Chapter 15.15
FENCES
Sections:
Prior legislation: Ord. 188.
15.15.010 Definitions.
“Fence” means a barrier erected for the purpose of enclosing space or separating parcels of land, which includes vegetation serving this purpose.
“Landscaping wall” means a barrier built to define the boundary of or enclose space that is less than four feet in height from bottom of the footing to the top of the wall and does not support, protect, or retain a regulated building.
“Lot lines” or “property lines” means the property lines along the edge of a lot or site.
1. “Front lot line” means a lot line, or segment of a lot line, that abuts a street. On a corner lot, the front lot line is the shortest of the lot lines that abut a street. If two or more street lot lines are of equal length, then the applicant or property owner can choose which lot line is to be the front lot line. However, a through lot has two front lot lines regardless of whether the street lot lines are of equal or unequal length.
2. “Rear lot line” means a lot line that is opposite a front lot line. A triangular lot has two side lot lines but no rear lot line. For other irregularly shaped lots, the rear lot line is all lot lines that are most nearly opposite the front lot line.
3. “Side lot line” means a lot line that connects front and rear lot lines. On a corner lot, the longer lot line that abuts a street is a side lot line.
4. “Street lot line” means a lot line, or segment of a lot line, that abuts a street. “Street lot line” does not include lot lines that abut an alley. On a corner lot, there are two (or more) street lot lines. “Street lot line” can include front lot lines and side lot lines.
5. “Street side lot line” means a lot line that is both a side lot line and a street lot line.
“Retaining wall” means a structure defined by ORS R404.4, Retaining Walls.
“Setback” or “setback yard” means the minimum distance required between a specified object, such as a building, and another point, measured from lot lines to a specified object. Typically, a setback refers to the minimum distance (yard dimension) from a building to a specified property line. [Ord. 547 § 1, 2021; Ord. 423 § 1, 2005].
15.15.020 Permit required.
A. Permits. All fences located on a parcel of private property within the city are subject to the provisions of this chapter and require either:
1. A permit as part of a Type I, II, or III development review pursuant to the Creswell development code and the standards of this chapter; or
2. A permit for fences constructed independent of a structure; pursuant to this chapter, may be applied for by submitting a fence permit application prior to construction or modification.
B. Fees. The associated permit fee shall be established by council resolution. [Ord. 547 § 2, 2021; Ord. 423 § 2, 2005].
15.15.030 General standards.
A. Clear Vision Areas. A clear vision area of a minimum of 15 feet in both directions must be maintained at each access to a public street and on each corner of property at intersections of two streets or a street and a railroad. This area may be increased by the staff upon a finding that more site distance is required (i.e., due to traffic speeds, roadway alignment, etc.). No new fence over three feet in height shall be placed in a vision clearance area. For public safety reasons, no variance from this vision clearance standard shall be permitted.
B. Materials.
1. Allowed Materials. Fences may be constructed of wood or certified wood alternatives; chain-link steel, iron, bricks, stone; stucco, or similar masonry; and nonprohibited evergreen plants. Note: Barbed wire fencing is only allowed along fencing that is not visible from the roadway (i.e., not in front setback) and may only be used in commercial applications.
2. Prohibited Materials. Fences and walls shall not be constructed of or contain any material that will do bodily harm, such as electric fencing, broken glass, spikes, or any other hazardous or dangerous materials. Fences shall not be made of tires, or other salvage materials not originally designed as structural components of fences. Barbed wire may not be used where visible from the roadway.
3. All fences not in compliance with this section regarding prohibited materials shall, within 10 days of notification by the city, be removed by the owner or, upon failure to remove the fence, are subject to abatement as set forth in CMC 15.15.060.
C. Height and Placement. Fences shall be built on private property and not on public right-of-way. Height limitations on fencing apply based on specific zone and setback requirements. It shall be the property owner’s responsibility and obligation to identify the property line when proposing to construct a fence upon said property line. A property survey may be required.
1. Residential Zones. As shown on the Creswell zoning map, all properties zoned low-density residential (RL), medium-density residential (RM), high-density residential (RH), and resort commercial (RC) overlay shall follow maximum heights for residential zones, as provided in Table 1.
2. Commercial/Industrial Zones. As shown on the Creswell zoning map, all properties zoned general commercial (GC), commercial industrial, and general industrial (GI) shall follow maximum heights provided for commercial zones, as provided in Table 1.
a. Downtown Commercial. Fencing of civic facilities shall be welcoming and attractive, and may not be chain-link fence.
3. Placement.
a. Front Setback. Fences built within the front setback of a residential or commercial development may not exceed four feet in height.
b. Side Setback. Fences built within the side setback(s) of a property may construct a fence up to maximum height, exclusive of the front setback area.
c. Street-Side Setback. When a fence is proposed within a street-side setback (i.e., along a right-of-way that is not the front setback), two options are available:
i. Construction of a fence at the property line (abutting the right-of-way) may not exceed four feet in height, unless compliant with Table 1.
ii. Construction of a fence set five feet back from the right-of-way may be built to maximum height for that zone.
|
Land Use Designation |
Residential Zones |
Commercial/Industrial Zones |
|---|---|---|
|
Front |
4 feet |
4 feet |
|
Rear |
6 feet |
8 feet* |
|
Side |
6 feet |
8 feet* |
|
Street Side |
4 feet, unless set back additional 5 feet (max. 6 feet) |
4 feet, unless set back additional 5 feet (max. 8 feet)* |
|
*Fences over 6 feet in height require a building permit. |
||
D. Walls and fences to be built for required buffers shall also comply with CDC 3.2.300.
E. Condition. All fences and retaining walls shall be constructed and maintained in a structurally sound manner. Fences and retaining walls which are structurally unsound shall be replaced by the owner, or are subject to abatement as set forth in CMC 15.15.060. [Ord. 547 § 3, 2021; Ord. 423 § 3, 2005].
15.15.040 Retaining wall.
A. Any freestanding property perimeter wall which is not a retaining wall shall be considered a fence and is subject to standards in this code and CDC 3.2.300 (Landscaping). Retaining walls may be constructed to the height necessary to protect a cut-fill type needed grade, but shall be a maximum of nine inches above finished grade along the fill side of the wall.
B. Where a retaining wall is located on a line separating the lots, the retaining wall may be topped by a fence. The height of the fence shall be determined by measuring from the finished grade on the fill side of the wall to the top of the fence. [Ord. 547 § 4, 2021; Ord. 423 § 4, 2005].
15.15.050 Earthen berms.
Where an earthen berm is used as a barrier in lieu of a fence, the height restrictions of this chapter shall apply and shall be measured from the ground to the highest finished grade of berm or to the top of any fence atop the berm. [Ord. 547 § 5, 2021; Ord. 423 § 5, 2005].
15.15.060 Abatement.
Within 25 days of notification from the city, all fences constructed or modified without the requisite permit, or which violate the standards herein, after the date of the ordinance codified in this chapter, shall be brought into compliance by the owner, or, upon failure to remedy the violation, the city manager or the manager’s designee is empowered to cause the removal of the fence, the cost of which shall be billed to the owner of the property, and may be recorded as a lien on the property. [Ord. 547 § 6, 2021; Ord. 423 § 6, 2005].
15.15.070 Fence variances.
Variances from the standards provided in this chapter may only be granted by the city manager or the manager’s designee pursuant to the following procedures, if the criteria set forth below is met. Conditions of approval may be placed on a fence variance approval to mitigate impacts related to approval criteria, as well as any applicable development code or municipal code criteria related to the request.
A. Approval Criteria. A fence variance may be granted if the applicant demonstrates compliance with all of the following criteria:
1. The variance requested is required due to the lot configuration or other conditions of the site.
2. The variance does not result in the removal of trees or it is proposed in order to preserve trees on the property.
3. The requested variance would not impair public health, safety, and welfare, specifically, but not limited to, vision clearance, overhead clearance (CDC 3.1.200).
4. The variance is justified by property location, dwelling orientation and conformance with overall city policy.
B. Fence Variance Procedures.
1. Preapplication Conference. A preapplication conference is recommended for fence variance applications.
2. Application Requirements.
a. Application Form. Fence variance applications shall be made on forms provided by the staff.
b. Submittal Information. The application shall:
i. Include the information requested on the application;
ii. Include a narrative statement that explains how the application satisfied each and all of the relevant criteria and standards in sufficient detail for review and decision-making;
iii. Be accompanied by the required fee, as set by council resolution.
3. Notice of Application for Fence Variance Decisions.
a. Before making a fence variance decision, staff shall mail notice to:
i. All owners of record of real property within 100 feet of the subject site.
ii. All city-recognized neighborhood groups or associations whose boundaries include the site.
iii. Any person who submits a written request to receive a notice.
iv. Any governmental agency which is entitled to notice under an intergovernmental agreement entered into with the city. The city may notify other affected agencies, as appropriate, for review of the application.
b. The purpose of the notice is to give nearby property owners and other interested people the opportunity to submit written comments about the application, before the fence variance decision is made. The goal of this notice is to invite people to participate early in the decision-making process.
c. Notice of a pending fence variance decision shall:
i. Provide a 14-day period for submitting written comments before a decision is made on the permit.
ii. List the relevant approval criteria by name and number of code subsections.
iii. State the place, date and time the comments are due, and the person to whom the comments should be addressed.
iv. Include the name and telephone number of a contact person regarding the decision.
v. Identify the specific permits or approvals requested.
vi. Describe the street address or other easily understandable reference to the location of the site.
vii. State that if any person fails to address the relevant approval criteria with enough detail, they may not be able to appeal to the Land Use Board of Appeals or circuit court on that issue. Only comments on the relevant approval criteria are considered relevant evidence.
viii. State that all evidence relied upon by staff to make this decision is in the public record, available for public review. Copies of this evidence can be obtained at a reasonable cost from the city.
ix. State that after the comment period closes, staff shall issue a fence variance decision. The decision shall be mailed to the applicant and to anyone else who submitted written comments or who is otherwise legally entitled to notice.
x. Contain the following notice:
A Notice to mortgagee, lienholder, vendor, or seller: The City of Creswell requires that if you receive this notice it shall be promptly forwarded to the purchaser.
d. Decision Requirements. Staff shall make written decisions addressing all of the relevant approval criteria and standards. Based upon the criteria and standards, and the facts contained within the record, the city manager shall approve, approve with conditions, or deny the requested permit or action.
C. Notice of Decision.
1. Within five days after staff signs the decision, a notice of decision shall be sent by mail to:
a. The applicant and all owners or contract purchasers of record of the site which is the subject of the application.
b. Any person who submits a written request to receive notice, or provides comments during the application review period.
c. Any governmental agency which is entitled to notice under an intergovernmental agreement entered into with the city, and other agencies which were notified or provided comments during the application review period.
D. Affidavit of Mailing. An affidavit of mailing of the notice shall be prepared and made a part of the file. The affidavit shall show the date the notice was mailed and shall demonstrate that the notice was mailed to the people within the time required by law.
E. A fence variance notice of decision shall contain:
1. A description of the applicant’s proposal and the city’s decision on the proposal (i.e., may be a summary).
2. The address or other geographic description of the property proposed for development, including a map of the property in relation to the surrounding area, where applicable.
3. A statement of where the city’s decision can be obtained.
4. The date the decision shall become final, unless appealed.
5. A statement that all persons entitled to notice or who are otherwise adversely affected or aggrieved by the decision may appeal the decision.
6. A statement briefly explaining how an appeal can be filed, the deadline for filing an appeal, and where further information can be obtained concerning the appeal process.
7. A statement that unless appellant (the person who files the appeal) is the applicant, the hearing on the appeal shall be limited to the specific issues identified in the written comments submitted during the comment period.
F. Final Decision and Effective Date. A fence variance decision is final for purposes of appeal, when it is mailed by the city. The decision is effective on the day after the appeal period expires. If an appeal is filed, the decision is effective when the appeal is decided.
G. Appeal. A fence variance decision may be appealed to the planning commission.
1. Who May Appeal. The following people have legal standing to appeal a fence variance decision:
a. The applicant.
b. Any other person who participated in the proceeding by submitting written comments.
H. Appeal Procedure.
1. Notice of Appeal. Any person with standing to appeal, as provided in subsection (G) of this section, may appeal a fence variance decision to the city council by filing a notice of appeal according to the following procedures:
a. Time for Filing. A notice of appeal shall be filed with the planning department within 14 days of the date the notice of decision was mailed.
b. Content of Notice of Appeal. The notice of appeal shall contain:
i. An identification of the decision being appealed, including the date of the decision.
ii. A statement demonstrating the person filing the notice of appeal has standing to appeal.
iii. A statement explaining the specific issues raised on appeal.
iv. If the appellant is not the applicant, a statement demonstrating that the appeal issues were raised during the comment period.
I. Filing Fee. The amount of the filing fee shall be established by council resolution. The maximum fee for an initial hearing shall be the city’s cost for preparing for and conducting the hearing, or the statutory maximum, whichever is less.
1. Scope of Appeal. The appeal of a fence variance decision by a person with standing shall be limited to the specific issues raised during the written comment period, unless the city council allows additional evidence or testimony concerning any other relevant issue. The city council may allow such additional evidence if it determines that such evidence is necessary to resolve the case. The purpose of this requirement is to limit the scope of a fence variance appeal by encouraging persons with standing to submit their specific concerns in writing during the comment period. Only in extraordinary circumstances should new issues be considered by the hearings body on appeal.
2. Appeal Procedures. As established in the Creswell Municipal Code, notice and hearing procedures shall be used for all fence variance appeals.
J. Final Decision. The decision of the city council regarding an appeal of a fence variance decision is the final decision of the city. [Ord. 547 § 7, 2021; Ord. 423 § 7, 2005].
15.15.080 Penalties.
Violation of a provision of this chapter is punishable by a fine not to exceed $100.00. [Ord. 251 § 2, 1981].