This paper investigates the tension between municipal zoning regulations that limit residential fence height and homeowners' rights to privacy and property control. The study examines California zoning ordinances, constitutional privacy protections, and swimming pool safety codes, then explores how the Americans with Disabilities Act (ADA) and Fair Housing Act can override local zoning restrictions when disability-related accommodations are needed. Drawing on case law and legal analysis, the paper argues that disabled homeowners may have grounds to challenge zoning restrictions that impede necessary accessibility or safety modifications, particularly when medical rehabilitation or therapeutic use is involved.
The objective of this study is to research cases in which U.S. citizens were denied their right to privacy and safety by either a city or country within their own property line by being told what type of fence they can erect in their own yard to ensure safety and privacy, and where this decision was overturned in favor of the city. The case in question involves a realtor who assured a new homebuyer that they could erect a fence similar to other wood fences in the neighborhood.
The California Codes: Health and Safety Code Section 115920-115929 establishes swimming pool fencing enclosure requirements in residential areas. These standards require the following characteristics:
(a) Any access gates through the enclosure open away from the swimming pool and are self-closing with a self-latching device placed no lower than 60 inches above the ground; (b) A minimum height of 60 inches; (c) A maximum vertical clearance from the ground to the bottom of the enclosure of two inches; (d) Gaps or voids, if any, do not allow passage of a sphere equal to or greater than four inches in diameter; (e) An outside surface free of protrusions, cavities, or other physical characteristics that would serve as handholds or footholds that could enable a child below the age of five years to climb over (California Health and Safety Code, n.d.).
Zoning laws in municipalities vary from one location to another. In the City of Redding, California, the following laws are cited for fencing in residential areas: "Within the side- and rear-yard setbacks, fences cannot exceed a maximum height of 6 feet; and within the front yard, the maximum height is 3 feet. It should be noted that the 5- and 10-foot side yards may be on either side of the house, but one side-yard setback must be 10 feet" (City of Redding, California, n.d.).
This suggests that the construction of a fence in a residential area must be "setback" from the owner's property line a certain distance and is likely to fall within the same height guidelines as those in the municipality in question in this study. There are also regulations in the state of California that prohibit construction of fences that serve to block the sunlight or airflow within a residential district.
The right to privacy on one's property is separate and apart in the law from zoning requirements on erection of fences in the backyard of residential property. According to Standler (1997), privacy is "the expectation that confidential personal information disclosed in a private place will not be disclosed to third parties, when that disclosure would cause either embarrassment or emotional distress to a person of reasonable sensitivities". The right of privacy is restricted to individuals "who are in a place that a person would reasonably expect to be private" (Standler, 1997).
Standler (1997) reports that privacy is "an emerging right" and notes that Prosser "in both his article and the Restatement (Second) of Torts at sections 652A-652I" sets out four classifications of basic types of privacy rights. These include intrusion of an unreasonable nature upon another individual's seclusion, including the "physical invasion" of the home of an individual. Such invasion encompasses "unwanted entry, looking into windows with binoculars or camera, tapping telephone, searching wallet or purse, repeated and persistent telephone calls, obtaining financial data (e.g., bank balance) without person's consent, etc." (Standler, 1997).
The State of Florida reports that citizens can request a "one-time exception" if they wish to install fencing different from the zoning requirements. Since a disabled individual in a case like this requires the pool for the purpose of rehabilitation and treatment, it is possible that such a person could file a lawsuit against the city for discrimination on the basis of disability.
"ADA and Fair Housing Act override provisions"
This analysis demonstrates that while municipal zoning laws are valid exercises of city regulatory authority, federal disability rights law creates an important limitation on local authority when disability-based accommodations are at issue. A homeowner who needs a fence or pool configuration for medical rehabilitation may have grounds to challenge restrictive ordinances under the ADA or Fair Housing Act, provided the requested accommodation is reasonable and necessary for equal access to housing.
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