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

C

Code Neophyte

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Joined
Oct 17, 2009
Messages
271
Location
Central Missouri
Yet another example of why building departments should not be in the practice of issuing permits for fences:

If we do not, as a policy, take responsibility for verifying location of fences relative to property lines, and a property owner applies for a fence permit which might split (and render unusable) a shared driveway. The proposed fence would otherwise comply with height regulations, etc. Can a department refuse to issue a permit if there is no recorded easement for the driveway? What if 'Neighbor B' is in the process of filing a civil suit against the applicant, "Neighbor A'? Does that, in and of itself, provide a basis for denial, or would the court need to specifically issue an injunction against the issuance of the permit?

I know many of you have run into this same situation before!! Input, please??
 
Amen, neo! I had a situation just like that not long ago. There were PO'd neighbors, finger pointing, and..... well you get the idea.

Happily, we do not regulate fences. When I informed the parties of this fact, each party groaned & moaned because the beloved codes officer could not "help" them.

Yes the fence is still in place, right down the center of the formerly shared driveway.
 
The purpose of issuing permits for fences:

The permitting process facilitates the education of the property owner. They become versed in the zoning law, including applicable laws about easements, concerning fences.

The permitting process helps to establish that when ahj rules are violated, they are violated with intent.

These are important functions.

As to the circumstances at hand, if there is no easement specifically for the driveway (ingress and egress), it is not the building department's job to stop the construction of a fence. But, it may fall on the building department to require new driveways if you have provision for requiring such. (We require a hard surface drive, minimum 8" width, etc.).
 
A survey shows the easements of record. If you are handed a survey for a land-locked parcel I assume you would not issue a permit. If you are handed a survey whereon the surveyor has depicted an access/utility easement across the neighbor's property, I don't know that an easement allows you to do anything but access your property.

The detail would be in the wording of the easement. I would deny the permit and place the burden on the applicant to prove otherwise. There is a lot of legal mumbo-jumbo and certainly attorneys will be involved. When it gets to that point, refer it to your municipalities attorney.

Neighbor disputes are civil matters, and not something the building department gets involved with.

You are correct in that it is not our job to locate these things. That is what a surveyor is for.
 
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Great responses - thank you all!! I guess I'm taking an actual situation here and changing it to a hypothetical to focus in on one main issue. My real question is: If it is determined that there exists no easement, am I required to issue a permit, even though from a practical standpoint, I see it being a major issue? I seem to recall a similar previous discussion (although I haven't been able to find it), and it came back to the non-discretionary aspect of permit issuance - that the issuance of a permit is a ministerial act, and so long as fees are paid, submitted documents are in conformance with applicable laws and codes, the department has no choice but to issue the permit.
 
In my experience, local zoning makes no mention of municipal enforcement of private property agreements like restrictive covenants, easements, and rights of way.

From your description, it sounds to me like the permit should be approved, if the application has met the criteria for approval.

One of my stock responses - "The city is not involved in private boundary disputes, until they are settled."
 
It is surprising how many fences are underdesigned for wind load. We make it clear that our review is just for that issue, and not for boundary location.
 
Only if the fence is over 6 ft tall is a permit needed. Then planning needs to review first and we require engineering. I think in the entire time there have been less than a dozen fences that were over the 6 ft height and those were on commercial projects. Some of those fence design required an "L" design instead of a inverted "T" where neighbors split the line.

We don't get in the disputes as that's a civil matter and also don't use fences for measurement purposes. Too many are this or that side of the line.

Good question.
 
Code Neo: I believe you have to issue the permit if the proposed fence is legal, (If it does not violate your ahj's ordinances).

Robert Ellenberg posted in the thread entltled, "http://www.inspectpa.com/phpbb/showthread.php?3085-How-many-inspections-should-be-required-on-SFD-s-Insulation-inspection" sarted up a good conversation on fence issues.

"Mule reminded me of a district I used to build in that required a survey before you were allowed to start anything above grade (similar to his batter board check though you could pour trench footings in advance). It is a great idea because if people start the construction and find they don't comply with a set back, they ask for a variance and they are often given as governing officials are reluctant to make someone go to great expense in order to comply unless they are way off. If there are walls, fences, driveways, etc. they should also be on a required final survey before giving a CO. I had a neighbor put up a wall and encroached on my property (they were finishing their house just as I was starting mine). Though the wall was part of the permitted improvements, they had been granted a CO and the municipality basically told me, "sorry, it's between you and your neighbor as we now can't really do anything". The muncipality had permitted, inspected and issued a CO and now I had an encroachment that prevented me from moving forward with my construction until I got it resolved. They literally forced me into a dispute with my neighbor by not requiring a final survey. Later on getting a final survey with all improvements shown did become a part of getting a CO."
 
Code Neophyte said:
Yet another example of why building departments should not be in the practice of issuing permits for fences: If we do not, as a policy, take responsibility for verifying location of fences relative to property lines, and a property owner applies for a fence permit which might split (and render unusable) a shared driveway. The proposed fence would otherwise comply with height regulations, etc. Can a department refuse to issue a permit if there is no recorded easement for the driveway? What if 'Neighbor B' is in the process of filing a civil suit against the applicant, "Neighbor A'? Does that, in and of itself, provide a basis for denial, or would the court need to specifically issue an injunction against the issuance of the permit?

I know many of you have run into this same situation before!! Input, please??
Click to expand...
Based on what you have presented, there is no basis for denial.

I had a similar situation during my tenure as a planner (we reviewed fences).

Incidentally, fences are placed in easements all the time (think utilities).

Unless there is specific language in your land use ordinances, there isn't any basis for prohibiting construction within an easement.

There is no building code basis what so ever. See site plan requirements at 106.2.

Building in the easement simply means that the construction may be removed when someone exercises their easement rights.

Allowing construction in easements may be bad public policy, but prohibiting it based on the IBC is illegal.
 
So, the wording of the easement is only important inasmuch as it gives a property owner certain rights (ie to traverse for access to their properties), but not enough to know if the language of the easement permits the construction of fencing etc?

If you are going to issue a permit for one homeowner to build something on another person's property based on the language in an easement granting certain rights, shouldn't we know what the language is?

I would refer this to the municipal attorney and let him run with it. Case law will be different in different states, so exactly what should be done may differ among inspectors.
 
R105.2 Work exempt from permit.

Permits shall not be required for the following. Exemption from permit requirements of this code shall not be deemed to grant authorization for any work to be done in any manner in violation of the provisions of this code or any other laws or ordinances of this jurisdiction.

Building:

1. One-story detached accessory structures used as tool and storage sheds, playhouses and similar uses, provided the floor area does not exceed 120 square feet (11.15 m2).

2. Fences not over 6 feet (1829 mm) high.

R105.3.1 Action on application.

If the application or the construction documents do not conform to the requirements of pertinent laws, the building official shall reject such application in writing, stating the reasons therefor.

Better have your I's dotted and T's crossed on this one if you decide not to issue it.
 
mtlogcabin said:
R105.2 Work exempt from permit.Permits shall not be required for the following. Exemption from permit requirements of this code shall not be deemed to grant authorization for any work to be done in any manner in violation of the provisions of this code or any other laws or ordinances of this jurisdiction.

Building:

1. One-story detached accessory structures used as tool and storage sheds, playhouses and similar uses, provided the floor area does not exceed 120 square feet (11.15 m2).

2. Fences not over 6 feet (1829 mm) high.

R105.3.1 Action on application.

If the application or the construction documents do not conform to the requirements of pertinent laws, the building official shall reject such application in writing, stating the reasons therefor.

Better have your I's dotted and T's crossed on this one if you decide not to issue it.
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No such section in NY.

However, the section quoted states the work is exempt from a permit, thus the BO would not be entertaining any permit applications or easements in the first place and this thread would not exist. Could you tell the applicant it is exempt and you don't want to know anything about it?

Something else is requiring a permit (thus overriding the "work exempt", and triggering "pertinent laws"). What are pertinent laws.. zoning? penal? vehicle and traffic?
 
Unfortunately, we chucked all of Section 105 in our local adoption, and have our own permit requirements (and exemptions). Fences are not exempt at any height in any location (oh, how I wish they were!!!). So in my mind, this comes down - essentially - to the question of whether or not I am legally obligated to issue the permit.
 
Code Neophyte said:
Unfortunately, we chucked all of Section 105 in our local adoption, and have our own permit requirements (and exemptions). Fences are not exempt at any height in any location (oh, how I wish they were!!!). So in my mind, this comes down - essentially - to the question of whether or not I am legally obligated to issue the permit.
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I think you've phrased the question backwards.

"Are you legally obligated to deny the permit?" is the correct question.

Based on the fact that you have nothing to support denying it, the answer would be "no."
 
If you are not legally obligated to exercise due diligence in the execution of your duties, then you certainly have a moral and ethical obligation to do so.

I believe a phone call to the municipal lawyer would qualify as such. Why are we all avoiding the reasonable solution to the issue? If you think you can do it all yourself (and this is not directed at any particular individual in this thread), eventually you will find out that you are mistaken, and the question will be, "why didn't you ask somebody?"
 
You're absolutely correct, Tim. As usual with these situations, I try not to give every single detail of the situation, so as to maintain some degree of anonymity for the parties involved. So as I re-read my OP and subsequent posts, I see that it appears I'm trying to make the decision without the advice of counsel with only the limited knowledge set that I possess, which is not the case.

The thing that actually triggered my question is, we received a letter from 'Neighbor B's' attorney, asking us to not issue the permit, as there is a dispute that will ultimately be carried into court. I don't really know that we've received our municipal attorney's take yet, so maybe I'm only trying to sharpen my instinct on these things. My opinion ....is that I have a duty to issue the permit (as there is no recorded easement - and I understand the point about fences even being allowed in easements), and the lawyer letter has absolutely no bearing. Shouldn't the correct thing for 'Neighbor B's' attorney to do would be to file the suit and ask the judge to issue an injunction against the AHJ's issuance of the permit until the case is decided?
 
Tread lightly here, Neo - once the lawyers get involved, turning back is difficult.

Has the applicant mentioned anything else about the situation?

Permit applications take a reasonable time to process - I might stall for a short time, until things maybe become more clear, just to make sure that my employer's assets are covered.
 
Code Neophyte said:
You're absolutely correct, Tim. As usual with these situations, I try not to give every single detail of the situation, so as to maintain some degree of anonymity for the parties involved. So as I re-read my OP and subsequent posts, I see that it appears I'm trying to make the decision without the advice of counsel with only the limited knowledge set that I possess, which is not the case.The thing that actually triggered my question is, we received a letter from 'Neighbor B's' attorney, asking us to not issue the permit, as there is a dispute that will ultimately be carried into court. I don't really know that we've received our municipal attorney's take yet, so maybe I'm only trying to sharpen my instinct on these things. My opinion ....is that I have a duty to issue the permit (as there is no recorded easement - and I understand the point about fences even being allowed in easements), and the lawyer letter has absolutely no bearing. Shouldn't the correct thing for 'Neighbor B's' attorney to do would be to file the suit and ask the judge to issue an injunction against the AHJ's issuance of the permit until the case is decided?
Click to expand...
Why haven't you issued the permit yet?

This is not fine wine, it won't get better with age.
 
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