Staff Report September 20, 2007

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Scott Milks


Staff Report

September 20, 2007


Scott Milks


Staff Report

September 20, 2007


Petitioner is requesting a 15’ side setback from Checkers Lane instead of the required 25’ for a 6’ tall privacy fence. The fence was originally planned to extend within 1’ of the sidewalk but petitioner removed a portion of it when he became aware of the zoning violation. Now he would like to have the fence 15’ from the property line. The property is commonly known as 53 Trent Court, located in Brookfield Heights Subdivision, Perry 19 (SW) 23.


This lot and all surrounding properties are zoned R1, single-family residential.

The last variance filed for property in the area was for a front setback of 20’ instead of the required 25’ (BZA-1497). That case was dismissed by the Board in 1999 because the signs were never posted on the property. The house was eventually built at the required 25’ setback.

A visit to the site reveals a partially completed privacy fence close to the sidewalk. According to petitioner, he has removed the portion of the fence closest to the road. Staff also noticed that there are several fences in this subdivision that also appear to violate the required 25’ setback from the street.

The lot in question and all surrounding lots are occupied by single-family homes.

The home sits at the corner lot of Checkers Lane and Trent Court; both are classified as local roads requiring a 25’ building setback.


The homes in Brookfield Heights are served by sewer and water.

There is a 15’ drainage and utility easement platted along Checkers Lane; petitioner’s fence is clear of this easement.

The County Building Commission received a complaint from a neighbor that a 6’ tall privacy fence was being built next to the sidewalk. Per UZO Section 4-1-b-9-B, fences taller than 42” must meet the standard setback. In this case, the standard setback from Checkers Lane is 25’ per the zoning ordinance and the subdivision plat. Once notified about the violation, the petitioner met with the Building Commission and APC staff to discuss the situation. Petitioner explained how he went through the Brookfield Heights home owners’ association for review and approval of the fence, but did not consult the Building Commission because he knew the county does not issue permits for fences. Petitioner has willingly removed the portion of the fence closest to the street so that it would be out of the utility and drainage easement.

The unnecessary hardship standard in the ordinance states that a hardship shall not be self-imposed nor self created. The definition goes on to state that self- imposed situations are not hardships and any improvement made in violation of the ordinance is self-imposed. Because this fence was constructed in violation of the ordinance, the situation is self-imposed and cannot be considered an ordinance-defined hardship. Additionally, petitioner could build a complying privacy fence without a variance.
Regarding the ballot items:

  1. The Area Plan Commission at its September 19, 2007 meeting determined that the variance requested IS NOT a use variance.

And it is staff’s opinion that:

  1. Granting this variance WILL NOT be injurious to the public health, safety, and general welfare of the community because it will not interfere with the vision triangle at the Checkers Lane and Trent Court intersection. Also, there are no driveways in this blockface of Checkers Lane, so the vision of motorists entering the street would not be impaired.

  2. Use and value of the area adjacent to the property included in the variance request WILL NOT be affected in a substantially adverse manner because the adjoining property’s backyard abuts petitioner’s backyard.

  3. The terms of the zoning ordinance are being applied to a situation that IS common to other properties in the same zoning district because there is nothing unusual about this lots shape, size or topography. Corner lots, although they might present design challenges, are common in this subdivision.

  4. Strict application of the terms of the zoning ordinance WILL NOT result in an unusual or unnecessary hardship as defined in the zoning ordinance because adequate room exists for a 6’ tall privacy fence to be built in a complying location.

Note: Questions 5a. and 5b. need only be answered if a hardship is found in Question 5 above.

5a. The hardship involved IS self-imposed because it is petitioner’s desire to have a larger fenced-in area in his yard and a complying privacy fence could be built.

5b. The variance sought DOES NOT provide only the minimum relief because there is no hardship, thus there no minimum relief.



Please be aware that the covenants for Brookfield Heights Subdivision (Section 3-xiii-1 and 6) indicates that fences are limited in height to 4’ and no fences are allowed on corner lots “between the building setback line and the side and front of the house facing the two respective streets.” The covenants are only enforceable by the Home Owners Association and not the Area Plan Commission.

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