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HomeMy WebLinkAboutRadin Fence Appeal (2)Date: October 11, 2021 Project Name: Radin Special Fence Permit Land Use File Number: LUA21- 000319 Project Manager: Angelea Weihs, Associate Planner Owners: Benjamin Radin, 274 Thomas Ave SW, Renton, WA 98057 Project Location: 274 Thomas Ave SW, Renton, WA 98057 Parcel Number: 2143700404 Appeal of Denial for LUA21-000319 This document is an appeal of my special fence permit application, LUA21- 000319, and the denial dated September 28, 2021. I am appealing this decision primarily based on two factors: (1) the scale comparison stated in the denial is factually incorrect; and (2) the determination that a Code compliant fence would provide sufficient privacy does not address the need for privacy based on noise from the Earlington Park, as opposed to just visual sight lines. Factual Background My home is adjacent to Earlington Park. The Park is presently enclosed by a chain link fence that is 6 feet high. I proposed replacing my 6-foot fence and 2-foot privacy screen with an 8-foot fence and 2-foot privacy screen. Analysis To obtain a special fence permit, I must meet the four criteria set forth in RMC 4-4- 040G.2. The City denied the permit, finding that I failed to meet the criteria regarding scale (RMC 4-4-040G.2.b) and aesthetics (RMC 4-4-040G.2.c.). The City also determined that there were other ways to obtain privacy. The City’s determination was erroneous. RMC 4-4-040G.2.b RMC 4-4-040G.2.b requires that the proposed fence “not detract from the quality of the residential neighborhood by being out of scale or creating vast blank walls along public roadways” (emphasis added). The proposed fence is not out of scale with what is authorized under the Code. The Code allows (and the existing fence is) an 8-foot fence (6' + 2' privacy screen = 8'). The proposed fence is a 10-foot fence (8' + 2' privacy screen = 10'). The proposed fence is only 2 feet higher than Code, which is only a 25% increase. The additional 2 feet of fence is needed because of the height difference of the two properties. Earlington Park is at least two feet higher than my property. The City’s conclusion that my proposed fence is “nearly double the allowed maximum height of a compliant fence" is incorrect and misrepresents the scale comparison. Such a fence would have been 16 feet high, which is not what I have requested. My proposed fence, which would be only 2 feet or 25% taller than the Code allows, is not “out of scale.” RMC 4-4-040G.2.c. RMC 4-4-040G.2.c. requires that the proposed fence “complements the environment it serves in an aesthetically pleasing manner.” Due to the elevation difference between my property and the Park, when viewed from the Park, my proposed fence will be the same height as if the City built an 8-foot (6' + 2' privacy screen) fence at grade in the Park. Because my fence begins at least two feet below the height of the Park, it will appear to all intents and purposes from the Park like a 6' + 2' fence1. The only people who will see the additional height are those on my property. The City’s conclusion that the aesthetic impact of the proposed fence “would result in a barrier along a public space that would be nearly double the allowed maximum height of a compliant fence” is a continued misconstrual of my proposal and is clearly erroneous. In addition, the Park is currently surrounded by a 6-foot chain link fence which is not aesthetically pleasing. The barrier between the Park and my property already exists. A higher fence built in a traditional wood style will not detract from a person’s enjoyment of the Park in any fashion. The City also believed that the proposed fence would be “inconsistent with the yard attributes of the surrounding single family neighborhood. This is also erroneous. There is no other fence near the proposed fence, except for the chain link fence. The nearest wood fences adjacent to other sides of the Park are at least 200 feet away from my proposed fence. There is no fence on the south side of my property. Since my property is at least two feet lower than the Park, the proposed fence appears to be a Code compliant fence when viewed from the Park. In fact, contrary to the City’s decision, the fence “complements the environment it serves in an aesthetically pleasing manner.” RMC 4-4-040G.2.a RMC 4-4-040G.2.a requires that the proposed fence “improves the privacy and security of the adjoining property.” The City determined that this criteria was not met because “screening and privacy concerns could be remedied with a Code compliant solution” including a standard 6’+2’ fence and privacy screen, and an arbor/trellis with vines or other vegetation. Although such an alternative may exist, that is not a legal basis on which to deny the proposal. The Code section does not speak of alternatives, nor does it provide for denial if an alternative proposal can be imagined by the City. The Code section only requires that the proposed fence improve privacy and security. It cannot be questioned that a 10-foot fence would provide greater privacy than an 8- foot fence, especially when the property at issue is located next to a Park and is at least 1 See Exhibit A. 2 feet lower in elevation. There is a bedroom window that is 20 feet from the property line and a Code compliant fence would not completely block all sight lines from the Park into the bedroom window due to the elevation difference and the play structure 2. The City did not address the noise issues that arise from living alongside a park. During spring and summer months, Park maintenance crews run extremely loud equipment at the Park on a weekly basis, starting as early as 8:00 am. The equipment predominantly used is a riding mower, which generates sound levels of at least 96 dBA3. This mower comes within 25’ of my bedroom window. Using the inverse square law to calculate the decibel level at the window, that equates to sound levels in excess of 78 dBA at my bedroom window4. As the maximum noise level permitted in a residential neighborhood is 55 dBA, the noise level at my bedroom window is at least 15 dBA higher than the maximum allowed sound level. As the noise persists for longer than 1.5 minutes during a 1-hour period, the noise violates the City’s noise level regulations (WAC 173-60-040). In addition to the City’s maintenance work, there are routinely parents and young children at the Park in the mornings. I hear children shouting and screaming as early as 7:30 am on a regular basis during the spring and summer months. Less frequently there will also be people hanging out in the Park making noise until well past midnight. Only a solid structure such as the 8’+2’ fence I proposed will offer any level of noise reduction, as the privacy screen and vegetation do not provide any significant reduction in sound levels. If the solid portion of the fence is limited to 6’, with the elevation difference of at least 2’ between the properties, there is no solid barrier between the noise sources and my bedroom window. Only the proposed fence provides additional protection from the noise, which “improves the privacy and security of the adjoining property.” The proposed fence is a much better solution than calling the police multiple times a week to file noise complaints whenever someone is too loud at the Park, including the City’s maintenance crews. Conclusion In conclusion, the denial of my special fence permit was based primarily on the City’s belief the proposal was twice the height allowed by the Code, rather than 25% higher. The City also failed to address the noise problem from living alongside a Park. The City’s denial of my special fence permit application was clearly erroneous, and since the application meets all four of the criteria of RMC 4-4-040G.2, my application should be approved. 2 See Exhibit B. 3 https://www.chem.purdue.edu/chemsafety/Training/PPETrain/dblevels.htm (please note that the listed decibel level in this reference is for a standard power mower, the City uses an even larger industrial machine which likely emits even higher decibel levels). 4 SPL₂ = SPL₁ - 20 * log (R₂ / R₁) where SPL₁ is the Sound Pressure Level at point 1, SPL ₂ is the Sound Pressure Level at point 2, R₁ is the distance from the sound source to point 1 (assumed to be 1m/3.281ft unless otherwise stated), and R₂ is the distance from the sound source to point 2. Therefore, the noise level at the bedroom window (SPL₂) can be calculated as 96 – 20 * log (25/3.281) = 78.36dBA. Exhibit A – Photograph taken from the Park of a 5’-7” tall person, picture taken by a 5’- 9” tall person. The red horizontal line shows the height of a Code complaint fence (6’ + 2’ privacy screen = 8’ total). The green horizontal line shows the height of the proposed fence (8’ + 2’ privacy screen = 10’ total). The yellow horizontal line shows the height (6’) of the solid portion of a Code compliant fence. Due to the elevation difference between the Park and my property, it can be clearly seen that any fence built along the property line will appear to users of the Park to be at least 2’ shorter than it actually is, meaning the proposed fence (8’ + 2’ privacy screen) will appear to all intents and purposes from the Park like a 6' + 2' fence. Furthermore the solid portion of a Code compliant fence does not provide much, if any sound blocking for the bedroom window (left). Exhibit B – Photograph taken from the top of the play structure showing the existing Code compliant fence and bedroom window (left). The Code compliant fence does not block all sightlines to the window. In addition, the solid portion barely covers any of the window meaning there is little to no noise reduction offered by a Code compliant fence. Only the proposed fence, with 8’ of solid fencing and a 2’ privacy screen, offers privacy from both visual and auditory intrusion.