The City Council voted 3-2 on Sept. 28 to let a fence in the Allied Arts neighborhood remain standing, even though it enters the city's right-of-way.
The fence at 900 Cambridge Ave. has been under contention since January, according to homeowner Tom Wandless, when the public works department denied an encroachment permit.
He and his wife accidentally built the fence too far from the property line around their corner lot in 2004, Mr. Wandless told the council. The fence extends 6 feet into the right-of-way, and also encompasses two heritage oak trees that belong to the city.
The couple had already agreed to move the fence back to their property line if the city ever decided to put sidewalks along Cambridge and therefore needed the right-of-way space.
When asked how encroachments are handled, Deputy City Manager Kent Steffens told the council, "We do take it pretty seriously." The city does not search for right-of-way violations, he said, but becomes aware of them either through complaints, or by the owners applying for building permits — which is what happened in this case.
At least five of Mr. Wandless's neighbors sent e-mails to the council asking them to leave the fence alone.
"There's no cause to remove the fence — it doesn't block any views, make the street dangerous, or infringe on the street. It's simply not a disruption to our neighborhood," Andrea and Steve Cutright wrote. "It's too bad that this is taking up city time — it's definitely worth keeping."
Mayor Rich Cline and Councilmember Heyward Robinson were inclined to let the fence stay. For once, colleague Andy Cohen agreed with them, despite trading barbs with the mayor during the debate.
"I think the city should always take the position that this is our right-of-way, and then have a hearing to decide it, because every case is unique," said Mr. Cline.
Councilmembers John Boyle and Kelly Fergusson disagreed. Mr. Boyle commented on the necessity of protecting the city's right-of-way, noting that encroachment is one of the city's biggest issues on Santa Cruz Avenue.
"A homeowner is in essence enlarging their property," he said. "Every homeowner in Menlo Park tomorrow will be asking for an encroachment permit and promising to tear it down if we ever need it; I don't know why that's not a bigger issue for everyone."
After nearly two hours of discussion the council finally voted to grant the encroachment permit. The council also asked staff to add clauses requiring any future owners of 900 Cambridge Ave. to protect the heritage trees, and shield Menlo Park from liability should the trees injure anyone, since the owners are responsible for maintaining what is actually city property.