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15 - Fence Code Review & DiscussionItem No. 15 TO: Mayor & City Council Grayson Path, City Manager FROM: Andrew Mack, AICP Director Planning & Community Development SUBJECT: Fence Code Review & Discussion DATE: April 26, 2021 BACKGROUND At its last meeting held on April 12, 2021, members of council heard from a number of citizens regarding the City's fence requirements and concerns about the `degree of restrictiveness.' As follow up to this input, council directed staff to place this item on the next agenda for discussion and review of the City's fencing requirements. Council was also provided with a memo from the City Manager summarizing some of the issues, providing a copy of the entire fence regulations under the City's Building Code, and indicating that a follow up presentation would be placed on the agenda for the April 26, 2021 regular meeting agenda. The regulation of fences is a common practice by local government throughout the entire country. Although the specific requirements for construction and standards vary from city to city, there are a number of common factors that can be found in many jurisdictions to address a variety of concerns including safety, material durability, aesthetics, maintenance, materials and general common decency toward neighboring property owners. It should be pointed out that staff has conducted a survey of 11 surrounding communities in the region regarding their fence regulations. The research work was completed at the time this staff report was completed and a thorough analysis and comparison of the community regulations has not yet been completed. Additional time will be needed for this assessment. The current fencing requirements for Paris are contained in Chapter 11.5 of the City Code. The regulations for the City were updated and adopted by the City Council 13 years ago on 3/28/2008. This was the result from a 3 month code enforcement task force consisting of 3 Council members and 14 interested members of the public at large in the community. The full Ordinance adopting these changes contained in Ordinance 2008-008 are attached again to this report. The elements contained in the ordinance may be summarized into the following general categories: 1. Definitions 2. Nuisance for unsafe materials or deteriorated conditions 3. General standards pertaining to permitted and prohibited materials & restrictions 4. Fence height by zoning district, yard placement & lot size 5. Gate required, private covenants & research, and direction in which post sides must face Page 1 of 4 6. Prohibited fence placement restrictions and related structural components 7. Permit, plan and fee requirements for construction approval and inspections 8. Certificate of Appropriateness (COA) Permit (Historic District Requirements) 9. Fencing requirements when satisfying incompatible land use screening requirements 10. Construction & maintenance requirements and provisions for nonconforming fences 11. Abatement 12. Variances STATUS OF ISSUE Based upon the amount of time and effort that was put into the substantial updating of this section of City Code in 2008, it would seem that a complete re -write and setting aside of these fence requirements is not in the best interest of the health, safety, welfare and aesthetics of the community. Based upon the concerns raised by the citizens however, the Council may wish to consider re-evaluation of some elements of the comprehensive fence standards to some extent. From my perspective as a planner working in numerous communities over my professional career, I would suggest from my initial review of the regulations that the Council give consideration to 3 main areas of the code if there is a consensus on the need for any changes. 1. Fence Permit Requirements. The requirements for obtaining a permit to construct a fence vary from community to community. My experience has been that more cities do not require a permit for construction of a fence than the number of communities that do. The main reason for this is two -fold. 1. Greater staff time is required for permitting and inspections. 2. Once the City issues a permit, arguments can arise between neighboring property owners with regard to where the fence is constructed in relation to the property line. Additional surveying fees can be expensive when added to the cost for a new fence and is commonly avoided. The location of the property line is a land owner responsibility and not the City's. However, once the City approves a permit for a fence and disputes arise between neighbors, the City can frequently be brought into the middle of the dispute which can place the City in a position of having to defend its position of not being responsible for such civil disputes. This involves more staff time to assist with research and/or help with best available information. It is not a productive use of staff time when such instances occur and worse, can leave an unfavorable viewpoint of the homeowner towards their city government services. The Council should re -visit the need for a permit and consider eliminating this requirement where an engineering review analysis is not required by either State Pool code requirements in conjunction with a pool, or by the International Code Congress (ICC) for solid fence structures seven (7) feet in height or greater requiring structural engineering analysis. Staff suggests that the council approve a change to eliminate the permit requirement for all fences under seven (7) feet in height, but still require for those solid type fences seven (7) feet in height or greater as required by the ICC. The elimination of this requirement may also be viewed as a lessening of government restriction on land use and building activity; while at the same time reducing the staffing costs associated with permitting, inspections and fence standards explanation for issuance of permits. The COA permit for historic districts should continue to remain in place with respect to regulating the type of materials that fences may be constructed of in those designated residential districts. By eliminating the permit requirements, the remaining standards would still apply. They would then be enforced on a complaint basis when reported or identified by code enforcement, building and planning staff on a case-by-case basis. Page 2 of 4 The summary of all fence permit activity in the City from 2014 -present is as follows: Applications Inspections Total Fees Building Permit (Fences) 532 190 $10,338.25 2. Fence Height Requirements. A concern is identified with regard to allowing fences in the side and rear yards up to a height of eight (8) feet. Again, according to the ICC engineering plans are required for 7 feet in height or taller to verify wind loading and assure that they will not fall over and cause injury or damage to property. This has not been done in the past and has become a new permit requirement. Common practice in the majority of all communities from my experience is to limit fences in residential areas to a maximum of six (6) feet. Taller fences over 6 feet can further reduce air and light to side and rear yards with smaller lots which can impact health or psychological effect of being more boxed into a yard by causing the feeling of more structure massing on lots and the effects of claustrophobia. The most recent fence causing the concern before Council was constructed at 8 feet in height. The original complaint received regarding the fence was that it was too high. Although it met the maximum height requirement, the point is that it was perceived by the neighbor as being too tall. Consideration should be given to reducing the maximum height to below a height requiring structural wind loading analysis and a permitting requirement for solid fences and allowing all previous constructed fences over 6 feet to become non -conforming. If, however, Council chooses not to reduce this height standard for single family residences, then perhaps a dual permit vs. no permit requirement could be required with 7 feet in height being the permit trigger. A change to a maximum 6 foot requirement by council is suggested. 3. Fence Facing/Orientation Requirements. The placement of the post -side of the fence as being required to face inward toward the rear and side yards of the lot was the principal concern expressed at the last meeting. In each and every position I have ever worked this has been the standard requirement for all communities. Apparently the practice in Paris has been hit and miss depending upon what the customer instructs the fence contractor to do. The ordinance clearly requires them to face internal to the lot, but past enforcement has been inconsistent or non-existent. There are safety, aesthetics and practical reasons for this requirement. First, from a safety standpoint it helps to preclude persons from outside the fenced yard to climb the fence by use of the posts and cross board members from a board -on -board type fencing. This is particularly important where restrictions to pool areas are the reason for a barrier. It also assures greater safety to residents from outside intruders attempting to peer in or trespass onto private property. From the appearance aspect, the smooth or non -post side of the fence is typically considered the decorative side of the fence. It is out of common curtesy and respect to adjoining neighbors and the public views from the street that this side be faced outward. An additional consideration from the practical side of things is that maintenance of both the fence surface and grass on the post side of a board fence is much more difficult. The smooth side can typically be mowed right up against without additional trimming required to keep a yard well groomed. This is not true of the post side of the fence and reversing the direction of the fence imposes that additional work on the neighbor when fences are constructed up to or very near the property line. In such instances, the owner of the fence is imposing this additional maintenance work on the adjoining neighbor without mutual consent and can lead to disharmony amongst neighbors. Staff does not support making this change. If, however, the Council decides to modify this requirement, it is recommended that the fence type of construction or design be required to be double -sided with the decorative side facing both directions to avoid the above concerns should the fence owner choose to place the decorative side inward. Page 3 of 4 STAFF RECOMMENDATIONS It is recommended that Council consider and discuss the subject and provide Staff with a direction of what, if any changes should be considered to the regulations. Should Council concur with any or all of the above staff suggestions, then further analysis can be completed, and ordinance amendment draft prepared and a formal hearing conducted according to the code amendment procedures before the Council at a subsequent meeting in the near future. Page 4 of 4 ORDINANCE NO. 2008-008 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS, ADDING A NEW CHAPTER 11.5 ENTITLED FENCE REGULATIIONS TO THE CODE OF ORDINANCES OF THE CITY OF PARIS, TEXAS; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; PROVIDING A REPEALER CLAUSE, A SEVERABILITY CLAUSE, A SAVINGS CLAUSE, A PENALTY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Paris, Texas created a Code Enforcement Task Force made up of three (3) City Council members and fourteen (14) interested citizens from the City of Paris to review and study various issues affecting the cleanliness and appearance of the City of Paris; and WHEREAS, at regular meetings of the Code Enforcement Task Force in January, February and March, 2008, the Task Force reviewed, discussed, and developed proposed regulations addressing fencing and screening devices in the City of Paris and has recommended that these regulations be adopted by the City Council and added as Chapter 11.5, Fence Regulations, to the Code of Ordinances of the City of Paris; and, WHEREAS, the City Council having reviewed the recommendations of the Task Force for adding a new Chapter 11. 5, Fence Regulations, to the City Code of Ordinances hereby finds and determines that the changes recommended below are in the best interest of the City of Paris and its citizens and should be adopted. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS: Section 1. That the findings set out in the preamble to this ordinance are hereby in all things approved. Section 2. That a new Chapter 11.5 of the Code of Ordinances of the City of Paris, Texas, be, and the same is hereby established to read as follows: "CHAPTER 11.5 FENCE REGULATIONS "Sec. 11.5-1. Definitions (a) Average grade. The average point between the lowest point of elevation of the finished surface of the ground, paving, or sidewalk and the highest point. (b) Chain Link Fence. A fence structure made of metal fence fabric attached to galvanized or wooden posts in an approved and workmanlike manner. -1- (c) Chief Building Oficial. The chief building official of the City of Paris or his designee. (d) Corner Property. 1) Property which abuts an alley, parking lot, or driveway and a street. 2) Property which abuts two streets. 3) Property whose common lot line between two or more adjacent properties form different yards. (e) Electrical Fence. A barrier that uses painful or even lethal high-voltage electric shocks to deter animals or people from crossing a boundary. (f) Fence. A structure or hedge serving as an enclosure, barrier, or boundary made of either metal, wire, naturally durable wood, treated wood, synthetic material, or plant material as defined herein. A fence shall not include equipment screening devices as may be required under the design standards for historic districts. (g) Fence Arm. An arm that projects from the top of a fence, typically to hold barbed wire. (h) Front yard. An open space unoccupied by a principal structure on a lot facing a street, extending across the full width of the front of a lot between the side lot lines, and in front of the front -most corners of the principal structure, including any unenclosed portion of a front porch, carport, portico, or other unenclosed structure located beyond the front face of the principal structure. (i) Hedges. Cultivated plant material, deciduous, or evergreen plant material planted in such a manner so as to constitute a fence. 0) Height. The distance measured from the existing average grade of adjoining properties to the top of the tallest structural member of a fence. (k) Metal R Wall Panels. Metal R Panel - A metal R panel, also known as a rib panel, is a wide panel that is very high in strength. The metal R panel is normally made from aluminum or metallic coated steel and is typically available with a rib height of 1.5 inches (1.5") and width of 32" to 39" per panel. (1) Nonconforming Fence. A fence located within the corporate city limits of Paris, Texas, which does not conform with the requirements or standards of this ordinance, but which was lawfully constructed and in existence and in safe condition on the day that this ordinance was enacted by the City Council. (m) Privacy Fence. A fence structure consisting of material constructed to inhibit sight through said fence. -2- (n) Properly maintained. Maintained in a workmanlike manner and kept in a condition of good repair, with no missing or broken parts, and generally plumb, level, in line, and unmarred. (o) Rear yard. An open space unoccupied by a principal structure extending for the full width of the lot between the principal structure and the rear lot line, and behind the back -most corners of building line of the principal structure. (p) Screening Device. A solid fence, wall, or other barrier designed to conceal property from public view. (q) Right-of-way and Easement. The area between the property line and the curb or street edge. (r) Side yard. An open space unoccupied by a principal structure, situated between the building and the side line of the lot, and extending through from the front yard to the rear line of the lot, including any unenclosed portion of a side porch, carport, portico, or other unenclosed structure located beyond the side of the principal structure. Any lot line not a rear line or a front line shall be deemed a side line. (s) T -Posts. A fence post, usually of metal, designed to support fencing materials. (t) Wire fence. Fencing constructed of wire or similar materials, includes fences using t -posts, hog, chicken, or other penning materials. (u) Workmanlike. Executed in a skilled manner, e.g., generally plumb, level, square, in line, undamaged, and without marring adjacent work. (v) Yard. Front yard, rear yard, and side yard as defined herein. Sec. 11.5-2. Nuisance declared Any fence which is or has become dangerous to public safety, health, or welfare is hereby declared a public nuisance and is subject to removal by the city upon failure by the fence owner to take necessary action to repair, replace, or remove such fence after due notice as provided herein. Sec. 11.5-3. General standards for fencing. (a) Fence materials and types: (1) General standards. -3- a. Fences may be constructed of stone, masonry, brick, wrought iron, durable or treated wood, polyvinyl chloride (PVC) fencing materials, chain-link, or other materials of like kind that the chief building official determines have the same quality, appearance, and durability. All materials must be of the type that is customarily used in residential landscaping. b. All fencing materials used throughout the property must be complementary of each other. C. All fences must be constructed in a neat and workmanlike manner, in accordance with manufacturers' specifications, and shall be properly maintained at all times. (2) Chain link fences. a. Chain link fences less than five feet in height in residential districts shall have the finished edge of the material on the top of the fence. b Chain link fences are prohibited in front yards in uses other than industrial. (3) Masonry fences. Any stone, masonry, or brick wall or fence constructed of similar materials greater than four feet in height shall be submitted on properly drawn plans and sealed by a Registered Professional Engineer; the plans shall be submitted to the City Engineer for review and approval prior to beginning construction. (4) Electric fences. A fence constructed to intentionally conduct electrical current shall not be permitted in any zoning district except Agricultural district; however, in no case shall electric fences be permitted adjacent to a lot used for residential purposes. (5) Barbed wire fences. Barbed wire fences are permitted in Agricultural districts on property over 4 acres and in LI and HI districts; however, in no case shall barbed wire fences be permitted on property in Agricultural districts that are located adjacent to a lot used for residential purposes. (6) Fence arms. Fence arms shall not be permitted in any zoning district except LI and IR districts; however, in no case shall fence arms extend beyond the property line. -4- I (7) Prohibited materials. The following fencing materials are not permitted in any zoning classification: a. Fences utilizing materials that are not commonly used in residential landscaping and which are historically intended for temporary uses only. b. Fences incorporating woven wire mesh (chicken wire), welded wire mesh, woven wire (hog wire), or other penning materials, on property that is not zoned and actively used for agricultural purposes; however, such pens may not be located within 100 feet of property used for residential purposes. C. Fences incorporating t -posts as the structural support for the fencing materials. d. Fences made up of or utilizing rope, cable, railroad ties, utility poles, or any other similar materials or materials not specifically manufactured for permanent fencing; however, cable fencing may be utilized in City parks or on other City recreational property. e. Corn cribbing (snow) fences. f. Fences made of sheet metal, fiberglass, solid plywood, scrap lumber, pallets, temporary fencing, or other non -customary materials. g. Fences made of common concrete, hadite, or cinderblock. (b) Fence heights: (1) Front yard fence requirements. a. No fence shall be permitted in the front yard with the following exceptions: i. On lots zoned Historic Overlay District (HD) and in accordance with the design standards adopted by the Historic Preservation Commission. ii. On lots in excess of 2 acres in size which are used for single-family residential purposes. -5- iii. On lots which are zoned and used for LI or HI purposes. b. If permitted, ornamental fences may be permitted in a front yard in residentially zoned areas if not designed or serving as an enclosure. Ornamental fences include such things as split rail, picket, decorated metal, and .brick fences, but not such things as chain link, wire, or other similar fences. C. In residentially zoned areas, no fence over forty-two (42) inches in height above the average grade of the yard shall be permitted from the front building line to the street right-of-way line. d. In residentially zoned areas, all front yard fences shall have a minimum of 50 percent open area for passage of air and light. (2) Side yard fence requirements. Fences may be constructed to a maximum height of eight feet on any side property line up to the building line of the principal structure. (3) Rear yard fence requirements. Fences may be constructed to a maximum height of eight feet on the rear property line up to the building line of the principal structure. (4) Corner lot fence requirements, areas used or zoned for residential purposes. a. On all corner lots in residential districts which have opposing rear lot lines, whether directly or across an alley, fences may be constructed to a maximum height of eight feet along the side and rear yard lines. (5) No fence adjacent to a required subdivision screening wall, whether parallel or perpendicular to the wall, may be constructed higher than the height of the subdivision screening wall unless granted a variance by the board of adjustment. (6) Fences around tennis courts, regardless of the district in which they are located, may be constructed to a maximum height of 12 feet. Such fences shall be chain link or other open view material so as to minimize the visual impact of the fence. Fence arms shall not be allowed on tennis court fences. (c) Other fence standards: (1) Every fenced enclosure constructed under the provisions of this article shall have at least one gate in its perimeter. (2) In the event of subdivision regulations, deed restrictions, or other restrictive covenants regulate fence height, location or construction, the more restrictive regulations shall apply. (3) For all fences, the installing party shall construct the fence with the post side or "bad side" facing the installing party's property so that the side of the fence facing adjacent properties or the public right-of-way does not contain the structure and/or support of the fence. This provision shall apply to both side yard and rear yard fences that face a public right-of-way, park, school, or other public area. Sec. 11.5-4. Prohibited conditions The following shall be prohibited: (1) No fence shall be constructed on or in that portion of any corner lot which is included in a triangle on the street corner of the lot formed by a diagonal line intersecting the property lines at points twenty (20) feet from the street corner intersection of the property lines. The city engineer may require additional sight distances to be maintained where specific conditions render such provisions necessary to provide for the public health and safety. (2) No fence shall be constructed within any drainage easement in the corporate limits of the city or the ED unless the city engineer shall have first determined and advised the chief building official, in writing, that he believes such fence shall, in all probability, not interfere with or impair the natural flow of water across the drainage easement. (3) No fence shall be constructed on a vacant lot beyond the average front setback line of adjacent structures within the same block. (4) Fences, guy wires, braces or structural members of any fence constructed upon or protruding over property over which the City or the general public has dominion and control, owns or has an -7- easement over, under, around or through, except upon utility easements which are permitted to be fenced as provided herein. (5) Spikes, nails, barbed wire, razor wire, or other sharp pointed instruments affixed, placed upon, or allowed to exist in any manner attached to a fence or part of a fence except as specifically allowed herein. (6) Any fence installation, addition or improvement utilizing electricity or electrical components except as specifically allowed herein. (7) Fences which deny access to, or the visibility of, fire hydrants, water meter wells, or other utility metering devices. (8) Fences which illegally restrict visibility for vehicular or pedestrian traffic. (9) Damaged or unstable fences if the condition of the fence is a hazard to the health, safety, and/or welfare of the general public. (10) Fences consisting of broken concrete, hadite or cinderblock, or other unauthorized materials to be stacked in piles or rows. (11) Fences or living screen hedges so constructed or planted that disrupts or diverts the natural flow of water or drainage. (12) Fences or hedges erected or installed except as allowed herein. Sec. 11.5-5. Permits required (a) Permits: (1) It shall be unlawful for any person to install or cause to be installed or to permit any person to install a fence, or to make any alterations, additions, or changes to a fence, without first having procured a permit to do so from the chief building official. (2) The fee for the permit required by this section shall be $25.00 and shall be paid prior to the issuance of the permit; however, this fee shall be waived in connection with a project or permit fees for a new construction project. (3) The chief building official shall require a plot plan showing the lot size, all improvements on the lot, and the proposed location of the -8- fence to be constructed before a permit will be issued under this section. The plot plan need not meet the requirements of a plat; however, it shall contain sufficient information to allow the chief building official to provide an adequate review of the application. (4) The chief building official shall require detailed plans for all fences. The chief building official or his designee may require conditions or revisions he deems appropriate to achieve the intent of this section. The plans may include manufacturer specifications and installation instructions, so long as the information provided to the chief building official is sufficient to provide an adequate review of the application. (b) Inspections required: (1) When any fence for which a permit has been issued under this article is completed, it must be inspected by the chief building official or his designee for compliance with this ordinance and applicable construction codes. The chief building official's office shall be notified upon completion of the fence. (2) The chief building official will certify acceptance if the fence complies with the provisions of this article or reject the fence if it does not so comply. (3) The owner of the property shall be required to remove any non-compliant fence or replace it with a fence that does comply. (c) Duty and responsibilities of Fence Permit Applicants: (1) Fence Permit Applicants are responsible for the determination and location of easements, rights of way, and utilities prior to application for a fence permit and construction of fences. (2) Fence Permit Applicants shall be responsible for researching and complying with all private deed restrictions or private subdivision requirements. Sec. 11.5-6. Screening Devices (a) When permitted. Screening devices as described in this section may be permitted in areas used for light industrial and heavy industrial activities. (b) When required. All wrecking yards, junkyards, salvage yards, landfills, demolition businesses, recycling businesses and automotive repair businesses MI which frequently store inoperative, wrecked, or dismantled vehicles due to abandonment by owner or for use in obtaining parts, shall be fenced on all sides and shall be screened from view from the public right-of-way and from adjacent property; provided, however, a screening device as described in subsection (c)(2) herein shall not be permitted on property that is directly adjacent to or within 100 feet of an area zoned or used for residential purposes. (c) Screening materials. (1) A screening device must be at least eight feet in height and be constructed of wood, stone, masonry, brick, decorative concrete block, or other permanent material, have a completely solid area with no openings, and be permanently maintained. (2) A required screening device may be constructed of metal "R" wall panels mounted vertically, with a finished top cap of the same color as the fence panels; provided, however, metal "R" wall panels may not be used for screening or fencing within 100 feet of a residential zoning district or property used for residential purposes. (3) A landscaped strip or an earthen berm planted with trees or shrubs (living screen), including a minimum of eighty (80) percent non -deciduous trees or shrubs that will achieve sight and noise obstruction, may be provided as a screening device as an alternative to traditional fencing if approved by the board of adjustment. If a living screen is approved, the plant materials must be a minimum of 6 feet in height at time of planting. (4) A combination of subsections (c)(2) and (3) may be provided as a screening device as an alternative to fencing or landscaping alone if approved by the board of adjustment. If a combination is approved, the screening and plant materials combined must be a minimum of 8 feet in height at time of installation and planting. (5) Alternate equivalent screening if approved by the board of adjustment. (d) Standards for screening. (1) All required screening devices shall be constructed so that the finished side (good side) of the screening device faces the public or adjacent property. Any screening device constructed of a material other than stone, brick, or decorative concrete block shall be finished in a bronze or dark earth tone color. -10- (2) All openings in the surface of a screening device for passage shall be equipped with locking gates equal in height and screening characteristics specified above but need not be of the same material as the main fence or wall so long as the material is complementary in nature thereto. (3) All outdoor storage shall be stored inside the screening device and no junk or salvage materials may be piled against the exterior of the screening device or stacked higher on the inside of the screening device than the height of the screening device. 4) Prior to the issuance of an occupancy permit, all approved screening devices must be in place and approved by the City Building Official or his authorized designee. (5) All screening devices shall be permanently and continually maintained in a neat and orderly manner as a condition of use. The City Building Official may suspend or revoke a Certificate of Occupancy for a property if the owner or tenant of the property fails to adequately maintain a screening device. (e) Variance. A variance to the requirements of this section may be granted by the board of adjustment in accordance with the procedure established by this article. Sec. 11.5-7. Construction and maintenance of fences. (a) Every fence shall be constructed in a substantial, workmanlike manner and of material reasonably suited for the purpose for which the fence is proposed to be used. Every fence shall be properly maintained in such condition as to not become or remain in a condition of disrepair or danger or constitute a hazard, eyesore, or public or private nuisance. (b) If the fence is located along a boundary between two properties, both sides shall be maintained by the owner(s) of the fence. (c) If a fence is erected off the common lot line, the property owner on whose property the fence is erected shall be responsible for maintaining the space between the fence and the lot line. (d) Every fence, wall, or hedge shall be maintained in a good and safe condition at all times. Every damaged, dead, or missing element of any fence, wall, or hedge shall be repaired, removed, or replaced immediately as provided herein -11- Sec. 11.5-8. Nonconforming fences (a) Authority to Continue. Except as provided below in subsection (e), any nonconforming fence may be continued so long as it remains otherwise lawful, subject to the regulations of this section. (b) Ordinary Repair and Maintenance. Normal maintenance and incidental repair may be performed on any nonconforming fence or wall; provided, however, that any repair shall, whenever possible, eliminate or reduce any non -conformity in the element being repaired and provided further, however, that this shall not be deemed to authorize any violation of this section. (c) Alteration, Enlargement, Moving. A nonconforming fence shall not be changed or altered in any manner that would increase the degree of its nonconformity, be enlarged or expanded, be structurally altered to prolong its useful life, or be moved in whole or in part to any other location where it would remain nonconforming. (d) Change of Fence. A nonconforming fence that has been changed to eliminate its nonconformity or any element of its nonconformity shall not thereafter be changed to restore such nonconformity or nonconforming element. (e) Damage or Destruction. Any nonconforming fence (or any nonconforming element of a fence capable of change or discontinuance separate from other elements of the fence) which has suffered damage, deterioration or destruction to thirty-five percent (35%) or more of its total surface area shall be removed or brought into conformity with the provisions of this article. (f) Termination of Certain Nonconforming Fences. The following nonconforming fences, walls or screening devices shall be removed or modified to comply with the provisions of this ordinance within thirty (30) days of the effective date of this ordinance to eliminate every nonconformity: (1) Barbed Wire and Electrical Fences. All nonconforming barbed wire fences and nonconforming electrical fences located in residentially zoned areas or located on property used for residential purposes, excepting fences located on Agricultural zoned property as otherwise permitted herein for agricultural purposes. (2) Dilapidated Fences or Walls. Each nonconforming fence that is dilapidated or deteriorated to the extent that the replacement of more than thirty-five percent (35%) of the fence is required. -12- (3) Public Health, Safety, and Welfare. Every nonconforming fence or hedge that poses a threat to the health, safety, or welfare of any person or to the general public. Sec. 11.5-9. Abatement by City of fences found in violation of this Article. The procedure for the removal of fences determined by code inspectors to be in violation of this ordinance shall be the procedure adopted for the removal of substandard structures found in Chapter 7, Article lII, of the Code of Ordinances of the City of Paris. See. 11.5-10. Variance (a) The procedure for seeking a variance to this these fencing regulations shall be the procedure established for variances in Section 16 of Zoning Ordinance No. 1710. (b) A variance may be granted to these regulations if the board of adjustment fords that all of the following conditions apply: (1) Unique circumstances exist on the property that make application of specific requirements in this ordinance unduly burdensome on the applicant, (2) The variance will have no adverse impact on current or future development, (3) The variance is in keeping with the spirit of the these regulations and will have a minimal impact, if any, on the surrounding land uses, (4) The variance will have no adverse impact on the public health, safety, and general welfare, and (5) A financial hardship shall not be considered sufficient grounds for the granting of a variance." Section 3. That all provisions of the ordinances of the City of Paris, Texas in conflict with the provisions of this ordinance are hereby repealed, and all other provisions of the ordinances of the City of Paris not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 4. That the repeal of any ordinance or part of ordinances affected by the enactment of this ordinance shall not be construed as abandoning any action now pending under or by virtue of such ordinance or as discontinuing, abating, modifying, or altering any penalty accruing or to accrue, or as affecting any rights of the municipality under any section or provisions of any ordinance at the time of passage of this ordinance. -13- Section 5. That it is the intention of the City Council of the City of Paris that this ordinance, and every provision hereof, shall be considered severable, and the invalidity or partial invalidity of any section, clause, or provisions of this ordinance shall not affect the validity of any other portion of this ordinance. Section 6. That any person violating any provision of this ordinance shall be guilty of a Misdemeanor, and upon conviction, shall be subject to a fine in accordance with provisions of Sec. 1-6 of Chapter One of the City of Paris Code of Ordinances, and each and every day's continuance of any violation of the above -enumerated sections shall constitute and be deemed a separate offense. Section 7. That this ordinance shall become effective immediately upon its .passage and publication as required by law. PASSED AND ADOPTED this 24th day of March, 2008. ATTEST: ice Ellis,� .. _ ..��. ..... City Clerk APPROVED AS TO M: W. Kent McIlyar, ity At )rney -14-