Borough of Pine Beach, NJ General Regulations

In Holmdel Builder's Association v. Holmdel Township, 121 N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory development fees are authorized by the Fair Housing Act of 1985, N.J.S.A. 52:27d-301 et seq, and the State Constitution, subject to the rules adopted by the New Jersey Council on Affordable Housing's (COAH).

Pursuant to P.L. 2008, c. 46 section 8 (N.J.S.A. 52:27D-329.2) and the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7), COAH is authorized to adopt and promulgate regulations necessary for the establishment, implementation, review, monitoring and enforcement of municipal affordable housing trust funds and corresponding spending plans. Municipalities that are under the jurisdiction of the Council and have an approved spending plan may retain fees collected from nonresidential development.

This section establishes standards for the collection, maintenance, and expenditure of development fees pursuant to COAH's regulations and in accordance with P.L. 2008, c. 46, Sections 8 and 32-38. Fees collected pursuant to this section shall be used for the sole purpose of providing low- and moderate-income housing. This section shall be interpreted within the framework of COAH's rules on development fees, codified at N.J.A.C. 5:97-8.

Basic Requirements.

The Borough of Pine Beach shall not impose development fees on any applicant pursuant to this section until COAH has approved the Development Fee Ordinance pursuant to N.J.A.C. 5:96-5.1.

The Borough of Pine Beach shall not spend development fees until COAH has approved a plan for spending such fees in conformance with N.J.A.C. 5:97-8.10 and N.J.A.C. 5:96-5.3.

Definitions.

AFFORDABLE HOUSING DEVELOPMENT

The following terms, as used in this section, shall have the following meanings:

A development included in the Housing Element and Fair Share Plan, and includes, but is not limited to, an inclusionary development, a municipal construction project, or a 100% affordable development.

COAH or THE COUNCIL

The New Jersey Council on Affordable Housing established under the Act which has primary jurisdiction for the administration of housing obligations in accordance with sound regional planning considerations in the State.

DEVELOPER

The legal or beneficial owner or owners of a lot or of any land proposed to be included in a proposed development, including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land.

DEVELOPMENT FEE

Money paid by a developer for the improvement of property as permitted under N.J.A.C. 5:97-8.3.

EQUALIZED ASSESSED VALUE

The assessed value of a property divided by the current average ratio of assessed to true value for the municipality in which the property is situated, as determined in accordance with sections 1, 5, and 6 of P.L. 1973, c. 123 (C. 54:1-35a through C. 54:1-35c).

GREEN BUILDING STRATEGIES

Those strategies that minimize the impact of development on the environment, and enhance health, safety and well-being of residents by producing durable, low-maintenance, resource-efficient housing while making optimum use of existing infrastructure and community services.

Residential development fees.

Imposed fees.

Within the Borough of Pine Beach zoning districts, residential developers, except for developers of the types of development specifically exempted below, shall pay a fee of 1.5% of the equalized assessed value for residential development, provided no increased density is permitted.

When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5) (known as a "d" variance) has been permitted, developers may be required to pay a development fee of 6% of the equalized assessed value for each additional unit that may be realized. However, if the zoning on a site has changed during the two-year period preceding the filing of such a variance application, the base density for the purposes of calculating the bonus development fee shall be the highest density permitted by right during the two-year period preceding the filing of the variance application.

Eligible exactions, ineligible exactions, and exemptions for residential development.

Affordable housing developments and developments where the developer has made a payment in lieu of on-site construction of affordable units shall be exempt from development fees.

Developments that have received preliminary or final site plan approval prior to the adoption of a municipal development fee ordinance shall be exempt from development fees, unless the developer seeks a substantial change in the approval. Where a site plan approval does not apply, a zoning and/or building permit shall be synonymous with preliminary or final site plan approval for this purpose. The fee percentage shall be vested on the date that the building permit is issued.

Development fees shall be imposed and collected when an existing structure undergoes a change to a more intense use, is demolished and replaced, or is expanded, if the expansion is not otherwise exempt from the development fee requirement. The development fee shall be calculated on the increase in the equalized assessed value of the improved structure. Any improvement to an existing structure of 20% or less of assessed value of an existing structure shall be exempt from development fee.

(d)

Structural alterations that do not increase gross floor area of a building or structure or increase the equalized assessed value of a property shall be exempted from paying a development fee.

(e)

Nonprofit organizations constructing residential projects which have received tax exempt status pursuant to Section 501(c)(3) of the Internal Revenue Code, providing current evidence of that status is submitted to the Municipal Clerk, together with a certification that services of the organization are provided at reduced rates to those who establish an inability to pay existing charges, shall be exempted from paying a development fee.

(f)

Federal, state, county and local governments constructing residential housing shall be exempted from paying a development fee.

(g)

Residential reconstruction projects resulting from fire, flood, or natural disaster.

Nonresidential development fees.

Imposed fees.

Within all zoning districts, nonresidential developers, except for developers of the types of development specifically exempted, shall pay a fee equal to 2.5% of the equalized assessed value of the land and improvements, for all new nonresidential construction on an unimproved lot or lots.

Nonresidential developers, except for developers of the types of development specifically exempted, shall also pay a fee equal to 2.5% of the increase in equalized assessed value resulting from any additions to existing structures to be used for nonresidential purposes.

Development fees shall be imposed and collected when an existing structure is demolished and replaced. The development fee of 2.5% shall be calculated on the difference between the equalized assessed value of the preexisting land and improvement and the equalized assessed value of the newly-improved structure, i.e. land and improvement, at the time final certificate of occupancy is issued. If the calculation required under this section results in a negative number, the nonresidential development fee shall be zero.

Eligible exactions, ineligible exactions and exemptions for nonresidential development.

The nonresidential portion of a mixed-use inclusionary or market rate development shall be subject to the 2.5% development fee, unless otherwise exempted below.

The 2.5% fee shall not apply to an increase in equalized assessed value resulting from alterations, change in use within existing footprint, reconstruction, renovations and repairs.

Nonresidential developments shall be exempt from payment of nonresidential development fees in accordance with the exemptions required pursuant to P.L. 2008, c. 46, as specified in the Form N-RDF "State of New Jersey Nonresidential Development Certification/Exemption" Form. Any exemption claimed by a developer shall be substantiated by that developer.

(d)

A developer of a nonresidential development exempted from the nonresidential development fee pursuant to P.L. 2008, c. 46 shall be subject to it at such time the basis for the exemption no longer applies, and shall make the payment of the nonresidential development fee, in that event, within three years after that event or after the issuance of the final certificate of occupancy of the nonresidential development, whichever is later.

(e)

If a property which was exempted from the collection of a nonresidential development fee thereafter ceases to be exempt from property taxation, the owner of the property shall remit the fees required pursuant to this section within 45 days of the termination of the property tax exemption. Unpaid nonresidential development fees under these circumstances may be enforceable by the Borough of Pine Beach as a lien against the real property of the owner.

Collection procedure.

Upon the granting of a preliminary, final or other applicable approval, for a development, the applicable approving authority shall direct its staff to notify the Borough's Construction Official responsible for the issuance of a building permit.

For nonresidential developments only, the developer shall also be provided with a copy of Form N-RDF "State of New Jersey Nonresidential Development Certification/Exemption" to be completed as per the instructions provided. The developer of a nonresidential development shall complete Form N-RDF as per the instructions provided. The Construction Official shall verify the information submitted by the nonresidential developer as per the instructions provided in the Form N-RDF. The Tax Assessor shall verify exemptions and prepare estimated and final assessments as per the instructions provided in Form N-RDF.

The Construction Official responsible for the issuance of a building permit shall notify the local Tax Assessor of the issuance of the first building permit for a development which is subject to a development fee.

Within 90 days of receipt of that notice, the Municipal Tax Assessor, based on the plans filed, shall provide an estimate of the equalized assessed value of the development.

(5)

The Construction Official responsible for the issuance of a final certificate of occupancy notifies the local Assessor of any and all requests for the scheduling of a final inspection on property which is subject to a development fee.

(6)

Within 10 business days of a request for the scheduling of a final inspection, the Municipal Assessor shall confirm or modify the previously estimated equalized assessed value of the improvements of the development; calculate the development fee; and thereafter notify the developer of the amount of the fee.

(7)

Should the Borough of Pine Beach fail to determine or notify the developer of the amount of the development fee within 10 business days of the request for final inspection, the developer may estimate the amount due and pay that estimated amount consistent with the dispute process set forth in subsection b of section 37 of P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.6).

(8)

50% of the development fee shall be collected at the time of issuance of the building permit. The remaining portion shall be collected at the issuance of the certificate of occupancy. The developer shall be responsible for paying the difference between the fee calculated at building permit and that determined at issuance of certificate of occupancy.

(9)

Appeal of development fees.

A developer may challenge residential development fees imposed by filing a challenge with the County Board of Taxation. Pending a review and determination by the Board, collected fees shall be placed in an interest bearing escrow account by the Borough of Pine Beach. Appeals from a determination of the Board may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.

A developer may challenge nonresidential development fees imposed by filing a challenge with the Director of the Division of Taxation. Pending a review and determination by the Director, which shall be made within 45 days of receipt of the challenge, collected fees shall be placed in an interest bearing escrow account by the Borough of Pine Beach. Appeals from a determination of the Director may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.

Affordable housing trust fund.

There is hereby created a separate, interest-bearing housing trust fund to be maintained by the Borough's Chief Financial Officer for the purpose of depositing development fees collected from residential and nonresidential developers and proceeds from the sale of units with extinguished controls.

The following additional funds shall be deposited in the Affordable Housing Trust Fund and shall at all times be identifiable by source and amount:

Payments in lieu of on-site construction of affordable units;

Developer-contributed funds to make 10% of the affordable entrances in a townhouse or other multistory attached development accessible;

Rental income from municipally-operated units;

(d)

Repayments from affordable housing program loans;

(e)

Recapture funds;

(f)

Proceeds from the sale of affordable units; and

(g)

Any other funds collected in connection with the Borough of Pine Beach's affordable housing program.

If necessary, within seven days from the opening of the trust fund account, the Borough of Pine Beach shall provide COAH with written authorization, in the form of a three-party escrow agreement between the municipality, the borough's banking institution, and COAH to permit COAH to direct the disbursement of the funds as provided for in N.J.A.C. 5:97-8.13(b).

No funds shall be expended from the affordable housing trust fund unless the expenditure conforms to a spending plan approved by COAH. All interest accrued in the housing trust fund shall only be used on eligible affordable housing activities approved by COAH.

Use of funds.

The expenditure of all funds shall conform to a spending plan approved by COAH. Funds deposited in the housing trust fund may be used for any activity approved by COAH to address the Borough of Pine Beach' fair share obligation and may be set up as a grant or revolving loan program. Such activities include, but are not limited to: preservation or purchase of housing for the purpose of maintaining or implementing affordability controls, rehabilitation, new construction of affordable housing units and related costs, accessory apartment, market to affordable, or regional housing partnership programs, conversion of existing nonresidential buildings to create new affordable units, green building strategies designed to be cost saving and in accordance with accepted national or state standards, purchase of land for affordable housing, improvement of land to be used for affordable housing, extensions or improvements of roads and infrastructure to affordable housing sites, financial assistance designed to increase affordability, administration necessary for implementation of the Housing Element and Fair Share Plan, or any other activity as permitted pursuant to N.J.A.C. 5:97-8.7 through 8.9 and specified in the approved spending plan.

Funds shall not be expended to reimburse the Borough of Pine Beach for past housing activities.

At least 30% of all development fees collected and interest earned shall be used to provide affordability assistance to low- and moderate-income households in affordable units included in the municipal Fair Share Plan. One-third of the affordability assistance portion of development fees collected shall be used to provide affordability assistance to those households earning 30% or less of median income by region.

Affordability assistance programs may include down payment assistance, security deposit assistance, low interest loans, rental assistance, assistance with homeowners' association or condominium fees and special assessments, and assistance with emergency repairs.

Affordability assistance to households earning 30% or less of median income may include buying down the cost of low or moderate-income units in the municipal Fair Share Plan to make them affordable to households earning 30% or less of median income. The use of development fees in this manner shall entitle the Borough of Pine Beach to bonus credits pursuant to N.J.A.C. 5:97-3.7.

Payments in lieu of constructing affordable units on site and funds from the sale of units with extinguished controls shall be exempt from the affordability assistance requirement.

The Borough of Pine Beach may contract with a private or public entity to administer any part of its Housing Element and Fair Share Plan, including the requirement for affordability assistance, in accordance with N.J.A.C. 5:96-18.

(5)

No more than 20% of all revenues collected from development fees, maybe expended on administration, including, but not limited to, salaries and benefits for municipal employees or consultant fees necessary to develop or implement a new construction program, a Housing Element and Fair Share Plan, and/or an affirmative marketing program. In the case of a rehabilitation program, no more than 20% of the revenues collected from development fees shall be expended for such administrative expenses. Administrative funds may be used for income qualification of households, monitoring the turnover of sale and rental units, and compliance with COAH's monitoring requirements. Legal or other fees related to litigation opposing affordable housing sites or objecting to the Council's regulations and/or action are not eligible uses of the affordable housing trust fund.

Monitoring. The Borough of Pine Beach shall complete and return to COAH all monitoring forms included in the annual monitoring report related to the collection of development fees from residential and nonresidential developers, payments in lieu of constructing affordable units on site, and funds from the sale of units with extinguished controls barrier free escrow funds, rental income, repayments from affordable housing program loans, and any other funds collected in connection with the Borough of Pine Beach' housing program, as well as to the expenditure of revenues and implementation of the plan approved by COAH. All monitoring reports shall be completed on forms designed by COAH.

Ongoing collection of fees. The ability for the Borough of Pine Beach to impose, collect and expend development fees shall expire with its substantive certification unless the Borough of Pine Beach has filed an adopted Housing Element and Fair Share Plan with COAH, has petitioned for substantive certification, and has received COAH's approval of its development fee ordinance. If the Borough of Pine Beach fails to renew its ability to impose and collect development fees prior to the expiration of substantive certification, it may be subject to forfeiture of any or all funds remaining within its municipal trust fund. Any funds so forfeited shall be deposited into the "New Jersey Affordable Housing Trust Fund" established pursuant to section 20 of P.L. 1985, c. 222 (C. 52:27D-320). The Borough of Pine Beach shall not impose a residential development fee on a development that receives preliminary or final site plan approval after the expiration of its substantive certification or judgment of compliance, nor shall the Borough of Pine Beach retroactively impose a development fee on such a development. The Borough of Pine Beach shall not expend development fees after the expiration of its substantive certification or judgment of compliance.

§ 175-22.2 Mandatory affordable housing set-aside requirement.

[Added 8-9-2017 by Ord. No. 17-07-748]

If the borough permits the construction of multifamily or single-family attached residential development that is "approvable" and "developable," as defined at N.J.A.C. 5:93-1.3, at a gross residential density of six or more units per acre, the Borough shall require that an appropriate percentage of the residential units be set-aside for low- and moderate-income households. For inclusionary projects in which the low and moderate units are to be offered for sale, the appropriate set-aside percentage is 20%; for projects in which the low and moderate-income units are to be offered for rent, the appropriate set-aside percentage is 15%.

This requirement shall apply to any multifamily or single-family attached residential development, including the residential portion of a mixed-use project, which consists of five or more new residential units, whether permitted by a zoning amendment, a variance granted by the Borough's Land Use Board, or adoption of a Redevelopment Plan or amended Redevelopment Plan in areas in need of redevelopment or rehabilitation.

For any such development for which the Borough's Land Use Ordinances or an adopted Redevelopment Plan already permitted residential development as of October 3, 2016, this requirement shall only apply if the borough permits an increase in approvable and developable gross residential density to at least twice the permitted approvable and developable gross residential density as of the effective date of this Agreement.

When calculating the set-aside requirement for a particular site, if the imposition of the required set-aside requirement results in a fractional unit, the requirement shall be rounded to the next whole number. For example, in the case of a fifteen-unit multifamily rental development, a total of three affordable units would be required (n.b., 15 units x 15% set-aside requirement = 2.25 affordable units required, which is rounded to three affordable units required).

Nothing in this section precludes the borough from imposing an affordable housing set-aside requirement on a development that is not required to have an affordable housing set-aside pursuant to this section, when such imposition is consistent with N.J.S.A. 52:27D-311(h) and other applicable law.

This affordable housing set-aside requirement shall not create any entitlement to a special dispensation or approval for a property owner or applicant for a zoning amendment, variance, or adoption of a Redevelopment Plan or amended Redevelopment Plan.

This affordable housing set-aside requirement shall not apply to any sites or specific zones identified in the Borough's Housing Element and Fair Share Plan or the settlement agreement between the Borough and Fair Share Housing Center, Inc., which was signed and dated October 3, 2016. For such sites, density and set-aside standards shall be governed by the specific standards set forth therein.

This affordable housing set-aside requirement shall not apply to developments containing four or less dwelling units.

All subdivision and site plan approvals of qualifying residential developments shall be conditioned upon compliance with the provisions of this section.

Where a developer demolishes existing dwelling units and builds new dwelling units on the same site, the provisions of this section shall apply only if the net number of dwelling units is five or more units.

If the developer of the inclusionary or multifamily dwelling unit development desires to construct less than the required number of affordable units on site, the developer may provide a payment-in-lieu-of-construction to the Borough. Such payments-in-lieu-of-construction shall be deposited into the Borough's Affordable Housing Trust Fund and shall be equal to $25,000 for each of the required affordable units that is not constructed on site. 50% of the total dollar amount of payments-in-lieu-of-construction must be paid prior to the issuance of the first building permit for the development, and the balance must be paid prior to issuance of the first certificate of occupancy for the development. The collection, administration, and use of the payments-in-lieu-of-construction collected shall be governed by N.J.A.C. 5:93-8 and the Borough's Development Fee Ordinance.

§ 175-23 Accessory buildings.

[Amended 2-12-2003 by Ord. No. 03-01-573; 12-11-2013 by Ord. No. 13-11-711; 12-9-2015 by Ord. No. 15-10-734]

An accessory building attached to a principal building shall comply in all respects with the yard requirements of this chapter for the principal building. One detached accessory building limited to 15 feet in height, measured to the peak of the roof of such accessory building, (located to the rear of the front building line of the principal building and, if located in a side yard area, conforming to the side yard requirements of the zone district in which it is located) shall be permitted. With the exception of the street sides of a corner property, an additional accessory structure of 120 square feet or less and of 12 feet or less in height shall be permitted on each lot within the setback area, but not closer than two feet from any lot line. A shed may qualify as the detached accessory building, thus two sheds on a lot is permitted in lieu of a detached accessory building and a shed.

[Amended 12-9-2015 by Ord. No. 15-10-734]

For the purpose of regulating the locations of accessory buildings on corner lots and on lots situated on and fronting two parallel streets, all portions of a corner lot or through lot which fronts on a public street shall be subject to the front yard requirements of the zone district in which said corner lot or through lot is located.

An accessory building may not be used as a dwelling or residence and may not contain any kitchen facilities. No water or sewer utilities shall be permitted above the ground floor level.

Accessory structures on undersized lots are permitted as long as the other portions of the section are adhered to, i.e. setbacks, lot coverage, height, without requiring a variance.

§ 175-24 Frontage on public street required.

Every principal building shall be built upon a lot with frontage upon a public street improved to meet the borough's land subdivision standards and accepted by the borough.

§ 175-25 Yard regulations.

All yards facing upon a public street shall be considered front yards and shall conform to the minimum front yard requirements for the zone in which they are located.

Corner lots shall provide the minimum front yard requirements for the prospective zone for both intersection streets and for both principal and accessory buildings.

Where a building lot has frontage on a street which the Master Plan or the Official Map of the borough indicates is proposed for right-of-way widening, the required front yard area shall be measured from such proposed right-of-way line.

Open fire escapes or stairways may project not more than eight feet into any side or rear yard.

No front yard shall be used for open storage of boats, vehicles or any other equipment or machinery except for permitted vehicular off-street parking or vehicular parking on driveways. All open storage areas shall be screened from clear public view.

The depth of a front yard shall be measured between the street line established by the intended ultimate right-of-way of the street(s) on which the lot fronts and the nearest point of the principal building on the lot. The depth of a front yard shall be measured perpendicular to the street line.

A side yard shall be measured parallel to the street line and the dimensions of the side yard shall be the distance between the side lot line and the nearest point of the building or structure for which the side yard is being measured to that said lot line, excluding a deck of less than 12 inches in height.[1]

[1]

Editor's Note: Amended at time of adoption of Code; see Ch. 1, General Provisions, Art. I.

A rear yard shall be measured perpendicular to the street line, and the dimension of a rear yard shall be the distance between the rear lot line and the nearest point of the building or structure for which the rear yard is being measured to the rear lot line.

§ 175-26 Obstruction of vision at intersections.

At an intersection there shall be no obstruction of vision between a height of two feet and 10 feet above the center-line grade of the street within the triangle defined by the first 25 feet of each of the intersecting street lines for streets. Such triangles shall be graded as necessary and kept clear of any building, planting or other obstruction.

§ 175-27 Preservation of natural features.

Stripping of topsoil for sale or for use on other premises, except as may be incidental to a construction project, shall be prohibited in all districts. Topsoil removed incidental to construction shall be retained and redistributed after construction over areas not occupied by buildings, walks, parking spaces, driveways or other improvements. Topsoil or excess fill material may be removed from the site upon certification by the Borough Engineer that the same is not required for landscaping or grading on the existing site.

No use, other than an agricultural use of land, otherwise permitted by this chapter shall be established upon land or fill having an elevation lower than the highest elevation of any known floodplain which affects the property, and no building shall be constructed so as to have a floor level less than one foot above the highest elevation of any adjacent known floodplain. Additionally, no structure shall be constructed closer than 100 feet to the bank of any stream as determined at normal flow unless the Borough Engineer certifies and indicates a lesser requirement is permissible based upon hydraulic and topographic considerations.

Existing natural features such as trees, brooks, drainage channels and views shall be retained. Whenever such features interfere with the proposed use of such property, a retention of the maximum amount of such features consistent with the use of the property shall be required.

§ 175-28 Sewage disposal and water supply required.

All buildings or uses shall be served by a public sanitary sewage facility and a public water supply shall be required. A statement from the appropriate agency controlling sanitary sewer and public water connections shall be required in any case where such service is not practicable. In cases where water is supplied by well and/or sanitary sewage is treated by septic tank installations, such wells or installations shall conform to the standard requirements of the borough and all governmental health boards, agencies or other authorities having jurisdiction thereof.

§ 175-29 New lots containing existing buildings or uses.

When a new lot is formed so as to include within its boundaries any part of a former lot on which there is an existing building or use, the subdivision must be carried out in such a manner as will not infringe upon any provisions of this chapter either with respect to any existing structure or use or any proposed structure or use.

§ 175-30 Irregularly shaped lots.

In the case of irregularly shaped lots, the minimum lot frontage specified in the schedule contained in the provisions for the establishment of zoning districts (See § 175-57 of this chapter) shall be measured at the front lot line.

§ 175-31 Business displays and vending machines in front yards.

Business structures or uses shall not display goods for sale purposes or coin-operated vending machines of any type in any location which would infringe upon the required front yard areas specified in this chapter.

§ 175-32 Overnight parking of commercial vehicles in residential zones. [1]

In any residential zone within the Borough of Pine Beach, no commercial vehicle weighing more than 4,000 pounds shall be parked on the street overnight.

[1]

Editor's Note: Amended at time of adoption of Code; see Ch. 1, General Provisions, Art. I.

§ 175-33 Fences and walls.

[Amended 4-8-1980 by Ord. No. 80-03-275, 9-9-1980 by Ord. No. 80-08-280]

Maximum height. Except as otherwise provided for buffer strips, the erection, alteration or reconstruction offences shall be in accordance with the following:

No closed fence is permitted in a residential front yard. No open fence in a residential front yard shall be erected, altered or reconstructed which is more than 36 inches in height and 50% open.[1]

[1]

Editor's Note: Amended at time of adoption of Code; see Ch. 1, General Provisions, Art. I.

Closed and open fences are permitted in residential rear and side yards. No closed or open fence shall be erected, altered or reconstructed in a residential rear or side yard which is more than 72 inches in height.[2]

[2]

Editor's Note: Amended at time of adoption of Code; see Ch. 1, General Provisions, Art. I.

No fence, whether closed or open, shall be erected, altered or reconstructed in excess of 72 inches in height in a residential rear or side yard containing a swimming pool exceeding three feet in depth. (For additional provisions on this subject, see §§ 155-3 and 155-9 of Ch. 155, Swimming Pools.)