Flathead County grants accommodation for non-compliant residential fence

An 8-foot fence around a home west of Kalispell that violates zoning regulations and has drawn sharp criticism from neighboring property owners will remain in place after Flathead County granted a disability accommodation for the barrier.

County commissioners on Thursday unanimously approved a conditional approval of the fence at the home of Jason and Raquela Garza on Lake Hills Lane. The Garzas requested a disability accommodation for the fence citing the need for privacy screening and improving security.

After being turned down for a rezone that would allow for the fence, the Garzas in February filed a lawsuit against the county in Flathead County District Court asking the decision be reversed for “medical reasons.”

Commissioner Randy Brodehl said he wasn’t comfortable with the decision.

“We’re caught in a spot where we are trying to maneuver between individuals in a subdivision, which we can normally do,” he said. “We’re also trying to maneuver between a lawsuit that has been filed and federal rules and regulations that are being forced upon us.”

Jason Garza submitted a letter to the county in August 2022, according to court documents, saying that he was requesting a reasonable accommodation and would be installing the fence. He said the fence would allow him to water trees as a therapeutic remedy for post traumatic stress disorder symptoms. The fence would allow him to perform the act in peace without harassment from neighbors, he said.

“Without the variance approval, I will not be able to care for myself and mental well-being properly,” he wrote.

The barrier, a mix of wooden privacy fence and chain link with green netting, surrounds the property.

The fence has become a point of contention for neighbors who say it violates the homeowners association rules for the subdivision and has created an unsafe situation with its proximity to the road.

A half dozen neighbors again on Thursday told commissioners that the fence should be removed.

Josh Boyce said the Garzas had the ability to purchase a home where a taller fence would be allowed.

“They need to take accountability for choice,” he said. “I respect that he has a disability, but they knew the laws when they bought the property. This wasn’t a cheap home — they had options to purchase another home.”

Michael Root said the decision would set a precedent for other properties that the zoning regulations don’t matter.

“There will be fences all over the valley and not three-rail fences, but 8-foot solid wall fences everywhere,” he said.

The fence doesn’t meet the zoning standards for the property, but in approving a disability accommodation commissioners said the fence can stay as long as Jason Garza owns the property.

Commissioners in January denied a request from Garza to rezone the property from R-1 residential to SAG-5 suburban agricultural. In R-1, the maximum fence height is 4 feet in the front and 6 feet on the sides and rear of the property, while SAG-5 has no maximum fence height.

The disability accommodation says the fence cannot be moved any closer to any property lines but it could be moved closer to the home, any replacement or repair must be substantially the same as the current fence and the height is limited to 8 feet. In addition, if ownership of the property changes or Jason Garza ceases to use the property as his primary residence the fence must be removed or brought into compliance with county zoning regulations.

The owner must also remove signage on the property that is not in compliance with county zoning regulations.

In the lawsuit, Garza said his request for a “reasonable accommodation” in accordance with the Fair Housing Act and Americans with Disabilities Act was denied by the commissioners’ decision to reject the zone change.

The federal Fair Housing Act protects people from discrimination based on race, color, national origin, religion, sex, familial status and disability when they are renting or buying a home, getting a mortgage, seeking housing assistance, or engaging in other housing-related activities.

The act prohibits local governments from making zoning or land use decisions that exclude or otherwise discriminate against individuals protected by fair housing law.

The status of the lawsuit in district court as of Friday morning was listed as suspended.

Features Editor Heidi Desch may be reached at 758-4421 or hdesch@dailyinterlake.com.