Tent clashes with city's aesthetics ordinance Tent clashes with city's aesthetics ordinance (February 22, 2002)

While disabled resident claims need for temporary structure, city says the law is the law, with no exceptions

By Candice Shih

Disabled Mountain View resident Alex Rotharmel's campaign to keep his banned driveway canopy has evolved into a "he said, she said" argument with the city.

As of March 2001, the city has banned "any tent, temporary shelter, or collapsible structure in the front or side yard." Although Rotharmel claims to need his tent in order to safely load and unload his motorized scooter into his car without slipping on wet ground, the city remains intent on enforcing the ordinance.

Rotharmel's mobility is restricted due to a 1986 fall which damaged five discs in his spine, led to his contraction of meningitis, and contributed to the paralysis of his lower right side three-and-a-half years ago He purchased and erected the tent three years ago in order to keep rain from slicking his driveway, which makes steady footing difficult, and to shield him from the sun, which he is instructed to avoid because of medication he takes.

"I called the city to see if I needed a permit. They said there was no problem with it," said Rotharmel. At the time there wasn't a problem, but now there is.

The new ordinance banning structures such as Rotharmel's is now being enforced on all Mountain View residents. Brad Eckhardt, the city's senior planner, said "safety and aesthetics" motivated the passing of this ordinance.

These accessory structures violate the aesthetic the mandated 20-foot setbacks are meant to provide. In addition, without these structures, the openness of the street allows residents more visibility as they are trying to back out of their driveways without hitting anything or anyone.

According to city attorney Michael Martello, "The law doesn't allow for variance for this thing. If we let him put a tent up, we have to let everyone put their tents up. We're just enforcing the ordinance."

Rotharmel has appealed to the city through letters to the city council and the office of the city attorney. In a January 2002 letter sent to Martello, he described his need for the canopy and wrote, "What makes me angry is that before I bought the canopy and had it set up, I was told by the city that it was ok for me to put up the canopy and that no permit was required as long as it didn't block street traffic ... I have never put up sides or ends on the canopy. I didn't want it to be an eyesore."

The city responded in letters that reinforced its position on accessory structures, but made no mention of Rotharmel's conditional needs.

When asked about Rotharmel's canopy in particular, Martello said, "This tent doesn't keep anything dry. Rain gets in. He has a garage he can use ... It poses an eyesore and threat to people because it can blow down."

Rotharmel claims that his garage is too short for his long car and too narrow for him to get in and out of it.

According to Mark Kelman, who teaches disability law at Stanford Law School, Rotharmel could make a claim under the Americans with Disabilities Act if his tent is shown to be crucial to his mobility.

Assuming that Rotharmel's claim is valid, Kelman said, "The ban on canopies is equivalent to aesthetically pleasing ditches that wheelchairs can't get over." He suggests that Rotharmel contact a disability rights advocate who could draft a letter to the city.

Rotharmel expects to take down his canopy by the April 1 deadline since he believes, "I don't have money for an attorney. I think it's probably moot. They got their minds made up at the city."