A Denver man has spent thousands of dollars fighting a city board's ruling that a ten-foot-high fence between his house and garage must be lowered to eight feet. Despite receiving no objections to the 24-foot-long fence from neighbors, the city is insisting that Jay Seller's current fence has to go. And because of the way it's constructed, the entire fence will probably have to be removed and rebuilt.
Seller lives in an 1894 brick home he renovated at the corner of 14th Avenue and Gilpin Street. When he bought the house in 1993, a crumbling eight-foot-high fence was already in place along busy 14th Avenue, where 15,000 cars a day zoom by. Sellers replaced the fence without securing the proper permits.
That was his big mistake. For the past three years, Seller has been fighting over the fence with Denver's Board of Adjustment for Zoning Appeals. While Denver routinely grants variances to homeowners who want to go over the standard six-foot height allowed by the city, Sellers has been repeatedly rebuffed in his quest for such a variance by the board.
Even though Mayor Wellington Webb won a variance to put up an eight-foot-high fence at his home west of City Park last year and other Denver homeowners have succeeded in getting permission to put up fences as high as thirteen feet, the zoning board has held fast to its insistence that Seller's fence must be lowered. From the street, Seller's wooden fence looks like an extension of the house and likely wouldn't even be noticed by most passersby. And while the city board has refused to approve his fence, Denver has actually used public funds to subsidize tall fences for wealthy property owners along First Avenue. A series of stone and brick walls, many of them well over ten feet tall, has been built with city bond funding for homes directly across the street from the Denver Country Club.
So far, Seller has spent $4,000 for an attorney to represent him; the fence cost only $1,400. "I think it's the most expensive fence in Denver," he says. And it may get more expensive. Seller says he's unlikely to carry his battle to district court; instead, he probably will build a shorter fence.
Seller says it didn't even occur to him that he needed to get approval to put up the new fence. "I assumed since there was a fence already there, it was okay," says Seller. "There are ten-foot fences all over Capitol Hill."
Since buying the house, Seller has transformed the backyard into an urban oasis, with tiered gardens, fountains and a hot tub. He says he wanted a slightly higher fence to cut down on the noise from 14th Avenue and give the yard more of a secluded feel. "I wanted to make it more soundproof and have more privacy," he adds.
While tall fences in other neighborhoods have become controversial, Seller has obtained signatures of support from 33 of his neighbors. He has also won okays for a variance from the zoning department and the city attorney's office. And no one spoke in opposition to the fence at any public hearings held by the city board.
Seller is especially miffed that the board granted a variance to a homeowner who built a thirteen-foot-high masonry fence at 13th Avenue and Josephine Street despite the objections of some nearby residents.
"None of the neighbors have complained," says Seller. "I went up and down the street with a petition and got them all to sign."
A spokeswoman for the Board of Adjustment says its five members cannot comment on cases under review because the board is "quasi-judicial" and its decisions can be appealed only to the district court. The members of the board are all volunteers who are appointed by the mayor.
In rejecting Seller's appeal in April, the board issued a lengthy written explanation of its position. While acknowledging that Seller's fence "will not alter the essential character of the district," and calling his violation of zoning law "minor and technical," the board insisted that an eight-foot fence should be adequate. Because the fence sits on a three-and-a-half-foot retaining wall, the board said, an eight-foot fence was tall enough to protect Seller's privacy.
"Given that even an eight-foot fence is twice the height allowed by the code in the front setback, a ten-foot eight-inch fence appeared excessive and out of harmony with the purposes of the code," wrote the board. (Seller says the fence is ten feet tall from the ground up, but Denver measures the height of fences on a retaining wall from several feet back, accounting for the extra eight inches the board attributes to the fence.)
Seller's house is in the Wyman historic district, and all changes to building exteriors must be approved by Everett Shigeta, the Denver Landmark Commission architect. The house was built by nineteenth-century Colorado Supreme Court justice John Campbell and is frequently part of the tours of historic homes sponsored by Capitol Hill neighborhood groups. One of those groups, Uptown on the Hill, submitted a letter supporting Seller's fence and noting that Seller had worked hard to renovate a previously neglected house.
"It's very unusual for a neighborhood group to take a position like that," says Seller.
In historic districts, fences must be made of "traditional" materials and have to meld with their surroundings. All new construction has to go through a design-review process supervised by Shigeta's office.
Shigeta says most of the disputes in the neighborhood over fences revolve around construction materials rather than height. He also notes that Seller failed to obtain permits before putting up the new fence.
"It was built without design review or permits," says Shigeta. "We've had people put up fences that are fourteen feet high without permission. Maybe they do it at midnight."
Shigeta says his main concern is that homeowners in historic districts realize they need to follow design guidelines before making alterations to the exterior of their homes. Initially, Shigeta objected to the height of the fence; he later changed his mind and recommended that Seller be granted a variance.
But last week, the Board of Adjustment again refused to grant Seller permission to keep the fence. His contractor has already told him that it wouldn't be possible to simply cut two feet off the fence and that the entire fence would have to be rebuilt.
Seller is especially proud of his pleasant backyard deck with its shrubs and flowers, gurgling fountains and hot tub. Despite the proximity to one of the busiest streets in central Denver, Seller has fashioned a backyard that has the remote and private feel of a Mediterranean courtyard. But since many of the nearby buildings are two stories, Seller fears his neighbors may soon see more of him than they ever wanted to as he steps into his hot tub.
"They may get mooned," he says with a shrug.
