Agenda Number: BZA 15-06
Meeting Date: April 23, 2015
REPORT TO THE BOARD OF ZONING APPEALS
SUBJECT: 114 W. Graycrest – Request approval of a
variance to allow a fence to exceed the maximum height of
6 feet in a rear and side yard.
1.
2.
INTRODUCTION: Benjamin Maxwell, owner of the
property at 114 W. Graycrest, is requesting Board of 3.
Zoning Appeals (BZA) approval of a variance to allow a
gradual increase in height of the fence up to 10 feet as it 4.
moves along the downward slope of the backyard
maintaining a consistent plane of the top part of the fence
in the rear and side yard (see Exhibit 1). The property is
zoned R-1 Low Density Residential and is surrounded by
R-1 zoning on all sides.
EXHIBITS
Applicant’s cover letter (04/02/15)
Applicant’s Standards for Variances Test and
Explanation of Attached Pictures (04/02/15)
Applicant’s aerial, topographic, fence, view,
and slope photos (04/02/15)
Staff photos of existing fence (04/13/15)
KEY QUESTIONS: The following key questions may
prove helpful to the BZA’s consideration of whether
grounds exist for granting the variance request per the
Standards for Variances criteria found in §151.309(F)(1),
based on the applicant’s cover letter (Exhibit 1) and the
other supporting exhibits.
1. Are there unusual topographical conditions? Yes.
There is a grade change of 47 inches from the level of
the pool patio to the lowest corner of the lot. The
height of the pool deck rises as the grade falls from
south to north.
2. This corner lot house was built in 1978 and contains
a pool in the rear yard. What’s changed since the construction to cause the need for a taller fence? In
2014, construction began on the Hallsworth Subdivision directly west of the property which has resulted in
the clearing of off-site trees that had previously provided screening for the rear yard from western views.
The existing fence only provides about 2 feet of screening for portions of the back yard when viewed from
the new subdivision (see photos in Exhibit 3 & 4).
3. Are there other alternatives? Yes. Tall growing evergreen shrubs and/or trees could be planted along the
property line; however, this alternative might not be practical as there is significant surface drainage in this
area and would require moist tolerant plant material and it will take several years for the plants to provide a
screen similar to what existed prior to 2014. The Zoning Ordinance limits fencing for residential areas to 6
feet, while the Design Guidelines explain commercial-scale fencing may range between 6 to 8 feet and
industrial-scale fencing may be as tall as 15 feet. The BZA has approved variances for residential areas for
fencing above 6 feet based on topographic hardships, but rarely above 8 feet. To grant a 10-foot tall solid
wood fence on this highly-visible lot could give this residential neighborhood an industrial character. A
solid 8-foot wood fence was permitted in Criss Cross Village P.D. to help screen an adjacent storage facility
(an industrial use) from the neighborhood and a fence at 779 Magnolia Garden Cove was permitted up to 9
feet but the BZA required framed lattice for fencing above 6 feet to help break up the mass of the fence. To
assist in breaking up the mass of the fence in this situation, example conditions have been provided to
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require that the applicant provide an evergreen hedge along the exterior of the fence facing the street
(Condition 5) and framed lattice is required at the top of the fence if the fence exceeds 8 feet (Condition 6).
DISCUSSION: The 0.34 acre property contains a 2,159 square foot residence built in 1978. A variance is
requested in order to compensate for the addition of the new subdivision which removed many plantings that
once helped screen the rear yard of the subject property. By extending the plane of the top part of the fence, the
applicant will compensate for the approximate change in grade of the lot. Increasing the height of the fence up
to 10 feet in that area is the minimum needed to address the situation caused by the grade change and the new
visibility resulting from the construction of the Hallsworth Subdivision. As indicated in the applicant’s
responses to the Standards for Variances Test (Exhibit 2), the variance makes possible a reasonable use of the
property by allowing the fence to be extended the minimum amount that would provide privacy for the
applicant. The existing fence currently follows the existing grade as it falls approximately 47 inches from the
pool and patio area to the northwest corner of the property allowing views directly into the backyard of the
property from the new segment of Powell Road, constructed as part of the Hallsworth Subdivision, at it
intersects with Webbview Drive. Allowing the fence to extend along the same horizontal plane (see Exhibit 3
for the applicants photos) from the rear of the home to the northwest corner of the property would provide
privacy to the pool and patio area highly visible from the new subdivision (see Exhibit 4 staff photos). In
Exhibit 3, the applicant has indicated with a blue line where the top of the fence would be with up to an 8-foot
fence (Applicants Photos 8 & 9) and where the top of the fence would be with up to a 10-foot fence (Applicants
Photos 10 & 11).
In order to grant a variance, the Board must find that there are exceptional physical conditions with the property
that make a strict application of the requirements of the Zoning Ordinance an undue hardship or practical
difficulty that would deprive the owner reasonable use of the property. The Zoning Ordinance states that a
variance may only be granted if it will not cause “substantial detriment” to the public good and it will not
substantially impair “the intent of the Zoning Ordinance.”
The Ordinance requires the Board to review a specific set of criteria, Section 151.309(F)(1), in considering each
request. The Board must find that the request meets the criteria based upon the evidence presented. If the
request does not meet the criteria, it must be denied. The criteria (“Standards for Variances”) are stated below.
Responses are in bold italics after each criterion. The applicants’ full responses are found in Exhibit 2.
1. The particular physical surroundings, shape or topographic conditions of the specific property involved
would result in a particular hardship upon the owner as distinguished from a mere inconvenience, if the
strict application of this ordinance were carried out. This lot has a change in grade of four feet between
the level of the pool and house foundation, and the level of the Northwest corner of the property and its
fence. Furthermore, this corner of the lot is where the newly-completed Powell Road (a minor collector)
dead-ends, and is fully within view of the major intersection of Powell Road & Peterson Lake Road
(another minor collector).
2. The conditions upon which the petition for a variance is based would not be applicable, generally, to other
property within the same district. The difference in elevation is not typical of the majority of the lots in
the R-1 Low Density zoning district; however, there are similar differences in elevation on other
residential lots in the Town, some of which have been granted variances.
3. The variance will not authorize activities in a zone district other than those permitted by this ordinance.
The variance will not authorize activities or uses other than those permitted by ordinance in the R-1
zoning district as fences are allowed on residential lots. The fence is not related to commercial activity.
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4. Financial returns only shall not be considered as a basis for granting a variance. There are factors other
than financial gain being considered, such as physical characteristics of the lot and the location of the
adjacent new development. There is no financial gain to be had in this situation.
5. The alleged difficulty or hardship has not been created by any person having an interest in the property after
the effective date of this ordinance. The applicant has not created the alleged hardship as the topography
of the property, as well as the existing fence to be replaced, existed when the current owners purchased
the property. The topo hardship has become more visible to the public by the development of the R-1
Hallsworth subdivision adjacent to this property, a condition over which the applicant had no control.
6. The variance is the minimum variance that will make possible the reasonable use of the land, building, or
structure. By extending the plane of the top part of the fence, the applicant will compensate for the
approximate change in grade of the lot, the Northwest corner in particular. Increasing the height of the
fence in that area up to 10 feet is the minimum needed to address the situation caused by the grade
change. The variance makes possible a reasonable use of the property by allowing the fence to be
extended the minimum amount that would provide privacy for the applicant.
7. The granting of the variance will not be detrimental to the public welfare or injurious to other property or
improvements in the area in which the property is located. If measures are taken to make what is typical
an industrial-scale fence more of a residential-scale, the requested variance will not be detrimental to the
public welfare or injurious to other property or improvements in the area and may actually enhance the
area as privacy is improved by the taller fence (see Conditions 5 & 6). According to the applicant
(Exhibit 1), owners of adjoining properties are in favor of the increased privacy that will be created by
the increased height.
8. The proposed variance will not impair an adequate supply of light and air to adjacent property, substantially
increase the congestion in the public streets, increase the danger of fire, endanger the public safety, or
substantially diminish or impair property values within the area. If measures are taken the requested
variance will have no effect on the supply of light and air to adjacent property, the congestion in public
streets, the danger of fire, or public safety, or substantially diminish or impair property values within the
area and will not block the sight distance at the intersection.
9. The variance shall not interfere with or encroach upon a recorded public or private easement unless a
written waiver has been executed by the owner of the public or private easement allowing the interference
or encroachment. The variance will not interfere with or encroach upon any known public or private
easement. The location of the fence is not changing in any way; only the height will be different.
EXAMPLE MOTION:
To approve the applicant’s request for a variance (Exhibit 1) to allow a fence to exceed the maximum height of
6 feet in the rear and side yard at 114 W. Graycrest by extending the plane of the fence from the height at the
pool and patio area allowing the height of the fence to increase to up to 10-feet area at the low point near the
northwest corner of the property, subject to the following conditions.
1. All required permits shall be obtained prior to construction of the fence.
2. Any deviation from the approved variance shall require the approval of Staff and/or the Board of Zoning
Appeals.
3. The fence shall be designed so that drainage will flow freely and not negatively impact any adjacent
property owner.
4. Design/construction details of the fence shall be provided to staff with the fence permit application to
ensure that the extension will be structurally sound.
5. An evergreen hedge shall be provided adjacent to the fence along the street frontage to help reduce the
mass of the fence. With the fence permit application, include an exhibit with the location, spacing,
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installed height, and species of the plantings. The plant selection shall be approved by staff, with shrubs
at least 24 inches tall at installation.
6. Any portion of the fence above 8 feet shall be semi-transparent by using framed lattice or a staff
approved equivalent.
CONTACT INFORMATION:
Property Owner
Contact:
Organization:
Address:
Phone:
Fax:
Email:
Benjamin Maxwell
N/A
114 W. Graycrest
Collierville, TN 38017
351-2036
N/A
[email protected]
Project Planner
R. Scott Henninger, PLA, AICP (Primary)
Jaime Groce, AICP
Nancy Boatwright, AICP
Planning Division
500 Poplar View Parkway
Collierville, TN 38017
457-2363
457-2354
[email protected]
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EXHIBIT 1
Request for Fence Variance Benjamin Maxwell 114 West Graycrest April 2, 2015 Town of Collierville Board of Zoning Appeals 500 Poplar View Parkway Collierville, TN 38017 Our back yard slopes downward towards the street, providing drainage for much of our block. This results in the base of our fence being a few feet lower than the rest of the yard (and the pool in particular), and effectively only providing the same coverage as a 2‐4’ fence if it were at grade. We previously had a good deal of privacy provided by a wooded area across the street, which blocked the view of everyone except those passing directly by our house. We spent tens of thousands of dollars on improvements to our back yard in 2013, including adding a new screened in porch, a complete remodel of the pool (complete with a new stamped concrete deck, new interior, and new hardware), and much more. We were, unfortunately, only able to enjoy these improvements for a few months. With the construction of the Hallsworth subdivision beginning in 2014, the trees and bushes that previously provided coverage have been removed. Anyone standing or sitting near our pool is now clearly visible from the intersection of Powell & Peterson Lake. Moreover, Powell now runs directly into our back yard, providing every car on this busy road with a perfect view of anyone near our pool, from the knees up. This is problematic enough for our own personal use, but we work with the youth at our church, and often host swim parties for these children and teenagers, who would now be on public display (in their swimwear) as well. The ground (and thus the fence line) drops 47” from the level of the patio to the lowest corner of the yard. This leaves us with the equivalent of a 2’ fence in the most public corner of our yard. Our preference was to use trees or bushes, rather than a fence, to block this view. Unfortunately, being near a pool, our options are very limited ‐ nothing that drops excessive leaves or flowers, nothing with sharp or spiny leaves, nothing that attracts stinging insects. Evergreens are a necessity if the yard is to be usable in the winter. Since this area serves as drainage for the block, it’s often fairly wet, which necessitates plants that love water. Most of those, unfortunately, have aggressive roots that seek out water, and cannot be planted anywhere near pools for danger of penetrating the pool wall. After a year of research, and consultation with three landscaping companies, a type of bush that may work was found and planted, but (assuming it does thrive) it will take several years to even begin to provide the screening required. I’m requesting permission to gradually increase the height of our fence as it moves along the downward slope of our back yard, so as to provide the same kind of privacy any other house would have with a standard 6’ fence. My goal is to maintain the plane of the top part of the fence, thus making the change as unobtrusive and unnoticeable as possible, and disguising the fact that the fence is any taller at all. EXHIBIT 2
Request for Fence Variance Benjamin Maxwell 114 West Graycrest Responses to Standards for Variances: 1. Do the particular physical surroundings, shape or topographic conditions of the specific property involved result in a particular hardship upon the owner as distinguished from a mere inconvenience, if the strict application of this ordinance were carried out? This lot has a change in grade of four feet between the level of the pool and house foundation and the level of the Northwest corner of the property and its fence. Furthermore, this corner of the lot is where the newly‐completed Powell Road (a minor collector) dead‐ends, and is fully within view of the busy intersection of Powell & Peterson Lake (another minor collector). 2. Are your reasons for the variance applicable, generally, to other property within the same district? The difference in elevation is not typical of the majority of the lots in the R‐1 Low Density zoning district; however, there are similar differences in elevation on other lots in the Town, some of which have been granted variances. 3. Will the variance will not authorize activities in the applicable zoning district other than those permitted by the zoning ordinance (example: retail sales in a residential zoning district allowed by a variance that allowed the owner to build a detached garage)? The variance will not authorize activities or uses other than those permitted by ordinance in the R‐1 zoning district. 4. Are financial returns only considered as a basis for granting a variance? If no, explain the other reasons why a variance is justified? There are factors other than financial gain being considered, such as physical characteristics of the lot and the location of new development. There is no financial gain to be had in this situation. 5. Has the alleged difficulty or hardship has been created by any person having an interest in the property after the effective date of the zoning ordinance? The applicant has not created the alleged hardship as the topography of the property, as well as the existing fence to be replaced, existed when the current owners purchased the property. The hardship has been significantly increased by the development of the Hallsworth subdivision adjacent to this property, a condition over which the applicant had no control. 6. Is the variance the minimum variance that will make possible the reasonable use of the land, building, or structure? By extending the plane of the top part of the fence, the applicant will compensate for the approximate change in grade of the lot, the Northwest corner in particular. Increasing the height of the fence in that area is the minimum needed to address the situation caused by the grade change. The variance makes possible a reasonable use of the property by allowing the fence to be extended the minimum amount that would provide privacy for the applicant. 7. Will the granting of the variance be detrimental to the public welfare or injurious to other property or improvements in the area in which the property is located? The requested variance will not be detrimental to the public welfare or injurious to other property or improvements in the area and may actually enhance the area as privacy is improved by the taller fence. Owners of adjoining properties have expressed interest in the increased privacy that will be created by the increased height. EXHIBIT 2
Request for Fence Variance Benjamin Maxwell 114 West Graycrest 8. Will the proposed variance impair an adequate supply of light and air to adjacent property, substantially increase the congestion in the public streets, increase the danger of fire, endanger the public safety, or substantially diminish or impair property values within the area? The requested variance will have no effect on the supply of light and air to adjacent property, the congestion in public streets, the danger of fire, or public safety. If anything, it will increase property values within the area. 9. Will the variance interfere with or encroach upon a recorded public or private easement unless a written waiver has been executed by the owner of the public or private easement allowing the interference or encroachment? The variance will not interfere with or encroach upon any known public or private easement. The location of the fence is not changing in any way; only the height will be different. Explanation of attached pictures: 1. An overheard view of the property, showing the location of the house, pool, and fence, along with the changes in elevation. The overall length of the North and West fences are indicated. The sections of fence highlighted with a blue line are the sections that, if this variance is approved, would definitely receive increased height. The sections in yellow may or may not require increased height – their replacement would be determined by the overall aesthetics of the fence, in an attempt to make the transition as gradual and unobtrusive as possible. 2. An overheard view of the property before the development of the Hallsworth subdivision, showing the coverage previously provided by the wooded area to the West. 3. A photo from inside our fence after the Hallsworth development was started. 4. A photo from Powell Road in the Hallsworth development. The ladder used in these photos is 6’ (the same height I am), and is intended as a human analog for the purpose of scale. 5. Another photo from within the Hallsworth development. The blue line on the ladder indicates a mark 2’ above the ground – approximately the same height as an adult male’s knee. 6. A photo of the slope from the level of our pool & foundation down to the West fence. Additional grade decreases exists beyond the scope of this picture. 7. A panoramic photo of the portion of the property in question. 8. A photo of the view from inside the fence. The blue line indicates the height of a fence that maintains a plane equivalent to the lowest (Northwest) corner being 8’ tall. While this only provides the equivalent coverage and privacy of a 4’ fence, it’s more helpful than what’s currently in place. 9. A photo from Hallsworth. The blue line again indicates the height of a fence that maintains a plane equivalent to a maximum height of 8’ in the Northwest corner. 10. A photo from the inside of the fence. This time, the blue line indicates the height of a fence that maintains a plane equivalent to the Northwest corner being 10’ tall. This is the height that provides the same privacy and coverage as a standard 6’ fence on level ground, and mostly blocks the major intersection at Powell & Peterson Lake. 11. A photo from Hallsworth, with the blue line again indicating the height of a fence that maintains a plane equivalent to the Northwest corner being 10’ tall. There is very little visual difference between this photo and number 9, indicating that the difference between the two heights, to the outside observer, would be minimal. Applicant Photo #1
EXHIBIT 3
Applicant Photo #3
Applicant Photo #2
EXHIBIT 3
Applicant Photo #5
Applicant Photo #4
EXHIBIT 3
Applicant Photo #7
Applicant Photo #6
EXHIBIT 3
Applicant Photo #9
Applicant Photo #8
EXHIBIT 3
Applicant Photo #11
Applicant Photo #10
EXHIBIT 3
EXHIBIT 4 – STAFF PHOTOS View looking south indicating the elevation change in the fence at the northwest corner of the lot. A close‐up view of the northwest corner of the lot. EXHIBIT 4 – STAFF PHOTOS (CONTINUED) A new 2‐story home in the Hallsworth Subdivision is directly across the street from the subject property. A view looking east toward the subject property from the new section of Powell Road.