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Andover board denies request for 8-foot backyard fence, cites lack of unique hardship
Summary
The Board of Zoning Appeals denied a property owner’s request to raise a backyard fence from the 6-foot residential maximum to 8 feet, finding the applicant did not demonstrate the unique, statutory hardship necessary for a variance. The vote was 4–1.
An Andover Board of Zoning Appeals panel voted 4–1 to deny a homeowner’s request to install an 8-foot backyard fence at 308 West Coop Lane, concluding the applicant had not met the legal standard for a variance.
City zoning administrator David Westfall told the board the request sought relief from the 6-foot maximum allowed in residential zones. Staff concluded the application did not arise from a unique physical condition of the property, and that adjacency to a rented multifamily unit did not typically justify a variance.
Applicant Tim Wagner said he has lived at the property since 2005 and described repeated privacy intrusions from occupants of nearby rental apartments, noting prior storm damage to his fence and that immediate neighbors said they had no objections. “It’s become kind of a nuisance as far as privacy with the wife and everything,” Wagner said.
During deliberations, commissioners emphasized that the zoning code requires all statutory findings to be met before a variance can be granted. Commissioner Dan Colson moved that the chair be authorized to sign a resolution denying the variance on the basis that the five required findings were not met, citing subsection 11‑106‑b‑2 of the zoning regulations and KSA 12‑759(e). The motion was seconded by Acting Chair Gary Israel and the board voted 4–1 to deny the request.
Westfall advised Wagner that the appropriate avenue for appeal is the district court. Wagner accepted the board’s decision in the meeting but stated he believed other properties in Andover have 8‑foot fences and that he was trying to follow the rules.
The denial will be memorialized in a written resolution as provided by the zoning process; the record from the hearing and staff report will form part of that resolution.
