The purpose of this Part 3 is to preserve the visual openness
of the Town's streetscape by restricting the construction of visual
and physical barriers along the public streets.
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[Ord. No. 1-91, eff. 4-29-1991; amended by Ord. No. 6-03, eff. 8-13-2003 (formerly Ch. 6, § 6-701, of the 1989 Code)]
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As used in this Part 3, the following terms shall have the meanings
indicated:
A wall that is part of a permanent structure, whether a primary
or accessory structure, that has one or more stories and a roof, and
is designed primarily for the shelter, support, or enclosure of persons
or property of any kind, including any additions, such as decks or
balconies, and modifications thereto.
A lot on which two or more adjoining sides abut a public
street.
Materials consisting of wrought iron or a similar material,
designed so as to be decorative rather than solely utilitarian.
A wall that is intended for the purposes of privacy, security,
or enclosure.
A structure serving as an enclosure, barrier or boundary,
including the gate.
Any portion of a yard of a lot located between a house and
the inside front curbline of a public street upon which the house
fronts.
The line formed by the junction of the horizontal and vertical
edges of the portion of the public street curb closer to the individual
lot and farther from the public street.
Any lot that abuts a public street, other than a corner lot.
A road, street, alley or avenue maintained by the Town, county
or state for vehicular use.
A fence or wall that completely replaces a preexisting fence
or wall in one of the yards.
A wall constructed for the sole purpose of holding back ground
or earth.
The portion of the side yard of a corner lot between the
side of the house facing away from public street (the back of the
house) and the rear property line. For the purpose of this article,
a homeowner may designate either side, but not both sides, of the
house facing away from a public street as the back of the house.
For a corner lot, any portion of a yard of a corner lot located
between the house and the inside side curbline of a public street,
and excluding any portion that lies within a front yard or the side/back
yard.
For an interior lot, any portion of a yard located between the
house and the adjacent lot boundary line(s), and excluding any portion
that lies within a front yard or between the house and the rear lot
line.
An architecturally solid erection of stone, brick, or other
material greater than 12 inches in height. A wall may be a building
wall, a retaining wall, or a decorative wall.
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[Ord. No. 1-91, eff. 4-29-1991; amended by Ord. No. 3-91, eff. 5-7-1991; Ord. No. 8-91, eff. 7-15-1991; Ord. No. 8-02, eff. 7-10-2002; Ord. No. 6-03, eff. 8-13-2003; Ord. No. 8-06, eff. 8-11-2006; Res. No. 5-19, 10-17-2019, eff. 11-12-2019 (formerly Ch. 6, § 6-702, of the 1989 Code)]
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A.Â
When required. A permit is required to be obtained from the Town
for any new or replacement fence or wall to be placed or constructed
in the Town of Somerset. No fence or wall of any height may be placed
or constructed on the public right-of-way, in the public street, or
on a Town park.
A.Â
In addition to the provisions of this Part 3, provisions of the Montgomery County Code regulating fences and walls are applicable within the Town. Chapter 51 of the Montgomery County Code, Swimming Pools, is applicable as provided in § 123-2A of the Town Code. Section 6.4.3.C.3 of the Montgomery County Zoning Ordinance is applicable as provided in § 123-1 of the Town Code.
B.Â
If there is any conflict between any provision of this Part 3 and of Chapter 51 of the Montgomery County Code, the Montgomery County Code provision shall apply.
C.Â
To the extent the provisions of this Part 3 are more restrictive than those of Section 6.4.3.C.3 of the Montgomery County Zoning Ordinance, this Part 3 shall apply. In such cases, the Town of Somerset shall administer any such more restrictive provisions.
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[Ord. No. 1-91, eff. 4-29-1991; amended by Ord. No. 3-91, eff. 5-7-1991; Ord. No. 6-03, eff. 8-13-2003; Res. No. 5-19, 10-17-2019, eff. 11-12-2019 (formerly Ch. 6, § 6-704, of the 1989 Code)]
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Any new or replacement fence to be placed or constructed within
39 feet of the inside front curbline in a front yard or within 29
feet of the inside side curbline in a corner lot shall consist primarily
of wood or decorative iron-type materials.
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[Ord. No. 1-91, eff. 4-29-1991; amended by Ord. No. 6-03, eff. 8-13-2003 (formerly Ch. 6, § 6-705, of the 1989 Code)]
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A.Â
Any new or replacement fence located in a front yard, or side yard
of a corner lot or interior lot, or side/back yard of a corner lot,
facing and visible from a public street shall have a finished side
facing the street.
B.Â
Any fence located in the same area but not facing the street shall
have a finished side facing the property of the nearest neighbor,
unless the fence is not visible from that neighbor's property.
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[Ord. No. 1-91, eff. 4-29-1991; amended by Ord. No. 8-05, eff. 12-13-2005; Ord. No. 9-06, eff. 8-11-2006; Res. No. 5-19, 10-17-2019, eff. 11-12-2019 (formerly Ch. 6, § 6-706, of the 1989 Code)]
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The following apply to fences on interior lots:
A.Â
No new or replacement fence shall be placed or constructed within
three feet of a Town sidewalk, measured from the edge of the sidewalk
closest to the property.
B.Â
A new or replacement fence placed or constructed at or within 39
feet of the inside front curbline shall be 42 inches or less in height,
measured from the ground immediately under the fence, and shall be
at least 50% open when viewed from straight ahead, with solid parts
being evenly distributed throughout and no solid part being greater
than four inches in width, with the exception of brick fence posts,
which may be up to 12 inches in width.
C.Â
A new or replacement fence placed or constructed more than 39 feet
from the inside front curbline shall be 78 inches or less in height,
measured from the ground immediately under the fence.
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[Ord. No. 1-91, eff. 4-29-1991; amended by Ord. No. 3-91, eff. 5-7-1991; Ord. No. 6-03, eff. 8-13-2003; Res. No. 5-19, 10-17-2019, eff. 11-12-2019 (formerly Ch. 6, § 6-707, of the 1989 Code)]
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The following apply to fences on corner lots:
A.Â
No new or replacement fence shall be placed or constructed within
three feet of a Town sidewalk, measured from the edge of sidewalk
closest to the property.
B.Â
Any new or replacement fence shall be no more than 6Â 1/2 feet
in height, measured from the ground immediately under the fence.
C.Â
Any new or replacement fence placed or constructed within 39 feet
of the inside front curbline in a front yard or within 20 feet of
the inside side curbline in a side yard shall be 42 inches or less
in height, measured from the ground immediately under the fence, and
shall be at least 50% open when viewed from straight ahead, with solid
parts being evenly distributed throughout and no solid part being
greater than four inches in width, with the exception of brick fence
posts, which may be up to 12 inches in width.
D.Â
Any new or replacement fence placed or constructed between 20 feet
and 29 feet of the inside side curbline in a side yard shall be five
feet or less in height, measured from the ground immediately under
the fence, and shall be at least 50% open, with solid parts being
evenly distributed throughout and no solid part being greater than
four inches in width, with the exception of brick fence posts, which
may be up to 12 inches in width.
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[Ord. No. 1-91, eff. 4-29-1991; amended by Ord. No. 3-91, eff. 5-7-1991; Ord. No. 8-91, eff. 7-15-1991; Ord. No. 6-03, eff. 8-13-2003; Res. No. 5-19, 10-17-2019, eff. 11-12-2019 (formerly Ch. 6, § 6-709, of the 1989 Code)]
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A.Â
No new or replacement wall shall be permitted within 39 feet of the
inside front curbline in a front yard, or within 29 feet of the inside
side curbline in a side yard.
B.Â
No new or replacement wall shall be constructed more than 6Â 1/2
feet in height, measured from the ground immediately under the wall.
C.Â
Notwithstanding the foregoing, this section shall not apply to building
walls or retaining walls necessary to retain existing earth, only
to the extent of the height of the earth to be retained.
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[Ord. No. 1-91, eff. 4-29-1991; amended by Ord. No. 3-91, eff. 5-7-1991; Ord. No. 6-03, eff. 8-13-2003; Res. No. 5-19, 10-17-2019, eff. 11-12-2019 (formerly Ch. 6, § 6-707, of the 1989 Code)]
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A.Â
Duty of Mayor to prepare application form. The Mayor shall prepare
an application form for a permit to be issued pursuant to this Part
3.
B.Â
Completed application required. No fence permit or wall permit shall
be issued in the absence of a completed application.
C.Â
County permit required. No fence permit or wall permit shall be issued
in the absence of a valid fence permit or wall permit issued by Montgomery
County (if required by Montgomery County) for the identical work that
is the subject of the Town permit.
D.Â
Signing of application. The permit application shall be signed by
all of the owners of record of the site upon which the fence or wall
is to be placed or constructed, or by their authorized agents. If
a person other than the owner of the site makes the application, it
shall be accompanied by a written statement of the owner that the
owner authorizes the proposed work and that the applicant is authorized
to make such application.
E.Â
Required information. The permit application shall be submitted to
the Clerk-Treasurer and shall contain the following information, in
addition to other information that may be requested:
(1)Â
The street address and legal description (lot number);
(2)Â
The full name and address of each owner of the property;
(3)Â
A plan or drawing showing the location of the fence or wall in relation
to the entire property, the adjacent public streets and sidewalks,
and the public right-of-way;
(4)Â
A description, including design, height, width, width of solid parts,
and, for fences, the percentage of openness when viewed from straight
ahead;
(5)Â
A specific description of the materials of which such fence or wall
shall consist;
(6)Â
A description of any existing fence or wall on the applicant's property
that is to be removed in connection with the placement and construction
of the new or replacement fence or wall;
(7)Â
If applicable, a copy of the Historic Preservation Commission work
permit approving the identical fence or wall for which the applicant
seeks a fence or wall permit;
(8)Â
The names and addresses of all owners of record of the properties
in the Town of Somerset that are adjacent to the yard containing the
proposed fence or wall, and of the occupants of said property if the
owners of record are not the occupants, and a certification by the
applicant that he provided each such person a reasonable opportunity
to inspect the specifications, plans, surveys and all other documents
to be filed with the application; and
(9)Â
A copy of the relevant permit issued by Montgomery County, if required
by Montgomery County.
F.Â
Available to public. The application and all accompanying documents
shall be available for public inspection at the Town Hall.
G.Â
Fee. A fence or wall permit fee shall accompany the application.
H.Â
Deposit. To cover possible damage to Town property, a deposit in the form of a check or bond shall accompany an application for a permit for wall placement or construction. No deposit is required to accompany an application for a permit for fence placement or construction. This deposit shall be managed by the Clerk-Treasurer in the manner set forth in § 112-13 of this chapter.
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[Ord. No. 1-91, eff. 4-29-1991; amended by Ord. No. 3-91, eff. 5-7-1991; Ord. No. 9-02, eff. 7-10-2002; Ord. No. 6-03, eff. 8-13-2003; Ord. No. 10-07, eff. 9-12-2007; Ord. No. 3-10, eff. 7-13-2010; Ord. No. 5-11, eff. 9-9-2011; Res. No. 5-19, 10-17-2019, eff. 11-12-2019 (formerly Ch. 6, § 6-710, of the 1989 Code)]
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The Mayor, in his discretion, may require additional documents
to accompany the permit application such as:
A.Â
A drawing of the fence or wall viewed from the public street; and
B.Â
A photograph or sketch of a representative segment of the outside
of a fence or wall identical to or as similar as possible in design
and materials to the one to be placed or constructed.
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[Ord. No. 1-91, eff. 4-29-1991; amended by Ord. No. 3-91, eff. 5-7-1991; Ord. No. 6-03, eff. 8-13-2003 (formerly Ch. 6, § 6-711, of the 1989 Code)]
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The Mayor shall examine the application for the permit for placement
or construction of a fence or wall under this Part 3 and the accompanying
documents. In the case of an application submitted with a building
permit application for new construction of a house or an addition,
or while such a project is in process, the application shall be reviewed
by the Town Council. If the Mayor is satisfied that the proposed fence
or wall complies with the criteria for permits under this Part 3,
he shall issue a permit for such fence or wall as soon as is practicable.
If the application does not conform to the requirements of this Part
3, the Mayor shall disapprove such application in writing, stating
the reasons for such disapproval. The Mayor shall act on a permit
application within thirty (30) days after its submission.
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[Ord. No. 1-91, eff. 4-29-1991; amended by Ord. No. 3-91, eff. 5-7-1991; Ord. No. 6-03, eff. 8-13-2003; Res. No. 8-20, 12-7-2020, eff. 1-21-2021 (formerly Ch. 6, § 6-712, of the 1989 Code)]
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The Town Council or the Mayor, as the case may be, shall only
issue a fence permit or wall permit if:
A.Â
The permit application is complete;
B.Â
The proposed fence or wall conforms to the requirements of this Part
3;
C.Â
The Historic Preservation Commission has approved the proposal, if
applicable; and
D.Â
The proposed work complies with all other applicable provisions of
the Town Code, county, state and federal laws.
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[Ord. No. 1-91, eff. 4-29-1991; amended by Ord. No. 3-91, eff. 5-7-1991; Ord. No. 6-03, eff. 8-13-2003; Res. No. 5-19, 10-17-2019, eff. 11-12-2019; Res. No. 8-20, 12-7-2020, eff. 1-21-2021 (formerly Ch. 6, § 6-713, of the 1989 Code)]
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A.Â
An owner or his authorized agent may apply for an exception to the
requirements of this Part 3. Subject to consideration of the open
streetscape purposes of this Part 3, the Town Council may grant an
exception to the requirements of this Part 3 under one or more of
the following circumstances:
(1)Â
In a case of unnecessary hardship specific to that property;
(2)Â
In the case of a replacement to an existing fence or wall in the same location that was either built as an architectural feature of a house, or approved by the Town Council in connection with a building permit under this Chapter 112, provided that the replacement is of comparable design, materials, and finish;
(3)Â
In the case of a new or replacement fence to be placed or constructed
in a front yard, the Council may approve a fence that is:
(4)Â
In the case of a new or replacement fence to be placed or constructed
in a street side yard of a corner lot, the Council may approve a fence
that is:
(5)Â
In the case of proposed fence building materials other than those
specified in this Part 3, provided that the building materials are
compatible with neighboring properties; or
(6)Â
In the case of a fence or wall that does not otherwise meet the requirements
of this Part 3, construction of which is necessary for abatement of
noise from a generator.
C.Â
The Mayor shall prepare, upon the approval of the Council, the necessary
forms to implement this section.
D.Â
The request for an exception shall proceed according to the procedures for a variance, as set forth in § 112-14F.
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[Ord. No. 1-91, eff. 4-29-1991; amended by Ord. No. 3-91, eff. 5-7-1991; Ord. No. 6-03, eff. 8-13-2003; Res. No. 5-19, 10-17-2019, eff. 11-12-2019; Res. No. 8-20, 12-7-2020, eff. 1-21-2021 (formerly Ch. 6, § 6-714, of the 1989 Code)]
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A.Â
Fence or wall permit conditions.
(1)Â
Time
for completing work. Any permit issued for a fence or a wall shall
become invalid if the authorized work is not commenced within six
(6) months from the date of approval or is suspended or abandoned
for a period of six (6) months; provided, however, that the Mayor,
for good cause shown, may extend a permit for an additional six (6)
months and may require payment of a fee in the amount set by a resolution
of the Council.
(2)Â
Duration
of permit. A fence or wall permit shall be valid for the date requested
but not more than a one-year period. The Mayor, upon written request,
for good cause shown, may grant a permit for a longer time, or may
grant an extension of time of six (6) months for an existing permit,
and may require payment of a fee in the amount set by a resolution
of the Council.
(3)Â
Signature
on permit. The Mayor shall sign each permit issued.
(4)Â
Location
of permit and plans. The permit or a true copy of it and a copy of
all plans and other documents submitted with the permit shall be kept
on the site of the property and shall be available for inspection
by officials of the Town, in the course of their duties, during the
entire time that the work is in progress and until its completion.
(5)Â
Compliance
with permit. All work shall conform to the approved application and
plans for which the permit has been issued.
(6)Â
Stop-work order. Whenever the Mayor determines that actions are being taken in violation of the provisions of this Part 3, including actions outside the scope or contrary to a permit validly issued, he may order such work to be stopped immediately. The stop-work order shall be issued in writing by the Mayor and served upon the owner of the property or the owner's agent or the person doing the work. It shall be unlawful for any person to continue or permit the continuation of work in or about the property after having been served with the stop-work order. The permit holder may appeal such order to the Town Council which, upon request, shall hold a hearing within 14 days pursuant to the procedures set forth in Subsection C below.
(7)Â
Revocation
of fence or wall permit.
(a)Â
The Mayor may revoke a fence or wall permit in case of any material
false statements or misrepresentations of fact in the application
or on the plans on which the permit was based or in case of violation
of any of the conditions upon which the permit was issued.
(b)Â
The Mayor may revoke a fence or wall permit where work relating to the permit has resulted in, or is likely to result in, a violation of Chapter 182, Trees.
(c)Â
The Mayor may revoke a fence or wall permit upon the revocation of
a permit issued by Montgomery County for the identical work which
is the subject of the Town permit.
(d)Â
The permit holder may appeal any such revocation to the Town Council which, upon request, shall hold a hearing within fourteen (14) days, pursuant to the procedures set forth in Subsection C below.
(e)Â
Upon revocation, the construction must be removed within thirty (30)
days, or such other time period as the Mayor may specify.
B.Â
Modification of approved plans. No person shall modify or alter any
plans or specifications after they have been submitted and a fence
or wall permit issued. Notice of intention to deviate from the approved
plans and specifications shall be given in writing to the Mayor, and
his written approval shall be obtained before such deviation or alteration
is made.
C.Â
Appeal of permit decisions.
(1)Â
Time
of and form for appeal. Any person aggrieved by a decision of the
Mayor with regard to an application for a fence or wall permit may
appeal such decision to the Town Council within thirty (30) days.
An appeal shall be in writing and shall be submitted to the Clerk-Treasurer
for presentation to the Town Council. The notice of the appeal filed
by the appellant shall state the decision of the Mayor for which the
review is sought and the manner in which the appellant is aggrieved
by the decision.
(2)Â
Hearing
before the Town Council. Within sixty (60) days, but not earlier than
ten (10) days, following the filing of the appeal, the Town Council
shall conduct a fact-finding hearing on such appeal, after giving
at least ten (10) days' notice of such hearing to the appellant (and
to the applicant if the applicant is not the appellant) and to all
owners or occupants of property which adjoins or confronts the property
on which is located the fence or wall which is the subject of the
application.
(3)Â
Decision.
The decision of the Town Council, by a majority vote of those members
present at the hearing on said appeal, shall be rendered within forty
(40) days of the date of the hearing. The decision shall be in writing
if the decision includes a denial of an application in whole or in
part or if a permit is granted over an objection from an interested
person, and shall state the Council's findings of fact and conclusions
of law.
D.Â
Judicial review. Any person who is aggrieved by a decision of the
Town Council with regard to an application for a fence or wall permit
shall have the right to petition for judicial review of the decision
of the Town Council under the provisions of Title 7, Chapter 200,
of the Maryland Rules of Procedure, as amended or replaced. In any
judicial proceeding under this section, the findings of the Town Council
as to the facts, if supported by the evidence and in the absence of
fraud, shall be conclusive, and the jurisdiction of said court shall
be confined to questions of law.
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[Ord. No. 1-91, eff. 4-29-1991; amended by Ord. No. 3-91, eff. 5-7-1991; Ord. No. 7-92, eff. 7-28-1992; Ord. No. 6-03, eff. 8-13-2003; Res. No. 5-19, 10-17-2019, eff. 11-12-2019; Res. No. 8-20, 12-7-2020, eff. 1-21-2021 (formerly Ch. 6, § 6-715, of the 1989 Code)]
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Nothing in this Part 3 shall be construed to make unlawful nonconforming
fences or walls placed or constructed prior to April 29, 1991, and
not replaced.
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[Ord. No. 1-91, eff. 4-29-1991; amended by Ord. No. 3-91, eff. 5-7-1991; Ord. No. 6-03, eff. 8-13-2003; Res. No. 5-19, 10-17-2019, eff. 11-12-2019 (formerly Ch. 6, § 6-716, of the 1989 Code)]
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