Mis-measured fence must come down to size, according to BoA

City code considers a swimming pool to be a backyard hazard that should be securely encircled by a solid fence – sometimes a fence that is higher than the 6-foot standard. However, a fence of increased height is only permitted if there is a structure within reach that would reasonably allow a child to hop a 6-foot fence.

Two weeks ago, property owners Sandra and Luke Wilson of 3004 Bonnie Road argued that an extended tree limb qualified as such a structure. After a postponement, board members at the May 13 meeting of the Board of Adjustment determined that not to be the case, and denied the Wilsons’ variance request to have a fence of up to 8 feet.

“A tree can be trimmed back,” said Board Member Michael Von Ohlen.

Chair William Burkhardt noted that while residential fences are allowed to rise to 6 feet, the code only mandates that pools are fenced off by railings approximately the height of a child. “Pool code is only 4 feet, so I don’t buy that argument at all,” he said.

The Wilsons, who moved into their West Austin home last November, said they were unaware that the solid stucco fence that encircles their yard was out of compliance until someone filed a code violation complaint with the city. When they brought the matter to their contractor, he offered to redo the fence to bring them back into compliance. That agreement was made verbally, explained Sandra Wilson, who said they did not have those assurances in writing.

Von Ohlen, who worked in construction for decades, cautioned the couple. “I wouldn’t take his word for it unless you had it in writing,” he said.

Although the board members agreed it was unfortunate that no one from the architect all the way down to the fence builders noticed that the stucco barrier was over 6 feet tall, they felt that they were unable to consider the financial responsibility for fixing the barrier as part of the hardship for a variance.

Still, “I really don’t like punishing people for something a builder did,” said Von Ohlen. “I know how contractors can act, and this isn’t something you want to get into litigation over.”

Board Member Yasmine Smith offered that the amount of time the contractor will take to remove a stucco fence and reconstruct it could potentially be considered a hardship.

Voicing her concern for the very real potential of a child climbing over the fence using the tree limb, which Sandra Wilson said she could reach at her height of “five-foot-nothing,” Board Member Veronica Rivera suggested a compromise. “I would be open to having the fence have a gradual decrease in height and keep it at the height where it needs to be where the limb is at,” she said.

Blake Tollett, who sits on the Historic Landmark Commission but came to speak on behalf of the West Austin Neighborhood Group, said the neighborhood supported a compromise that would allow the portion of the fence near the limb to remain higher while bringing the rest of the barrier down to code-mandated height requirements.

After a failed attempt to postpone the case again to allow the Wilsons to speak with their contractor about rebuilding the fence, the board denied the variance altogether with a 7-4 vote. Board members Ada Corral, Smith, Rivera and Von Ohlen voted against the motion and Board members Kelly Blume and Martha Gonzalez were absent.

Photo courtesy of the city of Austin. 

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