Article 8. Fence Code

17.8.01.     Title.

This Article is called and may be cited as the Fence Code of the City of Bel Aire, Kansas.

17.8.2.     Definitions.

Except as otherwise provided within this Article, the definitions as adopted within the Zoning Code and the Subdivision Code shall be incorporated and made applicable to this Fence Code. The following definitions apply within this Code:

CORNER LOT: Any lot or parcel of real property that meets all of the following:

Located within any zoning district, other than agricultural, within the corporate limits of the city;

Situated on a controlled or uncontrolled intersection of two (2) streets;

Featuring a yard or similar open area, designated as the “front yard” situated between the principal structure located upon said lot or parcel in the street abutting said yard or open space from which said structure is assigned its street address; and

Featuring another yard or similar open area designated as the “abutting yard” situated between the principal structure and abutting street from which said principal structure does not receive its street address.

ENFORCEMENT OFFICER: The term “enforcement officer” shall mean the Code Enforcement Officer or any law enforcement officer of the city.

FENCE: A freestanding structure composed of metal, masonry, glass, concrete or wood, natural vegetation, or any combination thereof, resting on or partially buried in the ground and rising above ground level, and used for confinement, screening, landscaping, or partition purposes.

INTERSECTIONS:

Controlled Intersection: Any intersection of two streets, the traffic right-of-way of which is assigned by a stop sign, yield sign, or other traffic sign or signal.

Uncontrolled Intersections: Any intersection of two (2) streets, the traffic right-of-way of which is not assigned by a stop sign, yield sign, or other traffic sign or signal.

PRINCIPAL STRUCTURE: The main use of land or structures as distinguished from a subordinate or accessory use.

RESIDENTIAL LOT: Any lot or parcel of real property located within any area zoned as “residential” within the corporate limits of the city.

VISION TRIANGLE: A triangular area at the intersection of streets maintained in such a manner as to provide a safe and open line of vision for drivers of vehicles approaching the intersection. Within the vision triangle, no one shall install, construct, plant, park or maintain any sign, fence, hedge, shrubbery, tree, natural growth or other obstruction which would materially impede vision between the heights of 24 inches and eight feet above the street level. Such restrictions shall not apply to official traffic signs, signals and utility poles. (See Subdivision Regulations for regulations concerning VISION TRIANGLE.)

17.8.3.     Permit required.

No person shall erect, construct, reconstruct or replace any fence without first obtaining a permit therefor from the city, provided, that no permit shall be required for maintenance of a fence, including minor replacement of components, nor for construction of fence within the City by the City upon City owned property, easements, or reserves. In the case of a fence to be erected, constructed, reconstructed or replaced within a platted or dedicated public drainage or utility easement, such permit shall include an express disclaimer of liability for damage caused by city agents in connection with maintenance or inspection of such easement or any public improvements located thereon.

Additionally, applicable city building and construction code regulations must be met for all fences:

Greater than 6’ in height;

Constructed with concrete or masonry materials; or

Determined by the building inspector to create specific safety concerns.

17.8.4.     Maximum height of fences and construction requirements.

No fence constructed, built, maintained, repaired, or replaced upon a lot shall exceed the maximum height established and prescribed by this section.

Fences outside vision triangles, No fence located upon a residential lot and outside the boundaries of the applicable vision triangle shall exceed:

six (6) feet in height in residentially zoned districts.

eight (8) feet in height in commercial and industrially zoned districts or as permitted within a final PUD.

Fences encroaching vision triangles. No fence, any portion of which is located within the applicable vision triangle, shall exceed three (3) feet in height as measured from the highest curb located within the vision triangle to finish height of said fence. The enforcing officer shall verify that any such fence complies with all provisions of this Code. In areas without curbs, the enforcement officer may measure from the low edge of the road.

Residential properties along arterials may have fences, walls or hedges only when approved as part of the master fence/screening plan.

In commercial and industrial districts, fences and/or walls shall not be placed in the setback area from street rights-of-way or within the perimeter of any landscape area, except when the fence is permitted for use to serve as a screen for items such as trash receptacles or private parking areas.

Fences extending into the front plane of a principal structure on a residential lot shall decrease, within a linearly measured distance of no more than eight (8) feet, from a maximum height of six (6) feet to a height of four (4) feet, shall be at least fifty (50) percent open, and shall not include chain-link or any other metal or wire type fencing.

Fences extending into any abutting front yard setback may be allowed to be six (6) foot in height, to the property line, as long as there is no obstruction to any street intersection and/or vision triangle as described in this Article and the City’s Subdivision Code, as determined by the Code Enforcement Officer or City Engineer.

17.8.5.     Permitted fence materials, and prohibited features and materials.

Permitted fencing material. Fences located upon residential lots may be constructed of:

Wood fence boards such that all portions of the fence are completely solid or no more than fifty percent open, including privacy fencing and spaced picket fence;

Split rail or wood rail;

Ornamental iron, except that any decorative tops are subject to the approval of the enforcing officer, and except that no fence constructed of ornamental iron may be less than five (5) feet in height;

Woven wire or chain link;

Imitation vinyl or other similar decorative material as approved by the City, provided such materials are designed for use as fencing, and no open space in fence constructed of such materials exceeds three fourths (3/4) of an inch; or

Brick or stone walls or pillars composed of masonry materials or concrete poured or placed in such fashion as to meet fence design requirements. Stacks of masonry materials or unopened containers of concrete shall not be deemed to be in compliance with this article.

Prohibited features in materials. No fence or portion thereof shall carry any electrical charge. No fence or portion thereof located in any residential, commercial, or industrially zoned area shall contain any barbed wire or single barbs. Fences utilizing metal panels will be subject to approval on a case by case basis, but will generally only be considered for approval in relation to agricultural properties, or industrially zoned properties located upon or within drainage easements.

All fences and walls shall be constructed with a finished surface facing outward from the property (e.g. in the case of a wooden fence, a “finished surface” means a surface of the fence where the pickets or slats are fully exposed to view). The posts and support beams shall be on the inside of the finished surface.

Fence design and construction in all areas developed pursuant to the standards set forth within a PUD or overlay zoning areas will be designed and constructed as provided for within the provisions of the establishment of such PUD or overlay zone.

17.8.6.     Retaining walls.

Retaining wall construction is subject to individual approval by the City, based upon site and area requirements.

17.8.7.     Fences located within drainage or utility easements or floodways.

A fence may be located within a platted or dedicated drainage or utility easement if:

The fence is constructed and maintained at an elevation which (a) allows normal surface drainage without blockage by the fence and (b) is approved by the city engineer or his or her designee;

The fence does not divert or result in diversion of normal surface drainage flow from the normal drainage course; and

The fence has removable panels or sections to provide for access by emergency or maintenance personnel and equipment at all times.

The city shall not be liable for damage to or destruction of any fence or groundcover, including but not limited to grass, trees, and shrubs, located within a platted or dedicated drainage, street or utility easement, which are damaged or destroyed by any maintenance or inspections performed by or on behalf of the city within such easement.

Nothing in this Article shall be construed to authorize erection, construction, reconstruction or replacement of a fence in any floodway designated as such by the Federal Emergency Management Agency.

17.8.8.     Dangerous fences prohibited.

In addition to the previously described prohibitions and restrictions set forth in 17.8.07, no fence shall be constructed or maintained, or be designed, in such manner as to present a danger or hazard to any person, animal, or abutting property owner’s boundaries.

17.8.9.     Applications, site plans and permits and fees.

Applications and Permits. Any person or entity intending to construct a new fence or to replace twenty five percent (25%) or more of the total linear feet of any existing fence shall, before commencing said work, make application to the enforcing officer for a permit authorizing the work. Such applications shall be made on forms provided and approved by enforcing officer and shall be accompanied by an application fee as set out in the approved schedule of fees, and no permit shall be issued until said fees are tendered and paid in full. Fees are pursuant to the fee schedule adopted by the City.

Plans Required. All applications for fence permits shall be accompanied by a detailed site plan, to be completed by the person or entity seeking the permit, upon which shall be accurately depicted the location of the principal structure, proposed fence, all utilities serving the principal structure or located upon the residential lot, all utility easements located upon the residential lot, all setbacks affecting said lot and all rights-of-way and property lines of said lot.

License Required. Any person or entity providing the service of construction of a fence, shall hold any current valid trade, professional, business or contractor’s license as may be required by other provisions of the city code of the city or other applicable law. Individuals may construct fences upon their own property without obtaining commercial, trade or business licenses, and may use non-commercial assistance as will not receive any type of compensation, whether monetary, in-kind, or in the form of goods or services, for said work.

Review and Issuance of Permits. Reasons for Denial. The enforcing officer shall receive and review all applications required by this section and shall ensure that all proposed fences comply with the provisions of this Article and any other applicable laws. The enforcing officer shall complete said review no later than two (2) full business days following receipt of an application. The computation of said period shall not include the day the application is received. In the event the enforcing officer denies an application, the officer shall state in writing and with particularity the reason for said denial.

Call for utility locates and receive conformation before commencing to dig or disturb the earth. (see fee schedule)

17.8.10.     Complaints; inquiry and inspection.

The enforcing officer shall make inquiry and conduct inspections of property or premises upon receiving a complaint stating a violation of this Article and describing the same and its location. The enforcing officer shall, upon making inspection and inquiry, make a written report of such officer’s findings.

17.8.11.     Right of entry.

The enforcing officer has the right of access and entry upon any public or private property, at any reasonable time to make inquiry and inspection to determine if a violation of this Article exists, and to effect any other purpose of this Article. The enforcing officer may also make application to any court of competent jurisdiction for an order granting access and/or entry upon any public or private property in the event such access or entry is denied.

17.8.12.     Notice of violation.

Any person or entity found by the enforcing officer to be in violation of any provision of this Article shall be served written notice of such violation. The city clerk shall cause notice to be served in conformance with the provisions of the City’s Nuisance Code.

17.8.13.     Contents of notice.

The notice shall describe in writing the conditions constituting a violation of this Article. The notice shall also inform the person or entity receiving such notice that:

Such person or entity shall have such time, to be specified in the notice and not to exceed ten (10) days from the date specified in the notice, to remove and abate the violation from the property or premises;

Such person or entity may, within the time specified in the notice and not to exceed the date specified therein within which said removal and abatement is required, request an administrative appeal hearing before the City Manager.

Failure to make a timely request for a hearing shall constitute a waiver of the person’s right to contest the findings of the enforcing officer; and

Failure to remove and abate the violation may result in prosecution within the municipal court and/or removal and abatement of the violation by the city as provided by the nuisance abatement provisions of this City.

17.8.14.     Citation; penalty; other authorized actions.

Should the person or entity receiving the notice provided for in sections 17.8.12 and 17.8.13 of this Article fail to comply with such notice, or to request an administrative hearing, the enforcing officer may file a complaint in the municipal court of the city against such person or entity alleging a violation of this Article. Upon conviction of the violation of this Article, such person or entity shall be fined in an amount not to exceed one-hundred dollars ($100) or be imprisoned not to exceed thirty (30) days or be both fined and imprisoned. Each day during or upon which a violation occurs and each day after which such violation continues after notice has been served as provided in sections 17.8.12 and 17.8.13 shall constitute an additional or separate offense. Any action taken pursuant to this provision shall not prohibit the City to act to correct a violation of its building codes, zoning code, subdivision code, or any other code associated with the design, construction, or location of any fence. Additionally, the City may utilize any civil remedy available for enforcement of and compliance with this Fence Code.

17.8.15.     Administrative hearing.

If an administrative hearing is requested in writing and received by the City Clerk within the time period prescribed by this Code, the City Manager shall conduct an administrative hearing as soon as may be practicable and the person or entity receiving notice shall be advised by the city clerk of the time and place of the hearing at least five (5) days in advance thereof. Failure to make a timely request for a hearing shall constitute a waiver of the person’s right to contest to findings of the enforcing officer before the governing body.

On the date fixed for hearing or any adjournment or continuation thereof, the City Manager shall hear all verbal evidence submitted by the person to whom notice of the violation was issued, a statement by the enforcement officer, and all written evidence submitted by the both the individual notified of the violation and the code enforcement officer. After hearing and reviewing all evidence provided, the City Manager shall make findings of the applicable laws and applicable facts associated with this case. The hearing provided for in this section need not be conducted according to formal rules of evidence.

If, after notice and hearing as provided for in this Article, and upon hearing the evidence provided for in subsection a of this section, the City Manager determines that a violation exists, the Manager shall set forth an Order of Findings, such statement to be a written overview of those findings of facts and those applicable laws supporting such determination. The Order shall also fix a reasonable period of time, typically no more than ten (10) days, within which the abatement of the violation shall be completed, and a statement that if the person upon whom notice of the violation was served fails to complete said removal and abatement within the time period established by the Order, or fails to diligently pursue completion until the work is completed, the Code Enforcement Officer shall seek a Notice of Abatement pursuant to 17.8.16.

17.8.16.     Abatement by city; procedure.

In the event a person or entity to whom notice has been served pursuant to this fence code fails to remove or abate the conditions, or fails to comply with an Order issued following an administrative hearing, the enforcing officer may elect to remove and abate such violation. The enforcing officer shall proceed in the manner prescribed by this section, as follows:

The enforcing officer shall present a resolution to the Governing Body for its consideration and authorizing such officer to abate or cause to have abated the conditions constituting the violation at the end of ten (10) days following passage of the resolution by the Governing Body. The resolution shall further provide that the costs incurred by the city to remove and abate the violation shall be charged against the lot or parcel upon which the violation was located in accordance with State law.

In the event the Governing Body adopts and passes the resolution, the enforcing officer shall cause a copy of said resolution to be served upon the person or entity violating this Article and the owner of said lot or parcel. Service shall be effected by personal service or certified mail, return receipt requested.

In the event the whereabouts of such person(s) are unknown and the same cannot be ascertained in the exercise of reasonable diligence, an affidavit to that effect shall be made by the enforcing officer and filed with the city clerk, and the serving of the resolution shall be made by publishing the same once each week for two (2) consecutive weeks in the official city newspaper and by posting a copy of the resolution on the premises where such condition exists.

Should the person or entity upon which service is attempted refuse, or fail, to take delivery and return is made to the city indicating such refusal or failure to accept, the city clerk shall send to such person or entity, by first class mail, a copy of the notice previously sent and receipt by such person or entity shall be deemed to have occurred upon such mailing, and the enforcement officer shall post a copy of the resolution on the premises where such condition exists. The city clerk shall make and maintain records detailing the method and time of sending and receipt of such notice.

17.8.17.     Authorization to contract for services.

If the person, entity or owner fails to remove and abate the violation as provided for in this Article, and it becomes necessary for the enforcing officer to remove and abate such violation, such officer is hereby authorized to contract for and obtain such services and equipment, public or private, the officer deems necessary and appropriate to complete the tasks enumerated herein, and the enforcing officer shall adhere to and comply with all applicable laws, regulations, ordinances and city policies concerning procurement of services and equipment.

17.8.18.     Site to be made safe.

Upon removal and abatement of any violation pursuant to this Article or otherwise, the person, entity or owner shall take any and all action necessary to leave the premises in a safe condition. In the event the owner fails to take such actions as are prescribed by this section, the enforcing officer shall proceed to make the site safe and assess such costs as set forth within 17.8.19.

17.8.19.     Assessment, funding and payment of costs.

The costs incurred by the city for any action undertaken by the enforcing officer pursuant to or incidental to this Article shall be reported in detail and in writing by said officer to the city clerk. The city clerk shall keep an account of such costs, as well as any and all costs of notices, service and/or mailing of notices, and publication of notices, required by this Article. The city clerk shall immediately cause the reporting and accounting required by this section to be entered in the appropriate city record and shall report the same to the governing body.

The city clerk shall, within ten (10) days of the receipt of the enforcing officer’s report of costs, give notice by restricted mail to the owner of the costs to be reported by subsection a of this section and such notice shall include a statement requiring payment of the costs to the city within thirty (30) days following receipt of the notice. Should the owner refuse to take delivery of the notice and return is made to the city indicating such refusal, the city clerk shall send to the owner, by first class mail, the notice previously sent and receipt by the owner shall be deemed to have occurred upon such mailing. The city clerk shall make and maintain records detailing the method and time of sending and receipt of such notice.

Should the cost remain unpaid after thirty (30) days of the receipt of the notice by the owner, the city clerk may sell any salvage from the removal and abatement process and apply the proceeds of such sale to pay said costs. Any proceeds received which exceed said costs shall be remitted to the owner within thirty (30) days of conclusion of the sale.

Should the proceeds of any sale be insufficient to cover said costs, or if there exists no salvage, the city clerk shall, at the time required by law for the certification of other city taxes, certify the unpaid portion of said costs in conformance with State law for extensions of the same on the city tax rolls against the property upon which the structure was located.

17.8.20.     Disposition of moneys received.

When and if paid, all moneys received under the provisions of this Article shall be credited to the general fund of the city.

17.8.21.     Immediate hazard.

When in the Code Enforcement Officer’s opinion any fence in violation of this Article is in such condition as to constitute an immediate hazard requiring immediate action to protect the public or adjacent property, the Governing Body may direct the enforcing officer to take immediate action, without delay, to protect the safety of persons and properties including, but not limited to, 1) the erection of barricades, 2) causing the property upon which the fence is located to be vacated, or 3) causing the fence to be taken down, repaired, shored or otherwise made safe. Such action by the governing body and enforcing officer may be taken without prior notice or hearing of the owners, agents, lien holders, occupants, or other parties in interest. The costs of any action under this section shall be reported and documented, notice of costs shall be afforded, and the costs shall be assessed, in the same manner as provided within the nuisance abatement code.

17.8.22.     Notice to owner.

Notwithstanding any other provision of this Article or of law, any and all notices required by this Article shall also be served upon the owner of the premises or property upon which there exists a nuisance.