Planning staff requests the Board of Adjustment affirm the determination of the Zoning Coordinator that metal panels are not materials commonly used for fencing within residential zone districts in Billings. Planning staff also requests the Board affirm the determination the structure as shown and constructed meets the definition of a "fence" requiring the submittal of a fence permit from the Planning Division. Any submitted fence permit can only approved if found to be in compliance with the zoning code.

APPEAL
Mr. Jason Norman owner of property at 918 and 920 Howard Avenue has appealed the notice of violation sent by Code Enforcement Officer Tanya Punt and affirmed by Zoning Coordinator Nicole Cromwell that the metal panel fencing put in place at the rear of the property required a fence permit and the material used - metal panels - was not allowed material in a residential zone. After a complaint was filed with the Code Enforcement Division, Mr. Norman was notified twice in 2022 of the lack of a fence permit and notified verbally by Code Enforcement that metal panels are not considered to be commonly used fence materials in residential areas. Code Enforcement Officer Tanya Punt confirmed the findings with the Zoning Coordinator. Mr. Norman filed the appeal on February 15, 2023. Filing an appeal stays all proceedings for enforcement of the code. The property is within a First Neighborhood (N1) zone district and is legally described as Lots 37 & 38, Block 18 of the Broadwater Subdivision. Mr. Norman has owned the property since at least 1996 and currently resides at 633 Howard Avenue. 

Mr. Norman's first contention is the structure does not meet the definition of a "fence" as described in the zoning code. Here is the current code definition of a fence (Sec. 27-1803 "F" terms): Fence: A barrier composed of posts connected by boards, rails, panels or wire for the purpose of enclosing space to separate parcels of land. This term also includes a masonry wall. In order to determine whether a structure is or is not a fence, you must analyze the definition. First, is the fence composed of posts connected by boards, rails, panels or wire? The structure is composed of posts and panels as well as a gate on the east side. Secondly, is the purpose clearly to enclose space? Again, the structure encloses a space to the south of the second dwelling on the property. Third, does the structure serve to separate a parcel of land from any other parcel of land? It appears the structure serves to separate this parcel of land from the alley parcel of land. Here is the definition of "parcel" (Sec. 27-1803 "P" terms): Parcel: A single tract or parcel of land, no matter how legally described whether by metes and bounds, certificate of survey, and/or by lot or lots and block designation as in a recorded plat, which at the time of applying for a land use is designated by its owner or developer as the tract to be used, developed or built upon as a unit of land under single ownership or control and assigned to the particular use for which the land use approval is being secured and having frontage on or legal access to a public street.

There are additional fences extending from the northeast and northwest corners of the dwelling at 920 Howard to the side property lines to the east and west. The same metal panel material has been used to enclose a space to the north of the dwelling at 920 Howard. This interior fence separates the interior yard space between the two dwelling units (918 and 920 Howard) and is not a fence for permitting purposes since it does not separate this parcel from another parcel. It does serve to provide separate outdoor space for this dwelling at 920 Howard. The metal panel fence that is south of 920 Howard does separate this parcel from the alley and totally encloses an area adjacent to the dwelling. This meets the definition of a fence. A prior ruling by the Board of Adjustment in 2013 for an "interior" electric fence for a wholesale auto auction (Variance 1136) found that a fence inside an exterior or boundary fence, was not a fence subject to permitting or materials limitations in the code. If the fence installed south of the dwelling at 920 Howard were an interior fence - e.g. enclosed by another fence - it would not be subject to permitting or materials limitations. Mr. Norman claims the fence was included in the building plans to remodel the garage into a dwelling unit which the city approved through a permit in 2017 (Permit BP-17-01233 - attached). The site plans were not archived by the city so the only document available is the application form filled out by the contractor. Mr. Norman states the Building Inspector stated the metal panel fence did not need a separate permit because the fence was under 6 feet in height. The building inspector was likely only referring to the Building Code - not any other city code such as Zoning. Aerial photographs of the property between 2015 and 2019 are not available but by the summer of 2019, the fence south of 920 Howard along the alley was in place.

The appellant argues that metal panels are commonly used fence materials in residential areas of Billings. Mr. Norman has provided 300 photos gathered from the internet of metal panel fencing. Mr. Norman did not provide locations for all these photos and Planning staff cannot determine if any of these are located in Billings. In 2004, the city considered and adopted a change to the fencing material regulations in zoning. (Ord. 04-5292 pages attached) The code change allowed "finished or coated steel or aluminum building panels" only within industrial zoning districts. An appeal filed in 2002 by Bruce Simon, on behalf of a some industrial property owners, challenged the 2002 Zoning Coordinator determination that metal building panels were not commonly used fence materials in any district. The Zoning Coordinator's determination was affirmed by the Board of Adjustment. Since code change in 2004, many salvage yards, storage yards and similar businesses in Billings have used these types of panels as fencing material. The code change in 2004 specifically excluded this material from use in any commercial or residential zone district. This exclusion has continued throughout the zoning code until the present. Any material not included in the listed materials could be requested for approval by the City Council through the special review process. No special reviews have been submitted to consider other materials for use in residential zones. The code lists materials allowed in residential and commercial zones as well as a separate list for materials allowed in industrial zones. Here are the two lists: Section 27-1209.E - Fence Materials
1. Residential and commercial zones.
(a) Generally. All fences in residential, and commercial zoning districts shall be constructed from materials which are commonly used for fencing.
(1) Commonly used fence materials include wood, brick, stone, split railing, chain-link, wire, vinyl, ornamental iron work.
(2) Prohibited materials: Railroad ties, intact wood pallets, tires, or rubble.
(3) Salvaged material that do not meet one of the commonly used fence materials identified above are generally prohibited except as provided in this section. Salvaged material may be used for fencing where:
(i) The appearance of the completed fence is substantially similar to and consistent with the design of a fence constructed of commonly-used materials,
(ii) The salvaged material fence is constructed according to generally applicable fence construction standards, and
(iii) The salvaged material is in good repair and capable of long-term maintenance by the property owner.
(4) Materials not listed are subject to special review.

2. Industrial zones. All fences in industrial zoning districts shall be constructed from materials commonly used for fencing and shall not be constructed from railroad ties, intact wood pallets, rubble, or salvaged material.
(a) Commonly used fence materials include wood, brick, stone, split railing, chain-link, wire, vinyl, ornamental iron work, finished or coated steel or aluminum building panels.
(b) Barbed wire is only permitted where an eight-foot tall fence is permitted. The barbed wire must be placed on top of the fence and must be located a minimum of eight (8) feet from the ground. Electric fencing is not permitted.
(c) Materials not listed are subject to special review.

The City could have included the metal panels in the residential and commercial zones list of commonly used materials but it did not. Metal panel fencing is a common material used in industrial settings, but is now considered an uncommon material used in residential settings.

Fence contractors have been advocating with the City Council to allow metal panels to be used for residential areas. Wood-framed metal panel fencing can be constructed that does not look out of place in a residential setting. However, the code does not yet allow the use of this material and local fencing contractors are aware of this limitation. Mr. Norman has provided letters from metal fabricators - Protech Steel (2), and Bridger Steel - supporting the use of these panels. In addition, Mr. Norman has provided internet information from Fence Contractors (15) that market corrugated metal panel fencing. None of these fence contractors work in the Billings market. There is one of these contractors from Sheridan, Wyoming - Bockman Group, Fence Station.

The Code Enforcement Division receives several hundred complaints each year about residential fencing. The most common complaint is the installation of fencing or repair of fencing without a permit. The second and third most common complaints are the height of the fence and the fence may be in the clear vision area of a street, alley or driveway intersection. The Code Enforcement Division officers check each complaint for validity, whether the fence is made of proper materials, and whether a fence permit was obtained for the construction or repair of the fence. The most common "un-permitted" material used in residential fencing are salvaged wooden pallets. Complaints about use of metal panels in residential areas is rare. Metal panel fencing typically requires a knowledgeable contractor to install due to the weight of the panels and attachment requirements. Since most local fence contractors are aware that metal panels may not be used in residential areas, this is not a common occurrence. In 2018, the Board heard an appeal related to the use of salvaged wood from pallets to construct a fence in a downtown neighborhood location. The Board found the use of recycled material from wooden pallets to construct a new fence is acceptable under the zoning code. The Board also found that the use of whole wooden pallets would not be allowed. I have attached the approval letter and photos from the 2018 appeal. 

Planning staff respectfully request the determination that 1) a fence permit was required for the enclosure south of 920 Howard Avenue and 2) metal panels for fencing may not be used in a residential zone. 
 

Mr. Norman contacted neighbors in person and has provided a document that several residents and owners signed that shows no opposition to the constructed fence. Not all of the names on this document are owners of property but may be residents of the neighborhood. The Planning Division notified all property owners within 150 feet, published a legal ad and posted the property as required by the code. No letters or correspondence has been received by the Planning Division on this appeal other than from Mr. Norman. The public is able to comment during the Board of Adjustment meeting.

The Board of Adjustment may take one of the following actions:

• Affirm in whole the Administrative Decision that the structure is a fence, requires a permit, and may not be constructed from metal panels
• Affirm in part and reverse in part the Administrative Decision
• Reverse in whole the Administrative Decision
• Delay Action on the Appeal until the next Board meeting
• Allow the appellant to withdraw the Appeal

Any appeal requires the affirmative vote of four or more members of the Board to reverse, in whole or in part, the Administrative Decision. Any decision of the Board may be appealed to district court by any party. Once a decision is made, no new appeal or variance for this property concerning this fence may be submitted to the Board of Adjustment for one year.

Affirming or denying the appeal in whole or in part will not affect the Planning Division budget.