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Date of Issue: July 14, 2005

How high is too high? Check back in October for answer

Only in Anna Maria can a board meet for 2 1/2 hours to debate how to measure a fence, deadlock on the vote and wind up delaying making a decision for three months.

Code Enforcement Officer Gerry Rathvon presented four members of the city’s code enforcement board Monday night with a charge of violation of fence height rules at a house owned by Dorothy and Mark English at 776 N. Shore Drive.

The vinyl fence at the rear of the house was installed by Arrow Fence Systems of Bradenton earlier this year to surround a pool and patio, all built upon a retaining wall.

City codes call for rear-yard fences to be no more than 6 feet in height. Rathvon received a complaint that the fence was too high, measured the fence from the ground level to the top rail including the retaining structure, and found the fence was more than 7 feet high.

She cited the city code on fences that states, "Fences located within the side and rear setbacks shall not exceed a height of six feet above the existing ground grade." The "ground grade" Rathvon used was the alley that the English’s property abuts.

Hold it, said Chris van Hise, an attorney representing the Englishes. The city said the measurement is made from property that the property owners does not have any control over and, in fact, the city graded the alley earlier this year and dropped the level significantly. He maintained that the finished grade of the property should be the starting point for measurement and that the actual vinyl fence, at 6 feet, is legal - not in violation of city codes.

Van Hise added that the majority of the fences abutting the alley are more than 6 feet in height if measured from the alley and suggested that selective enforcement was being targeted toward his clients.

 "What side of the fence do you take the measurement on?" Code Enforcement Board Chairman William Iseman asked rhetorically.

Attorney Jim Dye, representing city staff on the matter, said that Rathvon followed the city requirements in both her research and conclusions. "The retaining wall was built above existing grade, she measured from existing grade - the alley - and the fence is more than 7 feet high," Dye said.

"I can’t see how you can do anything but find this fence in violation," he added.

Building Official Kevin Donohue added that in his view, the retaining wall is included within the definition of "fence" and should be considered with the vinyl fence in determining height.

Board members, though, were split on the matter, with Iseman and Gordon Atkinson agreeing that there was a violation and the fence was too high. Board members Jeff Murray and Carl Pearman argued not.

It was at that juncture that the matter became unique, with all attorneys and officials present puzzled as to how to proceed in a quasi-judicial, administrative matter where a charge of a code violation has been made and the board charged to resolve the matter is deadlocked by a split vote.

After much debate, it was decided by all parties that continuing the meeting to a later date when a full five-member board could be present would require starting all over again to allow that fifth member, Shirley O’Day, the opportunity to participate in the entire process. That appeared unacceptable to all after the 2-plus hour hearing to date.

Builder Jeff Murray suggested dirt could be added to the alleyway, similar to another situation bordering a beach accessway at 801 N. Shore Drive, as was pointed out by Mark English.

The resolution to the problem eventually was to allow the four members present to review the proceedings, deliberate on the matter and again address the English fence-height issue Oct. 10.

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