Fence permits... (I know...)

[mtlogcabin]

we received a letter from 'Neighbor B's' attorney, asking us to not issue the permit

Don't get in the middle. If you do not have a specific code/ordinance to deny the permit issue it and move on

R102.2 Other laws.

The provisions of this code shall not be deemed to nullify any provisions of local, state or federal law.

Let the attorney earn his fee.

 

[FredK]

Well since a laywer is involved the next step is talking to yours. Based on he recommends is the route to follow. As to now I don't see why you can not issue a permit.

 

[Alias]

In my ahj, fences are addressed in the Zoning Regulations, and it is a good thing I know that, because the city attorney's office is a black hole.

Same here. I send 'problem fence' questions to my boss, the planning director/director of public works. If all else fails, make them submit a site plan review to the planning department, if you have one. Let them hash it out with Joe Public and John Doe.

Sue, in snowy CA

 

[Alias]

delete duplicate post

 

[TimNY]

"Encroachment/Construction Activity. Grantor shall not undertake, authorize, permit or consent to any construction or excavation including, without limitation, digging, tunneling, or other forms of construction activity on or near the Easement which might in any fashion unearch, undermine, or damage the water lines or endanger the lateral or other support of the water lines without Grantee's prior written approval. Grantor further agrees that no structure or obstruction including, without limitation fences and rockeries shall be erected over, upon or within the Easement..."

Seems to me you need the easement to make a determination. Or maybe your municipal attorney will say it has no bearing on the permit process. Gotta ask and just wait for a response. The permit will be issued when the BO is satisfied the project conforms with "pertinent laws".

 

[Code Neophyte]

Why haven't you issued the permit yet?This is not fine wine, it won't get better with age.

Waiting for our attorney, since they played the attorney card, as FredK and several others have mentioned. I'm just trying to reason through it to compare my proposed course of action with the one he recommends.

 

[brudgers]

"Encroachment/Construction Activity. Grantor shall not undertake, authorize, permit or consent to any construction or excavation including, without limitation, digging, tunneling, or other forms of construction activity on or near the Easement which might in any fashion unearch, undermine, or damage the water lines or endanger the lateral or other support of the water lines without Grantee's prior written approval. Grantor further agrees that no structure or obstruction including, without limitation fences and rockeries shall be erected over, upon or within the Easement..."Seems to me you need the easement to make a determination. Or maybe your municipal attorney will say it has no bearing on the permit process. Gotta ask and just wait for a response. The permit will be issued when the BO is satisfied the project conforms with "pertinent laws".

The obligations of the Grantor are not a legitimate concern of the Building Department.

 

[brudgers]

Waiting for our attorney, since they played the attorney card, as FredK and several others have mentioned. I'm just trying to reason through it to compare my proposed course of action with the one he recommends.

The applicant did not play the attorney card.

A party without standing regarding the issuance of a permit did.

There's no legitimate reason to delay.

 

[TimNY]

The obligations of the Grantor are not a legitimate concern of the Building Department.

Easy to say. You base this on what? In which state? What case law?

Let's assume I state the obligations of the Grantor are a legitimate concern? Can you rebuff without an unsubstantiated blanket statement? In what state? Based on what case law?

Code Neo has asked an attorney to advise him. That is generally why municipalities hire attorneys. Issuing a permit is not a race. Due diligence is being performed. His actions are reasonable.

 

[Code Neophyte]

Tim and Brudgers:

I actually agree with both of you - if that's possible?? My thought when the "lawyer letter" came through was, "So what?" I should not perform my ministerial duty because someone who attended law school and passed a bar exam sent me a letter??

But, on the other hand, I'm not so pretentious as to think that there may be something that I'm missing when I do receive a "lawyer letter", so I forward it to my lawyer, and await my "marching orders". But my automatic reflex is not to disengage my own thought process, so I like to formulate my own thoughts, and even argue with our attorneys if I don't agree with their 'take' on the issue. I might even secretly wish that the AHJ would get challenged for something like this, to bring light to the fact that - just because a lawyer is involved and representing 'Party A' - it doesn't mean that 'Party B' does not have rights and is not in the right.

 

[brudgers]

Easy to say. You base this on what? In which state? What case law?Let's assume I state the obligations of the Grantor are a legitimate concern? Can you rebuff without an unsubstantiated blanket statement? In what state? Based on what case law?

Code Neo has asked an attorney to advise him. That is generally why municipalities hire attorneys. Issuing a permit is not a race. Due diligence is being performed. His actions are reasonable.

Which part of the building code prohibits construction in an easement?

Which part of the building code empowers the Building Official to interpret case law and act upon those interpretations?

Point to a single state or local statute which empowers the building official to make permit decisions explicitly based upon case law rather than codes, statutes and regulations.

 

[brudgers]

Tim and Brudgers:I actually agree with both of you - if that's possible?? My thought when the "lawyer letter" came through was, "So what?" I should not perform my ministerial duty because someone who attended law school and passed a bar exam sent me a letter??

But, on the other hand, I'm not so pretentious as to think that there may be something that I'm missing when I do receive a "lawyer letter", so I forward it to my lawyer, and await my "marching orders". But my automatic reflex is not to disengage my own thought process, so I like to formulate my own thoughts, and even argue with our attorneys if I don't agree with their 'take' on the issue. I might even secretly wish that the AHJ would get challenged for something like this, to bring light to the fact that - just because a lawyer is involved and representing 'Party A' - it doesn't mean that 'Party B' does not have rights and is not in the right.

I understand that you want to keep your job and are covering your ***.

However, I am curious as to how frequently you take the opinions of an applicant's neighbors into account when issuing a permit.

Your liability goes up when you do something unusual.

Following standard operating procedure even when you find the applicant distasteful or the aesthetic merits of the proposed project non-existent is the best way to protect yourself.

Or at least that's what the city attorney drilled into me during another lifetime.

 

[peach]

The attorney card can get played the other way.. you can just as easily be slapped with a writ of mandamus ordering you to issue the permit. I came from a place where a fence was allowed on the property line; if it was also an easement, it had to be a chain link or wooden fence that could be removed (by the utility company, generally) and a gate required (for the utility company or drainage crews).

 

[TimNY]

Which part of the building code prohibits construction in an easement?Which part of the building code empowers the Building Official to interpret case law and act upon those interpretations?

Point to a single state or local statute which empowers the building official to make permit decisions explicitly based upon case law rather than codes, statutes and regulations.

If only issuing permits was a question of knowing the building code. New York does not even have the sections quoted in this thread.

Case law is more valuable then statutes and regulations. It is how the Court interprets statutes and regulations. I don't know that you interpret case law; I think the point is to read the decision and see how the Court interpreted it, thus "case law".

It is not our job to read case law. It is our job, in the reasonable execution of our due diligence, to seek the council of those who are familiar with the law. You may very well be correct in that it will not matter. I am sure you are as certain of that as you are that Thomas Jefferson fathered Sally Hemmings' children.

The fact here is that we are saying "we don't know". We are saying we need the advice of council to determine if there is a local or state statute that needs to be considered.

You are issuing commands as if you are an authority in every municipality in every state.

I can't speak for neo, but I would be following the same course of action. Although I like my job, I am not worried about keeping it or covering anything. I am interested in doing my job to the best of my abilities. Sometimes I need a little help.

 

[brudgers]

I am sure you are as certain of that as you are that Thomas Jefferson fathered Sally Hemmings' children.

Go back and read what I wrote.

I didn't say anything about his fathering children.

I said Hemmings was his sex slave, literally.

And there is little debate among historians about that.

 

[Code Neophyte]

I understand that you want to keep your job and are covering your ***.However, I am curious as to how frequently you take the opinions of an applicant's neighbors into account when issuing a permit.

The answer is: Never. And if the neighbor's objections were the only thing I'd received, I wouldn't have thought twice about issuing the permit. My only concern, as I tried to explain before, is that when I receive a 'lawyer letter', I am not so presumptuous as to think that I understand the law as well as the attorney (my gut feeling is that this is just a bluff and carries no real weight, but at the same time, I want another attorney - ours - to review the letter and the circumstances and give me some guidance).

"Cover my a$$?" - That would be one way of putting it, yes.

"Keep your job" - I like to think that is always a secondary (or lower) concern, but at the same time, I would really hate to lose it over something as insignificant and non-building-code-related as a blankety-blank fence!

In short (and refer to my 'handle' on this board, as well, which suggests my relative 'newness' to this): I make a very deliberate effort to not go about my job thinking I know everything, which I would hope you would appreciate, given the general theme of many of your posts regarding code officials (with which, I many times agree, by the way). In this case, I do not intend to indefinitely delay the issuance of this permit, I simply want to verify, through expert opinion, in accordance with the following:

104.4 Inspections.

The building official shall make all of the required inspections, or the building official shall have the authority to accept reports of inspection by approved agencies or individuals. Reports of such inspections shall be in writing and be certified by a responsible officer of such approved agency or by the responsible individual. The building official is authorized to engage such expert opinion as deemed necessary to report upon unusual technical issues that arise, subject to the approval of the appointing authority.

I consider receiving an urgently-worded 'lawyer letter' to be an 'unusual technical issue' - I can't recall a similar occurrence in the recent past.

 

[Code Neophyte]

I understand that you want to keep your job and are covering your ***.However, I am curious as to how frequently you take the opinions of an applicant's neighbors into account when issuing a permit.

The answer is: Never. And if the neighbor's objections were the only thing I'd received, I wouldn't have thought twice about issuing the permit. My only concern, as I tried to explain before, is that when I receive a 'lawyer letter', I am not so presumptuous as to think that I understand the law as well as the attorney (my gut feeling is that this is just a bluff and carries no real weight, but at the same time, I want another attorney - ours - to review the letter and the circumstances and give me some guidance).

"Cover my a$$?" - That would be one way of putting it, yes.

"Keep your job" - I like to think that is always a secondary (or lower) concern, but at the same time, I would really hate to lose it over something as insignificant and non-building-code-related as a blankety-blank fence!

In short (and refer to my 'handle' on this board, as well, which suggests my relative 'newness' to this): I make a very deliberate effort to not go about my job thinking I know everything, which I would hope you would appreciate, given the general theme of many of your posts regarding code officials (with which, I many times agree, by the way). In this case, I do not intend to indefinitely delay the issuance of this permit, I simply want to verify, through expert opinion, in accordance with the following:

104.4 Inspections.

The building official shall make all of the required inspections, or the building official shall have the authority to accept reports of inspection by approved agencies or individuals. Reports of such inspections shall be in writing and be certified by a responsible officer of such approved agency or by the responsible individual. The building official is authorized to engage such expert opinion as deemed necessary to report upon unusual technical issues that arise, subject to the approval of the appointing authority.

I consider receiving an urgently-worded 'lawyer letter' to be an 'unusual technical issue' - I can't recall a similar occurrence in the recent past.

 

[peach]

Good for you Neo... as you grow in this business (and in your jurisdiction), you'll be able to figure out your limits..

Don't worry about "their" lawyers.. that's what the jurisdiction has a municipal lawyer for..

err on the side of caution (even if it's not popular)... if the city manager tells you to do something.. get it in writing from him/her..

You know what you're doing.. .don't second guess yourself too much!

 

[Code Neophyte]

Thank you, Peach - I very much appreciate your guidance.

In a way, I kind of hope I never lose the "second guess" reflex. I see how one can get too comfortable in the position and assume they know many of the answers. I hope that if I continue to do this for the next 30 years, I always stop to look up the answer, even if I think I know.

 

[TJacobs]

We amended the admin section and regulate fences and issue permits. We do not require an easement for a fence. We permit fences in easements. Good fences make good neighbors.

I agree with brudgers without all his added stuff...but I also agree that once the lawyer card is played, it's lawyer vs. lawyer. Like Spy vs. Spy.

 

[Code Neophyte]

... it's lawyer vs. lawyer. Like Spy vs. Spy.

Jake,

I like that! It seems so appropriate to think of attorneys as non-human cartoon characters!!

 

[brudgers]

The answer is: Never. And if the neighbor's objections were the only thing I'd received, I wouldn't have thought twice about issuing the permit. My only concern, as I tried to explain before, is that when I receive a 'lawyer letter', I am not so presumptuous as to think that I understand the law as well as the attorney (my gut feeling is that this is just a bluff and carries no real weight, but at the same time, I want another attorney - ours - to review the letter and the circumstances and give me some guidance). "Cover my a$$?" - That would be one way of putting it, yes.

"Keep your job" - I like to think that is always a secondary (or lower) concern, but at the same time, I would really hate to lose it over something as insignificant and non-building-code-related as a blankety-blank fence!

In short (and refer to my 'handle' on this board, as well, which suggests my relative 'newness' to this): I make a very deliberate effort to not go about my job thinking I know everything, which I would hope you would appreciate, given the general theme of many of your posts regarding code officials (with which, I many times agree, by the way). In this case, I do not intend to indefinitely delay the issuance of this permit, I simply want to verify, through expert opinion, in accordance with the following:

104.4 Inspections.

The building official shall make all of the required inspections, or the building official shall have the authority to accept reports of inspection by approved agencies or individuals. Reports of such inspections shall be in writing and be certified by a responsible officer of such approved agency or by the responsible individual. The building official is authorized to engage such expert opinion as deemed necessary to report upon unusual technical issues that arise, subject to the approval of the appointing authority.

I consider receiving an urgently-worded 'lawyer letter' to be an 'unusual technical issue' - I can't recall a similar occurrence in the recent past.

A lawyer letter is not a technical issue because it does not relate to a code issue [at least in so far as you have presented it, no building code issue has been raised].

Or to put it another way, would you hold up the permit if the neighbor had written you or come down to your office to complain?

Why are you giving the attorney special standing and deviating from standard procedure?

Suppose a person had their lawyer right a letter asking that no permits whatsoever be issued for 30 days. Would you act similarly?

 

[Code Neophyte]

Why are you giving the attorney special standing and deviating from standard procedure?Suppose a person had their lawyer right a letter asking that no permits whatsoever be issued for 30 days. Would you act similarly?

Well now I'm confused. In many of your other posts, you chastise inspectors for operating beyond their qualifications - in the case of engineering. I happen to often agree with you. But shouldn't we (inspectors) also be mindful that we do not possess the qualifications or credentials to evaluate the merits or bases of a challenge from an attorney - that perhaps another (peer) attorney should engage in such a discussion?

Again, I think I know the correct course of action - and it is exactly as you are suggesting. But likewise, I could think I've correctly performed structural calculations to confirm or refute a structural engineer's concerns.......

See what I mean? I don't see much of a distinction between the two scenarios.

 

[brudgers]

Well now I'm confused. In many of your other posts, you chastise inspectors for operating beyond their qualifications - in the case of engineering. I happen to often agree with you. But shouldn't we (inspectors) also be mindful that we do not possess the qualifications or credentials to evaluate the merits or bases of a challenge from an attorney - that perhaps another (peer) attorney should engage in such a discussion?Again, I think I know the correct course of action - and it is exactly as you are suggesting. But likewise, I could think I've correctly performed structural calculations to confirm or refute a structural engineer's concerns.......

See what I mean? I don't see much of a distinction between the two scenarios.

One can legitimately justify actions taken in order to address concerns based on engineering by citing building code sections.

There is no building code section which can legitimately justify your (in)actions based on your concerns about a letter from a third party.

Building officials are required to consider the adequacy of engineering in issuing permits.

They are not given the authority to deny permits based on the wishes of neighbors.

If one considers justice delayed is justice denied...By denying the permit, I suspect that you are opening yourself up to far more liability than is possible from issuing it.