A controversial request by San Leandro Councilmember Victor Aguilar, Jr. to approve a fence he constructed without a permit was denied by the San Leandro Planning and Board of Zoning Commission last week, setting up the possiblility of a contentious appeal of the decision to the City Council in coming months.

The commission questioned Aguilar’s request to keep a six-foot fence he built at his home in the Floresta Gardens neighborhood of San Leandro, despite constructing it without proper approval from the city.

The seemingly mundance request, however, is sweetened by a backstory that matches Aguilar’s rise in the city’s politics.

Aguilar had used another fence constroversy as cudgel against his opponent for the city council last year who was seeking approval of his own fence modification. Aguilar made the argument even though his own already-constructed fence was in violation of code.

Aguilar’s rhetoric painting then-Councilmember Lee Thomas as wrongly using his position as an incumbent councilmember to gain approval of his fence modification contributed greatly to Aguilar’s upset victory in November 2016. The result was one of the most surprising outcomes in the entire East Bay last year.

You don’t have to follow the rules. You can just go break the rules and then you can just come before the board of zoning and get a modification after the fact.-San Leandro Planning Commissioner Mike Santos.

Similar to a previous planning commission meeting in July that rendered no decision on Aguilar’s request, the first-term councilmember reiterated his desire to maintain the fence in its current condition. He resisted possible remedies that included leaving the fence in its curent spot near the sidewalk, but cut down to four-feet, two-inches, per the city’s planning code; or another possibility, that maintained the six-foot height, but required moving the fence closer to the home.

“We live here. We’re constituents. We’re doing the right thing.” Aguilar said, when asked why he did not merely comply with the code and avoid the growing political blowback derived from the controversy.

Planning commissioners, though, expressed displeasure with the notion of an elected officials appearing to skirt the city’s rules and regulations, and then seeking to remedy the violations only after the city received an anonymous complaint against the fence.

Commissioner Tony Breslin said he feared allowing the modification might create a troubling precedent for San Leandro residents. “Personally, I don’t think it looks good when we do things after the fact,” Breslin said.

Santos Mike

Last July, Commissioner Mike Santos blasted Aguilar for attempting to undermine the trust of the community in its local government by seeking the fence modification. Santos again harangued Aguilar on Aug. 1.

Santos argued Aguilar’s fence violated at least one the four possible findings the commission should use to render a determination on the fence modification. Santos said the fence is detrimental to public health, safety, and welfare of San Leandro residents.

“We could be put into a situation where folks just go out and start putting in fences, additions, and just assuming, based on a finding that we could come to tonight, that it’s okay. That’s the way you do things,” Santos said. “You don’t have to follow the rules. You can just go break the rules and then you can just come before the board of zoning and get a modification after the fact.”

The commission, however, decided Aguilar’s fence was not compatible with the existing neighborbood aesthetic, voting, 4-1, to deny the modification request. Commissioner Dylan Boldt voted no, while Chair Rick Solis recused himself due to the proximity of his home to the applicants. Commissioner Jeff Falero was absent.

Aguilar has until Aug. 16 to decide whether to appeal the planning commission’s decision to the full City Council. It is unknown whether he will do so at this time. But an appeal could come with some politcal risks to Aguilar.

The City Council is likely to view a request by Aguilar to overturn the planning commission’s decision with great distaste, in part, to many of the ethical questions raised by commissioners last week. Namely, the appearance of favors potentially given by councilmembers to one of its colleagues.