Englewood board denies request to keep 8-foot privacy fence at 4983 S. Fox St.

The Englewood Board of Adjustment and Appeals on Tuesday rejected a variance request to allow an existing 8-foot privacy fence to remain at 4983 South Fox Street, voting 1-4 to deny the motion to approve the variance.

The applicant, Wilder Wells of 4983 South Fox Street, asked the board to allow the taller fence in the R-1A zone, saying a roughly 2-foot downward grade across his lot makes strict application of the 6-foot rear-yard fence limit unduly burdensome. Will Charles, community development staff, recommended denial, saying the neighborhoods slope is widespread and does not meet the codes requirement that the physical condition be unique to the parcel.

"Staff is recommending denial of the variance," Charles said during the hearing. "Properties to the west of it all have this sloping conditionwhich is also this issue that staff found, that this is something that is a neighborhood wide thing that the property is all sloped, rather than just this individual property."

Wells told the board he built the fence to protect privacy and safety for his household and said the roughly 2-foot drop across his yard made the fence appear taller at the rear. "The challenge is that my property has a downward slope of a little more than 2 feet," Wells said. He said he considered alternatives such as a retaining wall but found them more expensive and disruptive to neighbors.

Under the city code cited at the hearing, fence height is measured at the grade where the fence stands; primary structures use an average of the four corner elevations. Staff noted a neighbor dispute over the exact rear property line and recommended, as conditions in the event of approval, that the applicant obtain a building permit for portions of the fence constructed without a permit and provide a survey or improvement-location certificate stamped by a licensed surveyor verifying the fence location.

Board members debated whether the lots slope met the variance criteria, including whether the hardship was self-imposed because the fence had been built without a prior permit. Several members said the slope described by staff and the applicant was not sufficiently unique in the neighborhood to meet the first criterion for a variance; one board member argued the variance process should allow individualized relief and suggested that requiring retaining walls (the code alternative) could be more disruptive or less safe in some instances.

When members voted on a motion to approve the variance with the two staff conditions, the motion failed. The roll-call results recorded in the hearing were: Cole, nay; one female board member, yes; Friesen, no; Koenig, no; Chair Taylor, no. The boards formal motion would have authorized a variance to Section 16-8-6, table 8-6, of the Englewood Municipal Code to allow the 8-foot fence to remain if the conditions had been met.

The board also noted a related administrative matter: board member Collins submitted a resignation because he is moving out of Englewood, and staff said it plans to return to the board within one to two months with proposed clarifications to the citys short-term rental waiver procedures.

Because the motion failed, no variance was granted and the fence remains a code enforcement matter; staff said a building permit application is under review but cannot be approved to show an 8-foot fence while the variance process is unresolved. The boards decision can be appealed to a court of record within 30 days, and staff said any approved variance would become effective at the end of the appeal period and require that construction begin within 180 days of the variances effective date.