and you might be able to resolve this issue. There's still
going to be a code enforcement case on this, it sounds like, with the
gazebo or something like that.
MS. BERMUDEZ: I've taken care of that. I brought that up to
code. It's just the fence, the 3 feet down to the sides and then the 3 feet
and the 4 feet. He wants to stay at the 6 feet for his own safety and
concern of his family. He has small children in the area, and he has
small children at home. He feels safer with the 6 feet up.
COMMISSIONER HENNING: The -- does that sound
reasonable, County Manager?
MR. MUDD: She's going to provide specific information to Ms.
Istenes.
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Agenda Item NO.1 OA
June 9, 2009
F ebruary 2~~91do~ 20
COMMISSIONER HENNING: Well, if she doesn't--
MR. MUDD: If Ms. Istenes makes -- she needs to lay it out.
COMMISSIONER HENNING: Right.
MR. MUDD: And that's fine.
COMMISSIONER HENNING: And I'm okay with that.
CHAIRMAN FIALA: Okay. So do have you clear direction or
would you like anything clarified?
MS. ISTENES: Thank you for asking. I do have clear direction. I
would like to offer one other comment though.
I appreciate your comment on recognizing that there really isn't a
lot of criteria for staff to go by. That's essentially why we kind of don't
just hand these out to whoever asks. I mean, they really have to make
their case.
And you know, maybe the board should consider making the
fence height up to 6 feet in the code in general if -- you know, if they
feel that that's warranted. That's another option.
But I would be perfectly happy not to have this process in our
code or at least to adopt some very specific criteria. I still think it's
going to be really subjective though. Food for thought.
CHAIRMAN FIALA: Yeah. That is something that we should be
talking about possibly, huh?
COMMISSIONER HENNING: Yeah. We should give our staff
some criteria to go by to do any kind of variance. We do it with
setbacks.
MS. ISTENES: Correct.
COMMISSIONER HENNING: Correct? But there are other
cases in there, and that should be on the second LDC, whatever you
call it, administrative code.
MS. ISTENES: No. This actually would be in the Land
Development Code, I believe. But, you know, we could look at it or
we could just eliminate the process, and they would have to go
through a regular variance and, quite frankly, I would probably
Page 35