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Building Board denies retroactive fence variance after neighbor survey, drainage concerns
Summary
The Elm Grove Building Board on May 5 denied a retroactive variance sought by Nancy Brophy for a nearly 7-foot solid fence at 575 Park Circle, citing noncompliance with ordinance standards and an unresolved property-encroachment and drainage dispute; the motion passed 6-2.
The Elm Grove Building Board on May 5 voted 6-2 to deny a retroactive variance request from Nancy Brophy for a nearly 7-foot-tall solid fence adjacent to her patio at 575 Park Circle.
Chairman Olson opened the public hearing and Zoning Administrator Sowl reported staff measurements showing the fence is just under 7 feet tall and just over 18 feet long. Neighbor Monte Nuckols told the Board a state-flagged survey by Jahnke & Jahnke dated Sept. 17, 2025 "revealed the fence encroaches approximately 6 inches onto my property," and he said that a planned structural and drainage repair by Foundation Pros requires 24 inches of working width along the shared wall — while the current distance between the wall and the fence is 17 inches — which he said would prevent necessary repairs if the fence were extended to the building.
John McNally, vice president of the Park at Elm Grove Homeowners Association, urged the Board to accept the HOA's view that developer documentation may supersede the plat survey and said the HOA favors leaving the fence in place. Zoning Administrator Sowl summarized three written comments from nearby residents supporting the variance on aesthetic and safety grounds.
"The fence serves as a critical safety feature for me," said Nancy Brophy, who told the Board the fence is adjacent to her patio door and necessary for safe entry and exit, particularly if she were using a walker or wheelchair. Brophy also said she would cooperate on an easement if needed to allow repairs.
Board members weighed safety and visual concerns against ordinance requirements. Trustee Stuckert said a solid, nearly 7-foot fence "is significantly out of compliance" with the zoning definition of an architectural screening device, which must be connected to a principal structure, comply with district setbacks, be no taller than 4 feet, and be 20 feet or shorter. Several members expressed concern about setting precedent for similar solid fences in new residential construction with narrow setbacks.
Mr. Roge moved to deny the variance; Mr. Thedford seconded and the motion passed 6-2, with Mr. Matola and Mr. DiFonzo opposed. After the vote Zoning Administrator Sowl clarified that denial means the existing fence cannot remain as-is; Brophy may, however, alter the fence to comply with Village ordinance (for example, reducing height and making it at least 50% open) and a compliant fence situated on her property could be approved administratively.
The Board did not resolve the civil property-boundary dispute raised by the neighbor, and members emphasized that the Village cannot authorize a structure that sits on another person's property.
