03-23-95 Regular Meeing and Public Hearing

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• • Page 2 of 3 Boazd of Adjustment Staff Report of 7-6-95 #A95-003 The applicants then provided photos documenting the existence of the previous fence. As noted in a previous paragraph, staff feels the original fence was a legally established non- conforming structure. What has not been established is when this fence was removed. In their application to the Board, the Shamlins state the original fence was demolished on May 13,1995. Staff has no reason to doubt this statement, but we have found no means by which to document it either. Based on. these considerations, the applicant's permit application for construction of a new front yard fence was denied by Building Official Mark Lewis on June 22. The applicants aze appealing this denial. Analysis: In beginning the analysis section of this report it should be noted that. there was an avenue available that would have ~1lowed the applicants to maintain their front yard fence. Under .the terms of Zoning Ordinance Section 4-201.4, a deteriorating non-conforming structure may be repaired and even partially rebuilt. Had the applicants come to the City prior to removing the original fence, a permit could have been issued to allow replacement of up to 50% of the existing structure. A subsequent permit could have been issued at a latter date for the purpose of replacing the remaining portion. As the original fence was not destroyed by "fire or the elements" the non-replacement provision of Section 4-201.3 does not apply. Additionally, as the original fence has been removed, it cannot be determined if it was substandard to the point of invoking the non- replacement provision of Section 10-201.4. Finally, it should be noted that the fence was an accessory structure. It was anon-conforming element of a homesite that otherwise conforms will all applicable R-1 zoning~provisions. Section 4-201.1 states that structures or facilities should not be deemed non-conforming for failure to comply with Section 10, the Special regulation section of the Ordinance. Section 10, in part deals with accessory structures, including fences. It appears to be the intent of this section to have non- conforming accessory structures evaluated with a narrower focus than would be used for a primary non-conforming structure. In other words, regardless of the determination regarding this fence, the primary structure on the property will remain conforming. The overall use of the property will continue to conform with R-1 regulations. Based on these factors and coupled with the fact that there was a means by which the original fence could have been replaced, the primary question becomes this: Did the applicants intend to abandon the right to maintain a front yard fence on this property? Ordinance Section 4-201.7 states, "whether ornot anon-conforming structure has