Proposed Fence Ordinance Hits Wall at Planning Meeting

By Richard Brenneman
Friday July 28, 2006

For a time, Wednesday night’s planning meeting turned into a fencing match—with commissioners and the public aiming pointed ripostes at a proposed new fence ordinance drawn up by city staff. 

Planning Manager Mark Rhoades, a strong advocate for new rules to govern the height of fences in the city, eventually threw up his hands—but commissioners relented in part, scheduling another hearing to give the public more time to comment. 

The ordinance was drafted as a result of one of the recommendations by Mayor Tom Bates’s 2003 Advisory Task Force on Permitting and Development. 

“Berkeley’s fence ordinance is primitive,” said Rhoades, and its allowances of six-foot front fences “makes for design and public safety issues.” 

Berkeley police were also concerned about the fences, because fences offer hiding places for criminals and concealment for their crimes. “You can’t see if bad people are there or if bad things are happening,” Rhoades explained. 

“This is a particular issue of mine,” he said, because it’s hard to have a neighborhood when neighbors are walled off from each other. 

Under his proposal, front fence heights would be reduced to a maximum of three-and-a-half feet—six inches less than the task force recommended—while rear and side yard fences could be raised from the current six feet to eight feet—provided the upper two feet had at least 50 percent transparency. 

The first complaint came from Zipporah Collins, who said the city’s notice had been mailed to the person who had been the president of her neighborhood association “two presidents ago.” 

Collins said she received the notice only the day before Wednesday’s hearing, and not in time to get notice out to others in the association. 

“I can imagine there are hundreds of people in my neighborhood alone who would have something to say,” she said. 

Cynthia Fulton, a resident of Park Hills, adjacent to Tilden Park, said she lived on a downslope lot that only allowed her daughter to play in the front yard. There would be no privacy with the lower fence height—nor would it keep out the dogs who are often walked off leash, she said. 

“I’m opposed to any action tonight,” said Willard neighborhood resident Marcia Levinson, who called the ordinance “a stealth thing that came out of nowhere.” 

But Levinson wasn’t opposed to regulating fences, given a neighbor who had concealed an illegal rental unit behind a high fence and a barricade of trees. 

Tricia Buresh, another downsloper, said the fence was necessary both to keep foliage-and-garden-loving deer out “and to keep people from looking in from the street.” 

Commissioner Gene Poschman said the proposal had received less than enthusiastic endorsement from the task force: “At the last meeting, several members said ‘What the hell is this doing on here?’” 

He then reeled off a series of objections, including the proposal to require an administrative use permit to build a fence—mostly because of its $1,364.70 cost. “The cost of the fee could be a lot higher than the cost of the fence,” he said. 

“An eight-foot fence is like a wall,” said Commissioner Susan Wengraf, who has a neighbor’s fence that high within six feet of her house. Still, she said, “a blanket rule would not be a good rule.” 

Commissioner Larry Gurley said six-foot front fences could make for an unfriendly neighborhood, especially in the flats of South Berkeley where he lives. “I would not like to see them all the way down my block,” he said, “but still, there are legitimate questions raised about topography in some sections of the city.” 

“The points raised about privacy and deer are very real,” said Commissioner James Samuels. Colleague Harry Pollack agreed, while acknowledging that he too wasn’t partial to neighborhood walls. 

“If I had to make a decision tonight, my recommendation to the City Council would be to not proceed with this,” said Chair Helen Burke—who also wanted to hear from more of the public. 

At that point, Rhoades said he was ready to sever off a piece of the ordinance that allowed residents to install solar energy by right—a state legal requirement the city has to adopt—and tell the council “thanks, but no thanks” on the fence ordinance. 

But commissioners said they were ready to give it another go, and continued the hearing to Sept. 13.