CITY OF LACOMBE SUBDIVISION AND DEVELOPMENT APPEAL BOARD BOARD ORDER. Issued August 2, 2016

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2 CITY OF LACOMBE SUBDIVISION AND DEVELOPMENT APPEAL BOARD BOARD ORDER Issued August 2, 2016 IN THE MATTER OF AN APPEAL by Ross Pickett against a decision by the City of Lacombe Development Authority on July 6, 2016 approving a 12 percent variance for an over-height fence to be constructed on the side property boundaries from each side of the front of the detached dwelling located at Avenue, (Lot 6B Block 32 Plan 3187RS zoned R1b), to the rear of the property boundary so that no portion of the fence exceeds the height of m from the bottom rail of the fence to the top of any supporting posts, with all work required to meet this height restriction to be completed by October 15, The appeal relates to the applicant's wish to maintain the fence's current height (up to 2.3 m or seven and one half feet). HEARD BEFORE the City Lacombe Subdivision and Development Appeal Board IN ATTENDANCE: ABSENT: Candice Campbell, Board Member - Citizen Member at Large (Acting Chair) Tom Kentz, Board Member Citizen Member at Large W.J. (Bill) McQuesten, Board Member City of Lacombe Councillor Ross Pettibone, Secretary Wayne Armishaw, Board Member - City of Lacombe Councillor (Abstention due to likelihood of bias following conversation with appellant) Jerrold Ritchey, Board Member Citizen Member at Large ALSO PRESENT: Representing the Appellant Ross Pickett, Appellant Louise Pickett, Appellant Representing the Permit Applicant (Same as above) Representing the City of Lacombe s Municipal Planning Commission Debbie Bonnett, Development Officer

3 Subdivision Development & Appeal Board Page 2 Speakers in Support of the Appeal Sharla Banzer Speakers in Opposition to the Appeal Ron Hunter Corrine Hunter Tom Kelly Upon notice being given to the interested parties, a hearing was held in Council Chambers at Lacombe City Hall in the City of Lacombe in the Province of Alberta on July 29, Development Authority s Statements: Development Authority s Statements: Deb Bonnett, Development Officer, presented a background summary of the application and the development process. The development permit application was received on June 1, 2016 for the replacement of a chain link fence with a 7 foot designer vinyl fence on the east and west side of the property located at Avenue, Lacombe Alberta, and extending from the front of the house to the rear laneway. At the time of submission of the application, the applicant indicated he would be going ahead with the construction of the fence prior to the application being presented to the Municipal Planning Commission. The applicant was advised that if construction commenced prior to the application being issued, it would be at the applicant's risk and double fees would be incurred. The applicant was advised not to construct the fence until permission was received. As construction had not commenced, the applicant was charged the normal processing fee for the development. Bylaw Considerations Bylaw Section 3.2 of the City's Land Use Bylaw exempts fences that do not exceed the maximum height from requiring a Development Permit. The Bylaw reads as follows: All development undertaken in the municipality requires an approved development permit prior to commencement except:... (4) The erection or construction of gates, fences, walls or other means of enclosure less than 1m in height in front yards, 1.8m in height in side and rear yards and the maintenance, improvement and other alterations of any gates, fences, or walls or other means of enclosure;... " Bylaw Section 9.2 Projections into Minimum Yard Setbacks

4 Subdivision Development & Appeal Board Page Projections into Rear and Side Yard Setbacks only b) Fences having a maximum height of 1.8 m. Development Comments The property in question is designated as R1b (Residential Medium Lot Single Detached Dwelling), and is located within the Central Residential District identified in the Downtown Area Redevelopment Plan. This district is characterized primarily by low density single family residential land uses with a small mix of medium and higher density residential uses as well as several public / institutional uses. The existing built up area is anticipated to remain as a stable low density neighbourhood with support for single family infill and opportunities for multi-family infill development at strategic locations along major roadways and in proximity to schools and public facilities. Neighbouring property consultations with 16 property owners within a 60 m radius were sent out on June 8, The consultation resulted in eight responses, five in support of the application and 3 opposed. On June 13, 2016, it was brought to the attention of the Development Department that construction of the over height fence had commenced. The Department contacted the applicant to require all construction to cease until such time as the full approvals were in place. The applicant was further advised (via an from the Manager of Planning and Development) that double fees were now required on June 14, The additional fees were received June 17, On June 23, 2016, the City measured the fence at the rear of the property. It was noted that the fence is actually 2.23 m (88 inches) and the posts are 2.3 m (91 inches) in height. Section 3.2 (4) of the Land Use Bylaw 300 requires development permits for fences exceeding 1.8 m (70.8 inches) in height on side and rear yard fences, stating All development undertaken requires an approved development permit prior to commencement, except - the erection or construction of gates, fences, walls or other means of enclosure less than 1 metre in height in front yards, 1.8 meters in height in side and rear yards and the maintenance, improvement and other alterations of any gates, fences.. Thus a variance of 29 percent was requested to the permitted fence height. The fence as proposed and existing is/will be constructed of designer vinyl, consisting of posts, vinyl panels and a decorative top section with closely spaced spindles. Approximately 116 feet (35m) of fence will extend between the house front and the rear property line on the east and west sides, with both sides shared with neighbouring residential properties at the same grade. It should be noted that variances for maximum heights of fences or other means of enclosure have been granted in the past. This has typically occurred when there is a difference in topography between two lots or on the occasion when a lot backs onto the side of another lot, both of which would create privacy issues between the two parcels.

5 Subdivision Development & Appeal Board Page 4 Also previously approved has been the location of a hedge under "other means of enclosure" on the perimeter of the parcel which exceeded the maximum height, but was compatible with what was existing in the area. In the case of the need for a higher fence on this particular parcel, there appears to be minimal differences in topography between the lot on which the fence is to be located when compared to the lot on each side of the subject parcel. The Department is unaware of overheight fence approvals requiring this great of a variance when the yards appear to be of a similar topography and shape. There is also no noticeable difference in height between the houses immediately adjacent the applicant s property. This means that no rear deck should they exist on adjacent properties will immediately overlook the applicants' property. It appears that construction may have continued after the applicant was advised to stop as there are now 3 rails (top, middle and bottom) have been constructed. In the opinion of the Development Authority, a fence height variance of 29 percent from is excessive given minimal topography differences and similar adjacent building heights, and should be no greater than 10 percent of the Land Use Bylaw regulation (1.98 m or 6 feet 6 inches in height at the highest point including posts). The Development Authority saw no compelling planning rationale to grant a 29 percent variance of 0.46 meters (18 inches). Appellant s Statements: The Appellants (Mr. Ross Pickett and Louise Pickett) presented statements in support of their appeal, and brought a fence display sample with them. 1. The Appellant (Ross Pickett) stated the reason for having a 7 and a half foot fence was that it was maintenance free and provided them with privacy in their back yard as well as the owners adjacent to their property. They would not be looking directly at them when they are on their deck or vice-versa. The fence along the rear remains as it is currently, with the possibility in future of adding privacy slats (within the chain link). 2. The Appellant stated, as noted in the participant package, that there were letters from adjacent owners stating agreement with the height requested. As well, there had been other letters within the 60 m radius favouring the fence. The new neighbours adjacent were also in favour. The fence was designed to be aesthetically pleasing to the eye as it was a designer fence, and one of a kind. The company that designed the fence would like their display sample back in the showroom as there are others that would like to have a similar fence. When the fence was being designed, it was apparent a shorter height did not enhance the fence. The design gives them privacy. The fence height will diffuse our landscaping lighting at night and not be offensive to our neighbours. The fence

6 Subdivision Development & Appeal Board Page 5 materials were from Salt Lake City, Utah, and each post section is routered to give the fence a uniform look in a unique and amazing process used to develop a designer fence. Sections are custom designed to look symmetrical to the posts. 3. The appellant stated that MPC approved a variance of 12 percent to allow an over-height fence, which is meters and they had requested 90 inches (2.29 meters) which is a variance of about 25 percent, not 29 percent inches was the actual height as measured by the appellant. Ground landscaping was completed and has changed the topography. The request was for an additional 8 to 9 inches difference from what MPC approved, so we are not talking an astronomical amount. The appellant agreed there was no doubt it was over what the bylaw allows. 5. The Appellant stated that in their area of the City there are hedges that exceed 72 inches and 66 inches, some hedges are maintained and others are allowed to grow uncontrollably, stating they had pictures to prove this, and would pass these out after they make their presentation (the Board did not accept the additional photographic material). 6. The Appellant stated that the fence had no maintenance whatsoever other than wash down, for adjoining neighbours, asking would you rather have this type of fence, maintenance free or a hedge that is allowed to grow wild? 7. The Appellant stated he was aware that an 8 foot privacy fence had been allowed in Elizabeth Park, and indicated he would like his privacy as well, stating the City had set a precedent. 8. The Appellant stated that those driving down the alley liked what is constructed and commented they wouldn t have any problem if it was next to them, and that the current neighbours were the only ones that are really impacted. The Appellant stated there were probably other fences that exceed height variance throughout the city, asking the SDAB that they grant their request to allow them to have the overheight fence completed so they can enjoy the privacy of their back yard, and stated that constructed fence portions were there prior to direction given to them to cease construction. 9. The Appellant (Louise Pickett) stated they had done a lot for the neighborhood and helped those in need, and when they first moved to this property they had several spruce trees that got to a height that was unsightly and unsafe to their property and others. When the trees were removed, the chain link fence was installed which was the only option at that time for a maintenance free fence, as vinyl fences did not make the grade. Chain link did not provide privacy from the existing deck and yards and did not provide screening if anyone s property care had faltered. The height of the designer fence provided privacy for all for us and the neighbours. Many neighbors had commented they would like a fence like that too as it was maintenance free, aesthetically pleasing and looks good for years to come. They did not want lattice for privacy which warps and cracks and is not appealing at all. They wish to enjoy their property for the time they choose to remain there. As of late unknown persons have inquired to purchase their property and are looking for privacy and not a postage stamp size lot. 10. The Appellant asked that a height of 7.5 feet be granted and did not feel it was unreasonable considering how the neighborhood is changing and how the future

7 Subdivision Development & Appeal Board Page 6 development of Lacombe could look for zoning of properties. A higher privacy fence had already been approved at 8 feet in Elizabeth Park. It has been stated there is not a topography issue in our and adjoining neighbor s property. Until the grading was done we have a twelve to 18 inch drop and had water problems from a neighbour blowing snow into our yard which is how this started. We know variances were granted with greater impact than this request. 11. The Appellant stated they would not be commissioning another fence, that trees and chain link fence did not serve the purpose, and wanted to retain the vinyl fence according to what is decided, again stating they would prefer to leave it at the height they already have, since to re-do rails, the fence posts have to be taken off or re-routered or replaced on 34 posts on both sides of the fence. 12. The Appellant stated the fence went up quickly due to a landscaper arriving who wanted it in place before he started increasing the property grade to reduce the risk of water in their basement (as a result of snow being blown into the hedge area). 13. The Appellant stated the chain link fence is gone due to hail storm damage and the insurance company supported it. Various posts to be used measure 7 feet, 7 and a half feet, and 8 feet two inches. 14. The Appellant asked a question about process and the Board responded that the letters included in the package were read in advance of the hearing. Speakers in Support of the Appellants: Ms. Sharla Banzer presented statements in support of the Appellants at the hearing. 1. Ms. Banzer, a neighbour to the East, stated she had been there for four years with kids and dogs and when outside she can sit around their campfire and her neighbours can sit on their deck in privacy. She had spoken to people on the street who liked the fence and got all kinds of remarks, giving her the impression the complaint is purely vindictive in nature. She believed the fence was an upgrade to her property and borders her property directly, believing that it increases her property value. She did not understand why people are appealing something that is going to increase property values for everyone there, stating that privacy is something everyone likes regardless of neighbour relations. The fence on the other side of her property is an old brown wooden fence, and across the alley a wooden fence that is showing weathering after three years. She appreciated the easy maintenance as a homeowner and believed hedges were tacky and chain link was industrial looking, and that this meeting was pointless. Speakers in Opposition to the Appeal: Mr. Ron Hunter spoke in opposition to the appeal, stating there was no disputing the fence was gorgeous. He asked if this fence was allowed, his concern was that if he put up a fence, was he going to be allowed to work under the same bylaw code that Mr. Pickett was?

8 Subdivision Development & Appeal Board Page 7 Ms. Corrine Hunter spoke in opposition to the appeal, stating she had no issue with the MPC approved variance of 12 percent and that the fence was gorgeous. She did not understand why someone buying a fence from Utah did not do the paperwork ahead of time and obtain approvals before the erection of the fence. She asked if she put money into a fence on her huge corner lot, if she had to go to Utah and order a fence like this to keep everything fairly similar, since everyone is talking about aesthetics, and asked if a variance application was needed to match the height of the Pickett s fence. She stated she would want to apply and ensure her papers are in order prior to ordering her products. Her concern in her neighborhood was that steps weren t taken properly. She believed if she was in the Pickett s position she would find herself at the appeal board. She stated she agreed with the 12 percent variance and wanted to know if when she did her fence that she would not have to come back to the subdivision development appeal board in order to get her fence put up. Mr. Tom Kelly stated he was here to discuss the height of the fence, not Elizabeth Park, and not Aesthetics, and what the appellants were doing in his neighborhood. He stated the height of fences in Lacombe is regularly 6 feet. If anyone gets a variance of any percentage, such as 5 percent next year, and 10 percent the year after, and 50 percent where is it going to end? He asked can we not keep it where it is and stop relating to everything everywhere else, stating we are dealing with this issue, this fence and these homeowners. He asked who decides what the bottom rail should be for height calculations asking is it the bottom rail to the top of rail, or rather a measurement off of grade rather than measurement off of the bottom rail because the bottom rail can be put anywhere. He stated the neighbor s height is 6 feet on average, and everyone is around the 6 foot mark. If someone went higher, they did it on their own or got permission. Additional Statements: The Development Authority was asked questions by the Board: 1. Further information was provided by the Development Officer on Section 9.2 of the Land Use Bylaw 300. If the fence is within that projection and the maximum is 1.8 m, in that instance there is no place in the bylaw where you measure 1.8, grade or 2 inches off the ground, in all fairness when I did measure I measured from the bottom rail to the top rail which was 88 inches (7 feet 4 inches) with posts of 91 inches, which resulted in a variance of 29 percent from the Land Use Bylaw s permitted 1.8 m. 2. Clarification was provided on total letters received with 7 area properties in support and 2 area properties opposing the fence at its current height.

9 Subdivision Development & Appeal Board Page 8 The Appellants (Applicants) were asked several questions by the Board: 1. The Appellant informed the Board that the west side of the property is fenced, and the east side of the property is the three rail portions on posts that remains incomplete, after receiving a request from the City to stop construction which was complied with. 2. The Appellant responded to a question that the issue is the height of the fence and not the type of fence. 3. The Appellant confirmed that both adjacent side neighbours were in support of the fence. 4. The Appellant stated the back fence across the property was remaining and may end up with privacy slats in it since traffic in their alley had increased over the years with high school students parking and driving up and down. 5. The Appellant noted that within his block there are posted placed for a possible fence and posts placed for a gate that exceed 7 feet, and there is nothing done about it, and they have never made an issue of it. The appellant stated they wanted their privacy, and that the fence is only 5 inches wide in total and going up 7 and one half feet, believing you re not impeding anyone by going up. 6. The Appellant noted the neighbours to the West have a raised deck and that he also had a bit of a raised deck, and with the fence in place now both parties can be on their decks without seeing each other. 7. The Appellant stated neighbour children play in their yards and the fence provides division and a benefit to neighbours, and that there are places around town where hedges have been left unattended and look unsightly, and did not condone high hedges, emphasizing that any further construction was ceased when an was received from the City. 8. The Board confirmed that hedges must be trimmed properly per City regulations. 9. The Appellant confirmed he applied for a permit to construct a fence of 7 feet in height, indicating the contractor hired to construct the fence called it a 7 foot fence and stated he had not measured it until after he started building it and it ended up being 7.5 feet (90.5 inches to the top of the post with the cap on top to the bottom rail). The Appellant stated the dimension form the bottom rail to the top rail was 87 inches, and about 8 inches from the top cap to the bottom rail. 10. The Appellant confirmed at the time of application part of the fence was constructed and only an estimate made of its height at the front area, where fill would be placed for height and sloped to prevent water from coming into the back yard and into the basement. Landscapers when putting in a retaining wall and walkway had put in close to about a 12 inch rise. 11. The Appellant stated dirt now covers part of the bottom rail for collecting and changing the route of water. 12. The Appellant stated they had a specific time frame to get the landscaper work and went ahead, not denying he went against the system, confirming that with the recent rain no water issues were experienced. 13. The Appellant stated that the Mayor at MPC had stipulated 6.5 feet and calculations were from the bottom of the bottom rail up to the top and asked for clarification of height. Subsequently the Development Officer responded and

10 Subdivision Development & Appeal Board Page 9 stated that MPC used measurements from the top of the posts (at maximum height) to arrive at a variance of 12 percent (at m or 6 feet 7 inches), which was over 10 percent to allow leeway for the post heights. Ms. Banzer was asked further questions by the Board: 1. Ms. Banzer confirmed she had no written proof of property value increases with the fence, and that she was only stating her opinion. FINDING OF FACTS 1. A development permit application was made on June 1, 2016 to replace a white vinyl chain link fence with a custom 7 foot (2.13 m) designer vinyl fence on the east and west sides of the property. 2. The City of Lacombe Planning Department refused the application and referred it to the Municipal Planning Commission (the City of Lacombe Development Authority) because the variance requested for the existing and proposed fence was greater than 10 percent (from the permitted 1.8 meters). 3. A portion of fence on both sides was constructed without the benefit of a permit with posts measuring 2.3 meters in height (91 inches or 7 feet 7 inches) and 0.52 meters higher than the 1.8m allowed without permit, and remains higher than the 2.016m subsequently permitted by the Municipal Planning Commission (MPC). 4. Fence height as specified by the MPC is measured from the bottom rail to the top of the posts and MPC permitted 79 inches (6 feet 7 inches) (2.016 m). 5. Allowable fence height in Land Use Bylaw 300 is 1.8 m or less (70 inches). Bylaw 300 states that development not requiring a permit includes The erection or construction of gates, fences, walls or other means of enclosure less than 1 metre in height in front yards, 1.8 meters in height in side and rear yards and the maintenance, improvement and other alterations of any gates, fences, or walls or other means of enclosure. 6. The underlying property is designated as R1b (Residential Medium lot single detached dwelling) and is contained as District G (Central Residential District) in the Downtown Area Redevelopment and Urban Design Plan. 7. The property at Avenue is subject to the Municipal Land Use Bylaw 300 (3.2) stating: All development undertaken in the Municipality requires an approved development permit prior to commencement. 8. The applicant was not willing to reduce the height of the existing and proposed fence as requested by the Development Authority to meters (6 feet 7 inches) from its current height of 2.3 m (7 feet 6 inches), a difference of approximately 11 inches. 9. The applicant submitted that the reason for the over-height fence is to enjoy their privacy.

11 Subdivision Development & Appeal Board Page 10 DECISION Having considered the written, verbal and photographic evidence submitted in consideration of the above, the Board makes the following decision based on the reasons set out below: The appeal put forward by the Appellants is DENIED, and the Board UPHOLDS the development permit and decision of the City of Lacombe Development Authority to approve the development permit application, with amended conditions below. The appellants request to maintain the fence s current height with a 29 percent variance for a finished height of 2.3 m is refused. The following conditions are appended to the July 7, 2016 Development Permit 61/ (2016): - The approved development shall be completed in its entirety, in accordance with the approve plans and conditions, by November 16, Upon development completion the Planning Department shall be contacted to request a site inspection. - Should the subject fence be demolished at any time in the future, any new fence erected on site without permit shall comply with the minimum requirements of the Land Use Bylaw (1.8 m in height in side and rear yards). REASONS The Board rendered its decision for the following reasons, pursuant to Section 687(3) of the Municipal Government Act: 1. The Board notes that the appeal (by the applicant) pertains to an approval by the Development Authority of a development permit application for an existing and proposed fence with a 12 percent height variance to be constructed on the side property boundaries from each side of the front of the detached dwelling located at Avenue, (Lot 6B Block 32 Plan 3187RS zoned R1b), to the rear of the property boundary so that no portion of the fence exceeds the height of m (6 feet 7 inches) from the bottom rail of the fence to the top of any supporting posts, with all work required to meet this height restriction to be completed by October 15, 2016, and the applicant s prior request for a higher existing and proposed fence. 2. The Land Use Bylaw (4) requires a development permit for side and rear yard fences greater than 1.8 m in height: All development undertaken requires an approved development permit prior to commencement, except - the erection or construction of gates, fences, walls or other means of enclosure less than 1 metre in height in front

12 Subdivision Development & Appeal Board Page 11 yards, 1.8 meters in height in side and rear yards and the maintenance, improvement and other alterations of any gates, fences. 3. The proposed development is a discretionary use. The Development Permit application can either be granted or refused on the basis of sound planning considerations, and requires a height variance of the Land Use Bylaw. 4. The Development Authority approval for a maximum height of m or 6 feet seven inches requires modifications to constructed fence portions, and was based as well on the lack of variation in topography with adjacent properties, and the need for consistency of fencing or rear yard enclosures throughout the community. 5. The Board agrees with the opinion of the Development Authority that fencing or other means of rear yard enclosures for all properties need to be relatively consistent in Lacombe and that due process had not been followed. The variance requested is substantial in impact and size (0.52 meters (approximately 20 inches from permitted height), and would represent a 29 percent variance to the Land Use Bylaw. 6. The Board found that a fence of 2.3m is not typical in the area and community. 7. In reviewing and weighing the evidence, the Board finds a fence no higher than metres appropriate from a planning perspective. 8. The fence as constructed would abandon principles regarding fence heights as noted in the Bylaw the intent of which is to ensure consistency in appearance of fences and not out of character with adjacent fences, and has uncharacteristic mass due to the height. The requested variance was deemed to be unreasonable and therefore the appeal was denied. 9. The Board finds the appellant provided insufficient planning rationale in support of the application. The Board finds the arguments and evidence in support of the fence height variance not compelling enough to overturn the decision of the Development Authority. 10. Based on the evidence, the Board finds that the requested additional variance warrants refusal. 11. A development permit shall be issued with the above listed additional conditions of approval.

13 Subdivision Development & Appeal Board Decision - July 29, 2016 Hearing Page 12 DATED AT THE CITY OF LACOMBE this 29th day of July, Candice Campbell, Acting Chair NOTE: Pursuant to the Municipal Government Act S.A c. M-26, s 688, an appeal lies to the Alberta Court of Appeal on a question of law or jurisdiction with respect to a decision of the Subdivision and Development Appeal Board. An application for leave to appeal must be made to a judge of the Court of Appeal within thirty (30) days after the issue of the decision sought to be appealed, and notice of the application must be given to the Subdivision and Development Appeal Board and any other persons that the judge directs.