# 13 June 28, Staff Report. Planning and Development Department Land Use Planning Division. Recommendation Staff recommends the Commission:

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1 # 13 Planning and Development Department Land Use Planning Division To: From: Staff Report Members of the Planning Commission Jordan Harrison Assistant Planner Date: June 21, 2006 Subject: Zoning Ordinance Amendments Addressing Heights of Fences and Other Unenclosed Accessory Structures on Residential Lots and Installation of Solar Energy Equipment By-Right (BMC Section 23D , the residential use tables in 23D.xx.030, and Sub-section 23D G) Recommendation Staff recommends the Commission: 1. Consider the staff-proposed amendments to BMC Section 23D and the residential uses tables (23D , 23D , 23D , 23D , 23D , 23D , 23D , and 23D ) and Sub-section 23D G addressing allowable fence heights in required yards on residential lots and installation of solar energy equipment byright, and set a public hearing for July 26, 2006 to consider recommendations to the City Council; and 2. Direct staff to return to the Commission with clean-up revisions to BMC Sections 23D and 23D on July 26, 2006 as part of the public hearing package to provide consistency with the proposed fence standards in relation to screening of parking and to provide consistent code references. Environmental Review The project is categorically exempt under Section 15303(e) of the California Environmental Quality Act (CEQA) Guidelines. Background Recommendations from the Mayor s Task Force on Permitting and Development (MTF), adopted by the City Council on February 17, 2004, suggested the allowable fence height in residential districts should be increased for rear and side yards and decreased for front yards. The proposed amendments to BMC Section 23D arose from MTF Recommendation R1.3, which states: 2120 Milvia Street, Berkeley, CA Tel: TDD: Fax: planning@ci.berkeley.ca.us

2 Allowable fence height with a Zoning Certificate should be eight feet, except in the required front yard setback where height should be limited to four feet. Exceptions to the four-foot limitation should be granted for properties along major arterials (as defined by the Planning Commission) or with an AUP with findings to be developed by the Planning Commission. The Planning Commission should also examine design standards for fences. The main objectives of the proposed amendments are to: allow greater flexibility in fence design and height; lower the allowable fence height in front yards from six feet to 3.5 feet; and increase the allowable fence height in rear and side yards from six feet to eight feet. Land Use Planning staff consulted with staff from the Office of Transportation, the Building and Safety Division, and the Public Works Department during the amendment drafting process, resulting in amendments that go beyond the changes envisioned by the MTF to incorporate public safety, right-of-way, urban design, and pedestrian safety concerns. Discussion Currently, fences and other unenclosed accessory structures are allowed up to six feet in height in all residential yards and along all property lines, except in the ES-R where they are limited to four feet. An AUP is required to exceed these height limits, as provided for in existing Subsection 23D A(2). The proposed amendments include specific height limits for front yard areas on major and non-major streets, for side and rear yard areas, and for all yards in the ES-R District. The proposed amendments also provide for an AUP to exceed some of the fence height limits subject to specific findings. The proposed new fence height regulations are summarized below, first by yard area, then by permitting threshold. Throughout this staff report, the term fences refers to all unenclosed accessory structures governed by this code section, including retaining walls, other walls and gates. Summary of proposed fence height regulations by yard area: Non-major streets, front yard: Up to 3.5 feet in height in front yard area unless authorized by an AUP, subject to findings; Retaining walls are allowed by-right up to six feet in height in the Hillside District only, which may be exceeded with an AUP subject to findings; If over 3.5 feet tall, must be setback two feet from the sidewalk (or right-of-way), however in the Hillside District an AUP may be obtained to allow closer structures; Unlimited 12 by 12-inch ornamental features spaced five feet apart shall be allowed on top of fences; One eight foot high by six foot wide by three foot deep entry feature allowed by-right; May not exceed 3.5-foot height limit in triangular area adjacent to roadway intersection on corner lots. Major streets, front yard: Six foot maximum height by-right, which may be exceeded with an AUP subject to findings; Unlimited 12 by 12-inch ornamental features spaced five feet apart allowed on top of fences; Page 2 of 9

3 One eight foot high by six foot wide by three foot deep entry feature allowed by-right; If over 3.5 feet tall, must be setback two feet from sidewalk (or right-of-way), however in the Hillside District an AUP may be obtained to allow closer structures; May not exceed 3.5-foot height limit in triangular area adjacent to roadway intersection on corner lots. Rear and Side Yards (including street-side side yards on corner lots): Eight foot maximum fence height, the portion of a fence taller than six feet must be 50% open (i.e. lattice work); Ornamental features or entry features may not exceed the eight foot limit by-right; Rear yard fences (or ornamental features) may exceed eight feet with an AUP in all residential districts, subject to findings; Side yard fences (or ornamental features) may exceed eight feet with an AUP in the Hillside District, subject to findings. ES-R, all yards (no changes to existing regulations proposed): Four foot maximum fence height in all yard areas and along all property lines, may be exceeded with an AUP subject to findings and fire department comment and review; Ornamental and entry features over four feet are not allowed except with an AUP; May not exceed 3.5-foot height limit in triangular area adjacent to roadway intersection on corner lots. Summary of proposed fence height regulations by permitting threshold: By-right fences and other unenclosed accessory structure allowed: Up to four feet in the ES-R District in all yard areas (no change proposed); Up to 3.5 feet in the front yard and the corner triangle in all residential districts, except ES-R; Up to six feet in the front yard on major streets in all residential districts, except ES-R; Up to eight feet in side and rear yard areas in all residential districts, except ES-R; Retaining walls up to six feet in the front yard area in the Hillside District; Decorative features in the front yard area including one eight foot high by six foot wide by three-foot deep entry feature and ornamental features up to 12 by 12 inches spaced five feet apart in all residential districts, except ES-R. AUP required for a fence or other unenclosed accessory structure to: Exceed four feet in height in the ES-R District in all yards (including ornamental features; no change proposed); Exceed 3.5 feet in the front yard area on non-major streets; Exceed 6 feet in the front yard area on major streets; Exceed eight feet in side and rear yards in the Hillside District and rear yards in all Districts; For a retaining wall to exceed six feet in the front yard area in the Hillside District; Not be set back two feet from the sidewalk or front property line when over 3.5 feet in height in the front yard area in the Hillside District. Variance required for a fence or other unenclosed accessory structure to: Exceed eight feet in a side yard area in all but the Hillside District; Page 3 of 9

4 Exceed 3.5 feet in the corner triangle; Not have the portion of a side or rear yard fence taller than six feet be at least 50% open. Not be set back two feet from the sidewalk or front property line when over 3.5 feet in height in the front yard area, except in the Hillside District. Analysis Front Yard Fences on Major and Non-Major Streets and Corner Lots The main reason for requiring a lower front yard fence is to create more openness in residential front yard areas. This allows for visibility from the street into yards, and from houses to the street, which can improve public safety by having more eyes on the street and allowing law enforcement greater visibility of yard areas. It also allows for a more interesting and interactive urban design than six-foot high front yard fences would create. Planning staff proposes a 3.5-foot front yard fence, which is the average height a driver seated in a car can see over, based on the recommendation of Office of Transportation staff. Front yard fences that are no more than 3.5 feet high would improve safety, particularly in cases where people are backing out of driveways. On non-major streets front yard fences could exceed 3.5 feet in height subject to specific AUP findings. In addition, the maximum fence height in the triangular yard area on all corner lots would also be 3.5 feet to provide for better visibility at intersections. This would apply to corner lots on major and non-major streets, and could not be exceeded with an AUP. As recommended by the MTF, the proposed amendments allow a taller front yard fence on major streets in order to provide privacy and sound attenuation. Fences on major streets would be allowed up to six feet by-right and taller with an AUP. The MTF also recommended that the Planning Commission examine design standards for fences. Staff believes that this recommendation was intended to address ways that increased heights for design features could be accommodated without requiring an AUP. Staff proposes that certain ornamental features be allowed to exceed the maximum front yard fence heights by-right (both the 3.5-foot limit on non-major roads and the six-foot limit on major roads). These include one entry feature, such as a pergola, that may be eight feet high, six feet wide, and three feet deep, as well as unlimited ornamental features spaced five feet apart sized up to 12-inches by 12-inches. This allows property owners to add decorative features to their fences that exceed the height limits without an expensive and lengthy permitting process. Retaining walls are allowed up to six feet in height by right in front yard areas in the Hillside District because limiting retaining walls to 3.5 feet in height (as proposed for front yard fences and retaining walls in all other Districts) would result in the need for terraced yards or more engineered structures. Terraced walls for steep front yards could require excessive excavation with secondary impacts or could destabilize areas of the yard close to a building. Additionally, such earthwork is often very costly and would result in an unfair burden on properties with sloped front yard areas. The six-foot height limit in the Hillside District could be exceeded with an AUP subject to findings. Currently retaining walls are allowed up to six feet in height in all districts and can exceed six feet with an AUP. Front yard fences that are taller than the proposed height limit of 3.5 feet (four feet in the ES-R) would be required to be set back from the sidewalk by two feet (or more if the property line is Page 4 of 9

5 further than two feet from the sidewalk). The purpose of this requirement is to provide for a landscaped area in front of taller fences. This requirement would apply to front yard fences on major streets and retaining walls in the Hillside District that are allowed up to six feet by-right and fences on non-major street that are over 3.5 feet in height with an AUP. This requirement may be relaxed in the Hillside District with an AUP in order to allow for a retaining wall or other structure to be located at or close to the property line in order to minimize earthwork or optimize usable outdoor space. Existing front yard fences that are over 3.5 feet in height, but not over six feet, would be considered legally non-conforming. Section 23C Continuance of Non-conforming Buildings and Structures, allows lawful non-conforming structures to be maintained and repaired so long as such maintenance does not result in either a change in the use or a demolition of the structure. Likewise, existing fences that are authorized to be over six feet in height by an AUP can be maintained at their permitted height. Existing fences that are over six feet in height but do not have an AUP would not be considered legally non-conforming. However, property owners could still apply for an AUP to potentially legalize such fences subject to the new findings. Rear and Side Yard Fences Allowing taller rear and side yard fences by-right provides greater privacy for ground floor residential spaces and residential yards without an expensive and lengthy permitting process. The proposed amendments would allow rear and side yard fences to be two feet taller than the current regulations, but would require those two feet to be 50 percent open through the use of latticework or other decorative features. This allows more privacy by-right while still creating interesting fence design, openness, and allowing passage of light. ES-R District No change is proposed to the regulation of fences within the ES-R District. Both the current and proposed ordinances limit the height of all fences on property lines or within yards to four feet. The only change with the proposed ordinance is to add the requirement of Fire Department review and comment to Section 23D (this requirement is currently in the ES-R use table, Section 23D ) and subject the AUP to the proposed findings. Findings to Exceed Height Limits The proposed findings for issuance of an AUP require fences that are taller than the maximum standards established by the section to be compatible with the neighborhood and site and be of high aesthetic and material quality. Such fences shall also be required to not dominate the site, overwhelm adjacent properties, or result in a safety hazard or unreasonable obstruction of sunlight. Project Planners will consider the individual site conditions and use these findings as well as the general non-detriment finding of Section 23B to review AUP applications for fences to exceed the proposed fence height limits. Changes to the Residential District Use Tables Currently the use tables in the Residential District chapters indicate that fences under six feet in height are allowed with a Zoning Certificate and those over six feet in height require an AUP. Staff proposes amending the use tables to refer directly to Section 23D , as shown with the R-1 table of permitted uses excerpt below. This amendment would be conducted in all of the Residential District use tables (Sections 23D , 23D , 23D , 23D , 23D , 23D , and 23D ) except the ES-R (23D ). Page 5 of 9

6 Table 23D Uses Permitted Use and Required Permits Use Classification Special Requirements (if any) Accessory Uses and Structures Fences If six ft. or less in height Exceed six ft. in height ZC ZC AUP Must satisfy the requirements of Section 23D In required setbacks The use table in 23D , the ES-R District, will continue to include the existing text Subject to Fire Department review and comment in addition to the reference to Section 23D so that residents of this district are aware of this special requirement, and the fence height standards will continue to be up to four feet with a ZC and over four feet with an AUP. Table 23D Uses Permitted Use and Required Permits Use Classification Special Requirements (if any) Accessory Uses and Structures Fences Four ft. or less in height ZC Exceeding four ft. in height AUP Subject to Fire Department review and comment. Must satisfy the requirements of Section 23D Residential Lots in Commercial Districts Currently the use tables for each commercial district refer uses permitted in residential districts to the use tables in the R-3, R-4 or R-5 residential district chapters (the specific residential district differs among the commercial districts). Exclusively residential uses in commercial districts therefore have the same fence regulations as residential uses in residential districts. The proposed fence regulations would continue to apply to exclusively residential uses within commercial districts. Text proposed to be added to 23D A(1) would make this policy clear. The Manufacturing, Mixed Manufacturing, and Mixed-Use Light Industrial Districts prohibit residential uses and the Mixed Use-Residential (MU-R) District contains specific regulations for fence heights tailored to the mixed-use environment. Figures Illustrating Measurement of Fence Height and the Corner Triangle To improve the clarity of the proposed regulations staff has prepared two figures illustrating how fence height is to be measured and what is meant by the corner triangle area. These figures are included in the proposed Section 23D (Attachment 2). Other Changes and Clarifications Page 6 of 9

7 In addition to the policy changes discussed above, the proposed amendments include clarifications to the existing zoning text. In order to clearly identify the type of accessory structures that are the subject of this section, the existing text other unenclosed accessory structures from existing 23D A(2) was added to proposed 23D A(1). The text prohibiting the location of a fence within the public right-of-way was added to 23D A(1) in order to make this requirement clear. Structures are currently not allowed within the public right-of-way, however with minor structures like fences, property owner sometimes do not take the time to locate the property line. Public Works and Building and Safety staff requested that this text be added to the Zoning Ordinance in order to inform property owners of the need to locate the property line when building a fence or other unenclosed accessory structure. While the current zoning text applies the six-foot fence height limit to all yards, the proposed amendments introduce the possibility of different fence height standards on a shared property line or within the overlapping yard areas on a lot. The proposed amendments include text to clarify which fence standard will apply in these situations. Two fence standards on a shared property line would occur with a key lot or when adjacent interior lots have different lot depths. The front and side yards of the key lot would abut the rear yard of the corner lot. In those situations (e.g. when a rear yard is abutting an interior side yard), the allowed rear yard fence height limit for the corner lot would extend along the shared property line, resulting in a taller side yard fence height for the interior lot. Based on the definition of yard, side yards overlap front and rear yards because they extend from front lot line to rear lot line and front and rear yards extend from side lot line to side lot line. With the proposed amendments, there would be more than one fence standard for the overlapping area, the front or rear yard height limits and the side yard height limit. The proposed amendments would require the lower fence height in these cases. This results in the 3.5-foot height limit extending from side lot line to side lot line in the front yard setback area. The eightfoot side yard height limit would not be allowed along the side lot line in the front yard area. In the rear yard area, the side yard height limit would apply in the overlapping portion of the yard, meaning the fence height could not exceed eight feet with an AUP in the overlapping yard area (as would be permitted in the remainder of the rear yard area and along the rear property line), except in the Hillside District. Solar Energy Equipment The proposed amendments eliminate the requirement of an AUP to place solar energy equipment on the ground within a required yard setback from existing 23D B (proposed 23D C). A new state law requires applications for the installation of solar energy equipment to be ministerial. This requirement is addressed in Government Code Section , Attachment 4. In addition, staff proposes to delete Sub-section 23D G, which also requires an AUP to locate solar energy equipment in required yards. Staff recommends deletion of all of 23D G because both the requirement to obtain an AUP and to conform to RECO are inconsistent with the State law and G(2) is an unnecessary and redundant description of solar energy equipment. The proposed amendment to Sub-section 23D G is as follows: Page 7 of 9

8 23D Yards and Building Separations for Main Buildings G. The Zoning Officer may issue an AUP for solar energy equipment to encroach into required yards if he/she finds that: 1. The modification of Ordinance requirements is necessary for installation of the solar energy equipment; 2. The proposed structures and equipment are installed with the primary purpose to collect, store, and utilize solar energy; and 3. The subject building conforms to the standards set forth in the Residential Energy Conservation Ordinance (RECO). Future Amendments to Address Consistency With Other Sections of the Zoning Ordinance The proposed fence height limits would be inconsistent with the screening standards for parking in required residential yards in Sub-section 23D E, which requires a view-obscuring fence, wall, or hedge of not less than four feet, and not more than six feet in height to screen parked cars. The section is inconsistent because the proposed ordinance amendments allow a fence of up to eight feet in height by-right in side and rear yards and along side and rear property lines, and limits front yard fence heights to 3.5 feet. Staff proposes to revise Sub-section 23D E to be consistent with the proposed new fence height limits by requiring any fence required for screening of parked cars to be at least 3.5 feet in height and setting no maximum height, subject to the standards of 23D Other amendments to Section 23D regarding parking in required yards were recently on the City Council s agenda; a decision was made June 20, Staff proposes to bring this additional amendment to Sub-section 23D E related to fence heights to the July 26, 2006 Planning Commission Public Hearing (or whichever date the Commission chooses to set the hearing) as part of the overall package of amendments. Staff did not have time to prepare proposed amendment text in time for the packet deadline. The public hearing notice will be sufficiently broad to encompass all of the possible amendments under consideration, including those to Sub-section 23D E related to fence heights for screening of parked cars. At that time staff will also bring a clean up amendment to Sub-section 23D F, which refers to an out-of-date section of 23D These amendments were postponed pending the outcome of the Council s action, which could have affected the organization of 23D Attachments: 1. Current Text of Section 23D (a) Proposed amendments to Section 23D with figures in strike-out format; and (b) Proposed amendments to Section 23D with figures in clean text format. 3. Proposed amendments to residential use tables (Sections 23D , 23D , 23D , 23D , 23D , 23D , 23D , and 23D ). Page 8 of 9

9 4. Map of major streets from the Berkeley General Plan. 5. Proposed amendments to Section 23D Government Code Section , Local Agency Barriers To Solar Energy Systems Prohibited. 7. Existing Figures from the Zoning Ordinance illustrating a key lot and overlapping yards. 8. Existing Sections 23D and 23D Page 9 of 9

10 Attachment 1 Section 23D Fences and Other Accessory Structures A. Any fence, hedge, gate, pergola, trellis, arbor or retaining wall is subject to the following restrictions when located on a lot in, or on the zoning boundary line of, any residential District. 1. No fence, or portion of a fence, shall contain strands of barbed or razor wire, nor shall sharp or jagged glass, metal such as, but not limited to razor-spikes, or similar materials be attached to a fence when located on a lot in, or on the zoning boundary line of, any residential District. a. No features of this type in an existing fence shall be expanded or repaired. b. All existing non-conforming fence features of this type, with an adjusted market value of $1500 or less, shall be removed within one year from the effective date of this section or within one year from the date such feature became non-conforming, whichever date is earlier. c. All existing non-conforming fence features of this type, with an adjusted market value of more than $1500, shall be removed within two years from the effective date of this section or within two years from the date such use became non-conforming, whichever date is earlier. d. For purposes of this ordinance, the adjusted market value of the existing nonconforming fence feature shall be calculated as follows: i. The "original cost" of the fence feature shall be calculated by reference to the likely cost of substantially similar fence features at the time the fence feature was initially installed plus the likely costs of installation at that time. ii. The "original cost" shall be reduced by 10% for each year since the fence feature was installed, until the year that this ordinance becomes effective. This reduced cost shall be considered the "adjusted market value." e. Where the property owner demonstrates that the period of time established in subsections b and c would be unreasonable as applied to a particular fence feature, the City may extend the period within which removal of such feature would be required, after weighing the harm to the public interest from continued maintenance of the fence and other relevant factors. Any such determination may be made in the course of the proceedings to abate pursuant to Berkeley Municipal Code Chapter No fence or other unenclosed accessory structure located on a property line or within the required yard area for a main building set forth in each residential District's provisions may exceed six feet in height at any point (or, in the case of the ES-R District four feet), unless so authorized by an AUP. The height of any such fence or structure shall be determined by measuring the vertical distance from the lowest existing grade point within Page 1 of 2

11 Attachment 1 a three foot radius of any point of such fence or structure, to the highest point of such structure. B. No unenclosed accessory structure may be placed on the ground within a required setback, including but not limited to, solar energy equipment, ground or pole-mounted satellite dishes, play structures, skateboard ramps, tree houses and windmills, unless so authorized by an AUP. C. In the case of an unenclosed hot tub, jacuzzi or spa, whether located within or beyond a required setback, an AUP shall be required, and any pump shall be mounted and enclosed so that its sound is not audible over a property line of an adjacent lot. Page 2 of 2

12 Attachment 2a Section 23D Fences and Other Accessory Structures A. Any fence or other unenclosed accessory structure such as a, wall, hedge, gate, pergola, trellis, arbor or retaining wall is subject to the following restrictions when located on a lot in, or on the zoning boundary line of, any residential District or on a lot with an exclusively residential use in a Commercial District. The fence owner shall be responsible for properly locating relevant property lines before construction of any fence and in no case shall a fence or other unenclosed accessory structure be located in the public right-of-way. 1. No fence, or portion of a fence, shall contain strands of barbed or razor wire, nor shall sharp or jagged glass, metal such as, but not limited to razor-spikes, or similar materials be attached to a fence when located on a lot in, or on the zoning boundary line of, any residential District. a. No features of this type in an existing fence shall be expanded or repaired. b. All existing non-conforming fence features of this type, with an adjusted market value of $1500 or less, shall be removed within one year from the effective date of this section or within one year from the date such feature became non-conforming, whichever date is earlier. c. All existing non-conforming fence features of this type, with an adjusted market value of more than $1500, shall be removed within two years from the effective date of this section or within two years from the date such use became non-conforming, whichever date is earlier. d. For purposes of this ordinance, the adjusted market value of the existing non-conforming fence feature shall be calculated as follows: i. The "original cost" of the fence feature shall be calculated by reference to the likely cost of substantially similar fence features at the time the fence feature was initially installed plus the likely costs of installation at that time. ii. The "original cost" shall be reduced by 10% for each year since the fence feature was installed, until the year that this ordinance becomes effective. This reduced cost shall be considered the "adjusted market value." e. Where the property owner demonstrates that the period of time established in subsections b and c would be unreasonable as applied to a particular fence feature, the City may extend the period within which removal of such feature would be required, after weighing the harm to the public interest from continued maintenance of the fence and other relevant factors. Any such determination may be made in the course of the proceedings to abate pursuant to Berkeley Municipal Code Chapter Height limits forno fences orand other unenclosed accessory structures located on a property line or within the required yard area for a main building set forth in each residential District's provisions shall be as set forth below. may exceed six feet in height at any point (or, in the case of the ES-R District four feet), unless so authorized by an AUP. The height of any such fence or structure shall be determined by measuring the vertical distance from the lowest existing grade point within a three foot radius of any point of such fence or structure, to the highest point of such structure (see Figure 1 of this section). Where two different fence heights are allowed in overlapping yard areas on the same lot, the lesser height shall be allowed. Where two different heights are allowed along a shared property line, the greater height shall be allowed, with the exception of a property line that forms a boundary with the ES-R District. In the case of the ES-R Page 1 of 4

13 Attachment 2a District and notwithstanding other height standards in this section, no fence or other unenclosed accessory structure shall exceed four feet in height at any point on a property line or within the required yard area unless so authorized by an AUP, subject to Fire Department review and comment. a. On a front property line or in a front yard area, no fence or other unenclosed accessory structure shall exceed 3.5 feet in height at any point unless authorized by an AUP, except that: i. in the Hillside District, no retaining wall shall exceed 6 feet in height at any point unless authorized by an AUP; ii. in any District, when the front yard area abuts a Major Street, as designated in the Transportation Element of the Berkeley General Plan, or any street officially classified by the City as a major thoroughfare no fence or other unenclosed accessory structure shall exceed 6 feet in height at any point unless authorized by an AUP; iii. in any District, one pergola, arbor, trellis or other entry feature may be permitted byright provided it does not exceed 8 feet in height, 6 feet in width, and 3 feet in depth; iv. in any District, ornamental attachments atop a fence or other unenclosed accessory structure are permitted by-right so long as such features do not exceed 12 inches above the maximum fence height and 12 inches in width and are spaced at least 5 feet apart. b. On a front property line or in a front yard area, any fence or other unenclosed accessory structure over 3.5 feet in height (or four feet in the ES-R District) shall be set back from the sidewalk along the front property line by 2 feet. In cases where there is no sidewalk, such structures shall be set back from the public right-of-way by 2 feet. The area between the sidewalk (or public right-of-way) and the fence shall be landscaped when feasible. In the Hillside District, a fence or other unenclosed accessory structure may be allowed within 2 feet of the sidewalk or public right-of-way if authorized by an AUP. c. On a side or rear property line or within a side or rear yard area, no fence or other unenclosed accessory structure shall exceed 8 feet in height at any point and the portion of the fence that exceeds 6 feet in height must be at least 50 percent open (such as latticework), except that: i. in any District, on a rear property line or in a rear yard area, a fence or other unenclosed accessory structure may exceed 8 feet in height if authorized by an AUP; ii. in the Hillside District, on a side property line or in a side yard area, a fence or other unenclosed accessory structure may exceed 8 feet in height if authorized by an AUP. Page 2 of 4

14 Attachment 2a Figure 1 Measuring Unenclosed Accessory Structure Height (23D ) B. The Zoning Officer may issue an Administrative Use Permit to exceed the foregoing height limits for fences and other unenclosed accessory structures if he or she makes the following findings: 1. The appearance of the fence or other unenclosed accessory structure will be compatible with the design and character of other similar structures in the neighborhood and the main structure on the subject property; 2. The fence design is of high aesthetic and material quality and includes enhanced design features and articulation such as openings, a variety of materials, or decorative elements; 3. The fence or structure will not dominate the site or overwhelm adjacent properties and structures and will not substantially impair the utility or value of adjacent properties or the general welfare of the neighborhood; 4. The fence or structure will not create a safety hazard to pedestrians or vehicular traffic; and 5. The fence or structure will not result in unreasonable obstruction of sunlight. C. Except as otherwise provided for in this Title, Nno unenclosed accessory structure may be placed on the ground within a required setback, including but not limited to, solar energy equipment, ground or pole-mounted satellite dishes, play structures, skateboard ramps, tree houses and windmills, unless so authorized by an AUP. DC. In the case of an unenclosed hot tub, jacuzzi or spa, whether located within or beyond a required setback, an AUP shall be required, and any pump shall be mounted and enclosed so that its sound is not audible over a property line of an adjacent lot. E. Notwithstanding anything to the contrary herein, on a lot situated at the intersection of two or more streets, nothing shall be erected, placed, planted, or allowed to grow in such a manner as to compromise the safety of motorists and pedestrians by obstructing visibility at the street intersection. Page 3 of 4

15 Attachment 2a Within the triangular area bounded by the property lines abutting on such streets and a line connecting the property lines 20 feet from their intersection, no fence or other unenclosed accessory structure shall exceed 3.5 feet in height (see Figure 2 of this section). Figure 2 Corner Lot Triangular Area (23D ) Page 4 of 4

16 Attachment 2b Section 23D Fences and Other Accessory Structures A. Any fence or other unenclosed accessory structure such as a wall, hedge, gate, pergola, trellis, arbor or retaining wall is subject to the following restrictions when located on a lot in, or on the zoning boundary line of, any residential District or on a lot with an exclusively residential use in a Commercial District. The fence owner shall be responsible for properly locating relevant property lines before construction of any fence and in no case shall a fence or other unenclosed accessory structure be located in the public right-of-way. 1. No fence, or portion of a fence, shall contain strands of barbed or razor wire, nor shall sharp or jagged glass, metal such as, but not limited to razor-spikes, or similar materials be attached to a fence when located on a lot in, or on the zoning boundary line of, any residential District. a. No features of this type in an existing fence shall be expanded or repaired. b. All existing non-conforming fence features of this type, with an adjusted market value of $1500 or less, shall be removed within one year from the effective date of this section or within one year from the date such feature became non-conforming, whichever date is earlier. c. All existing non-conforming fence features of this type, with an adjusted market value of more than $1500, shall be removed within two years from the effective date of this section or within two years from the date such use became non-conforming, whichever date is earlier. d. For purposes of this ordinance, the adjusted market value of the existing non-conforming fence feature shall be calculated as follows: i. The "original cost" of the fence feature shall be calculated by reference to the likely cost of substantially similar fence features at the time the fence feature was initially installed plus the likely costs of installation at that time. ii. The "original cost" shall be reduced by 10% for each year since the fence feature was installed, until the year that this ordinance becomes effective. This reduced cost shall be considered the "adjusted market value." e. Where the property owner demonstrates that the period of time established in subsections b and c would be unreasonable as applied to a particular fence feature, the City may extend the period within which removal of such feature would be required, after weighing the harm to the public interest from continued maintenance of the fence and other relevant factors. Any such determination may be made in the course of the proceedings to abate pursuant to Berkeley Municipal Code Chapter Height limits for fences and other unenclosed accessory structures located on a property line or within the required yard area for a main building set forth in each residential District's provisions shall be as set forth below. The height of any such fence or structure shall be determined by measuring the vertical distance from the lowest existing grade point within a three foot radius of any point of such fence or structure, to the highest point of such structure (see Figure 1 of this section). Where two different fence heights are allowed in overlapping yard areas on the same lot, the lesser height shall be allowed. Where two different heights are allowed along a shared property line, the greater height shall be allowed, with the exception of a property line that forms a boundary with the ES-R District. In the case of the ES-R District and notwithstanding other height standards in this section, no fence or other unenclosed accessory structure shall exceed Page 1 of 4

17 Attachment 2b four feet in height at any point on a property line or within the required yard area unless so authorized by an AUP, subject to Fire Department review and comment. a. On a front property line or in a front yard area, no fence or other unenclosed accessory structure shall exceed 3.5 feet in height at any point unless authorized by an AUP, except that: i. in the Hillside District, no retaining wall shall exceed 6 feet in height at any point unless authorized by an AUP; ii. in any District, when the front yard area abuts a Major Street, as designated in the Transportation Element of the Berkeley General Plan, or any street officially classified by the City as a major thoroughfare no fence or other unenclosed accessory structure shall exceed 6 feet in height at any point unless authorized by an AUP; iii. in any District, one pergola, arbor, trellis or other entry feature may be permitted byright provided it does not exceed 8 feet in height, 6 feet in width, and 3 feet in depth; iv. in any District, ornamental attachments atop a fence or other unenclosed accessory structure are permitted by-right so long as such features do not exceed 12 inches above the maximum fence height and 12 inches in width and are spaced at least 5 feet apart. b. On a front property line or in a front yard area, any fence or other unenclosed accessory structure over 3.5 feet in height (or four feet in the ES-R District) shall be set back from the sidewalk along the front property line by 2 feet. In cases where there is no sidewalk, such structures shall be set back from the public right-of-way by 2 feet. The area between the sidewalk (or public right-of-way) and the fence shall be landscaped when feasible. In the Hillside District, a fence or other unenclosed accessory structure may be allowed within 2 feet of the sidewalk or public right-of-way if authorized by an AUP. c. On a side or rear property line or within a side or rear yard area, no fence or other unenclosed accessory structure shall exceed 8 feet in height at any point and the portion of the fence that exceeds 6 feet in height must be at least 50 percent open (such as latticework), except that: i. in any District, on a rear property line or in a rear yard area, a fence or other unenclosed accessory structure may exceed 8 feet in height if authorized by an AUP; ii. in the Hillside District, on a side property line or in a side yard area, a fence or other unenclosed accessory structure may exceed 8 feet in height if authorized by an AUP. Page 2 of 4

18 Attachment 2b Figure 1 Measuring Unenclosed Accessory Structure Height (23D ) B. The Zoning Officer may issue an Administrative Use Permit to exceed the foregoing height limits for fences and other unenclosed accessory structures if he or she makes the following findings: 1. The appearance of the fence or other unenclosed accessory structure will be compatible with the design and character of other similar structures in the neighborhood and the main structure on the subject property; 2. The fence design is of high aesthetic and material quality and includes enhanced design features and articulation such as openings, a variety of materials, or decorative elements; 3. The fence or structure will not dominate the site or overwhelm adjacent properties and structures and will not substantially impair the utility or value of adjacent properties or the general welfare of the neighborhood; 4. The fence or structure will not create a safety hazard to pedestrians or vehicular traffic; and 5. The fence or structure will not result in unreasonable obstruction of sunlight. C. Except as otherwise provided for in this Title, no unenclosed accessory structure may be placed on the ground within a required setback, including but not limited to, ground or pole-mounted satellite dishes, play structures, skateboard ramps, tree houses and windmills, unless authorized by an AUP. D. In the case of an unenclosed hot tub, jacuzzi or spa, whether located within or beyond a required setback, an AUP shall be required, and any pump shall be mounted and enclosed so that its sound is not audible over a property line of an adjacent lot. E. Notwithstanding anything to the contrary herein, on a lot situated at the intersection of two or more streets, nothing shall be erected, placed, planted, or allowed to grow in such a manner as to compromise the safety of motorists and pedestrians by obstructing visibility at the street intersection. Within the triangular area bounded by the property lines abutting on such streets and a line Page 3 of 4

19 Attachment 2b connecting the property lines 20 feet from their intersection, no fence or other unenclosed accessory structure shall exceed 3.5 feet in height (see Figure 2 of this section). Figure 2 Corner Lot Triangular Area (23D ) Page 4 of 4

20 Attachment 3 Table 23D.xx.030 Use and Required Permits The following amendment would be conducted in the residential use tables of the following Sections: 23D , 23D , 23D , 23D , 23D , 23D , and 23D Table 23D Uses Permitted Use and Required Permits Use Classification Special Requirements (if any) Accessory Uses and Structures Fences If six ft. or less in height Exceed six ft. in height ZC ZC AUP Must satisfy the requirements of Section 23D In required setbacks The following amendment would be conducted in the residential use table for the ES-R District, Section 23D : Table 23D Uses Permitted Use and Required Permits Use Classification Special Requirements (if any) Accessory Uses and Structures Fences Four ft. or less in height ZC Exceeding four ft. in height AUP Subject to Fire Department review and comment. Must satisfy the requirements of Section 23D

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22 Attachment 5 23D Yards and Building Separations for Main Buildings G. The Zoning Officer may issue an AUP for solar energy equipment to encroach into required yards if he/she finds that: 1. The modification of Ordinance requirements is necessary for installation of the solar energy equipment; 2. The proposed structures and equipment are installed with the primary purpose to collect, store, and utilize solar energy; and 3. The subject building conforms to the standards set forth in the Residential Energy Conservation Ordinance (RECO).

23 Fence Heights in Required Residential Yards Item # 13 Attachment 6 Local Agency Barriers To Solar Energy Systems Prohibited (copied from (a) The implementation of consistent statewide standards to achieve the timely and cost-effective installation of solar energy systems is not a municipal affair, as that term is used in Section 5 of Article XI of the California Constitution, but is instead a matter of statewide concern. It is the intent of the Legislature that local agencies not adopt ordinances that create unreasonable barriers to the installation of solar energy systems, including, but not limited to, design review for aesthetic purposes, and not unreasonably restrict the ability of homeowners and agricultural and business concerns to install solar energy systems. It is the policy of the state to promote and encourage the use of solar energy systems and to limit obstacles to their use. It is the intent of the Legislature that local agencies comply not only with the language of this section, but also the legislative intent to encourage the installation of solar energy systems by removing obstacles to, and minimizing costs of, permitting for such systems. (b) A city or county shall administratively approve applications to install solar energy systems through the issuance of a building permit or similar nondiscretionary permit. Review of the application to install a solar energy system shall be limited to the building official's review of whether it meets all health and safety requirements of local, state, and federal law. The requirements of local law shall be limited to those standards and regulations necessary to ensure that the solar energy system will not have a specific, adverse impact upon the public health or safety. However, if the building official of the city or county has a good faith belief that the solar energy system could have a specific, adverse impact upon the public health and safety, the city or county may require the applicant to apply for a use permit. (c) A city or county may not deny an application for a use permit to install a solar energy system unless it makes written findings based upon substantial evidence in the record that the proposed installation would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily

24 mitigate or avoid the specific, adverse impact. The findings shall include the basis for the rejection of potential feasible alternatives of preventing the adverse impact. (d) The decision of the building official pursuant to subdivisions (b) and (c) may be appealed to the planning commission of the city or county. (e) Any conditions imposed on an application to install a solar energy system shall be designed to mitigate the specific, adverse impact upon the public health and safety at the lowest cost possible. (f) (1) A solar energy system shall meet applicable health and safety standards and requirements imposed by state and local permitting authorities. (2) A solar energy system for heating water shall be certified by the Solar Rating Certification Corporation (SRCC) or other nationally recognized certification agency. SRCC is a nonprofit third party supported by the United States Department of Energy. The certification shall be for the entire solar energy system and installation. (3) A solar energy system for producing electricity shall meet all applicable safety and performance standards established by the National Electrical Code, the Institute of Electrical and Electronics Engineers, and accredited testing laboratories such as Underwriters Laboratories and, where applicable, rules of the Public Utilities Commission regarding safety and reliability. (g) The following definitions apply to this section: (1) "A feasible method to satisfactorily mitigate or avoid the specific, adverse impact" includes, but is not limited to, any cost-effective method, condition, or mitigation imposed by a city or county on another similarly situated application in a prior successful application for a permit. A city or county shall use its best efforts to ensure that the selected method, condition, or mitigation meets the conditions of subparagraphs (A) and (B) of paragraph (1) of subdivision (d) of Section 714 of the Civil Code. (2) "Solar energy system" has the same meaning set forth in paragraphs (1) and (2) of subdivision (a) of Section of the Civil Code. (3) A "specific, adverse impact" means a significant, Page 2 of 3