San Leandro official knew his own fence was illegal when he criticized council opponent’s fence

Victor Aguilar, Jr. was already eyeing a rematch for the San Leandro City Council in 2018 when incumbent councilmember Lee Thomas  got caught up in a unsubstantiated scandal that he used his influence as an elected official to receive city approval to build a 10-foot high fence at his corner house. The controversy represented an opportunity for Aguilar to redefine Thomas as an untrustworthy public servant.

Aguilar Victor

When Aguilar, pictured right, attended an appeal of Thomas’s fence modification at the city’s Board of Zoning and Adjustments in September 2017, he registered comments in opposition to Thomas’ fence. The fence was later built by Thomas within the city’s building code, but the public uproar over the modification was a main reason why Thomas suffered a surprising defeat by Aguilar in the council race last November. But now there is a plot twist.

Just as Aguilar was speaking out against Thomas’s fence modifications and using it as cudgel on social media to paint him as corrupt in the eyes of voters, it turns out Aguilar knew he had just completed a fence on his own corner property just blocks from Thomas, and without any city permits.

Last Thursday, following an anonymous complaint, Aguilar petitioned the San Leandro Planning and Board of Zoning Adjustments Commission to allow for a zoning variance that would allow him to keep his over six-foot fence intact despite not procuring the requisite building permits beforehand.

ALSO: San Leandro Fencegate: Aguilar attacks Thomas’s character in social media post

The commission, down to four members after two were absent, and another, Commission Chair Rick Solis, recused himself because he lives near the property in question, repeatedly failed to make a decision on the variance request Thursday night, therefore punting the issue to a presumably full roster of commissioners at its next meeting on Aug. 1.

Nevertheless, the seemingly mundane issue of a simple redwood fence is putting not only the planning commissioners in a politically dicey position to rule again on a councilmember’s request for a fence modification, but also the people who appoint them–San Leandro councilmembers.

Thomas Lee

“You put us in a very uncomfortable position,” San Leandro planning commissioner Mike Santos told Aguilar Thursday night. “We’re in a lose-lose here. If we allow you to have your variance, we’re going to be accused of just laying down for a politician. If we kick this up to the City Council, we put the onus on your fellow councilmembers to come to a similar Hobson’s Choice. This is very disturbing to me personally and I don’t think it sits well with the public when they look at their public officials and what they expect from them.”

Santos, who is the son of the recently deceased former San Leandro Mayor Tony Santos, repeatedly grilled Aguilar over his application and the negative perception towards elected officials that it may foster. Santos was also critical of Thomas, pictured above, during his own fence modification hearing in 2017.

“If you do something that is outside of the rules, then you have to pay the consequences,” Santos said. “And as the son of a politician who was squeaky clean and did not do a lot of stuff that he could have just because he didn’t want to been seen as nonchalant about his office, it pains me to have not one, but two politicians come before this board asking for something they shouldn’t do while they’re serving in public office. That’s my major concern here.”

Although city staff deemed Aguilar’s fence too tall for a setback only a few feet from the sidewalk, they recommended the variance request be granted. In addition, the commission could also require Aguilar keep the fence at its current position, but lower it roughly two feet, or, keep it as more than six-feet tall, but move it five feet closer to the residence. Aguilar was apprehensive to submit to either proposal, saying cemented pavers within the newly constructed backyard would be too difficult to remove.

“I feel no responsibility to concern myself with your pavers for a fence that was built without the proper procedure,” Santos shot back.

But Santos was not done with his intense grilling of Aguilar Thursday night, asking him whether his appearance before the commission in 2017 in order to speak out against Thomas’s fence was politically motivated.

“Did you use this fence as a political ax in your race against him? said Santos.

“I did not,” Aguilar responded, adding his comments before the commission focused on Thomas’s poor relationship with his neighbor, who had appealed the variance and had rallied opposition against Thomas, including a signed petition against his fence.

In his remark before the commission Thursday night, Aguilar said he believed receiving approval from his next door neighbors was all that was required to build his fence. “We had no idea what the zoning codes were,” he told the commission. “We want to be in compliance and this is the first step. We are prepared to adhere to the recommendation in any circumstance,” Aguilar added.

The commission, however, could not render a conclusive decision either way. Since a razor-thin quorum of four out of seven members was achieved, the limited strength of the commission required that any vote be unanimous this night. Four votes failed to settle the matter. With the vote locked up, the entire issue will return to the commission in August. In addition, because no decision was made on the agenda item, the city is required to re-notice the a new public hearing, including the additional cost to taxpayers for another round of public notices in the local newspapers.

Aguilar said in an interview that the controversy over his fence is sour grapes on the part of Thomas. The complaint against Aguilar was made anonymously.

“There’s over 100 illegal fences in the neighborhood and why won’t he call the neighbor across the street, or the neighbor behind him or the planning commissioner who has an illegal fence?” Aguilar said of Thomas. Aguilar declined to identify which commissioner is alleged to have an illegally built fence.

But, Aguilar admits that he built his fence without permits and was only inclined to have it conform to the city’s codes only if someone complained about it.

As Thomas was contemplating building his own fence, he sought friendly guidance from Aguilar sometime in 2017 on how to get it done, Aguilar said, in an interview. Thomas said he does not recall the conversation.

“Unless somebody complains then, you know, I’ll submit an application for a modification,” he recalls telling Thomas. “So that there, having that conversation–unless somebody complains ‘I lost the election,’ I’m going to complain,” meaning, he believes Thomas is behind the complaint.

Several councilmembers, without offering a specific opinion on the issue, have privately said they do not relish the possibility of having to weigh-in on a domestic household issue like Aguilar’s fence modification out of concern the burgeoning controversy risks taking energy away from more pressing city matters, such as housing, public safety, and the city budget. The only scenario for which this could happen would be following a formal appeal of the commission’s decision, when it occurs.