Bizarre red tape in fence dispute

Law of the Land

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Jan. 13, 2010

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Law of the Land

Tara-Nicholle Nelson
Inman News

In the case Emmerling, et al. v. Town of Richmond Zoning Board, et al., homeowners Craig and Lynn Emmerling applied for a permit to build a fence on their property. The town's zoning board of appeals determined that a site plan review by the town's planning board would be required before the homeowners would be granted a zoning permit to erect the fence. The homeowners appealed, and the trial court upheld the zoning board of appeals' finding.

On appeal, the trial court's ruling was overturned as "contrary to the 'clear wording'" of the town's zoning law. The town's zoning code requires a site plan review before a zoning permit may be issued except for single-family homes, agricultural uses and accessory uses. Fences are expressly defined elsewhere in the code as a "permitted accessory use" in the particular zoning area in which the homeowners' property is located.

Accordingly, a plain reading of the relevant code sections revealed that the homeowners' application for a permit to build a fence did not require a site plan review.

The Court of Appeals went on to reject the town's argument that a site review was necessary because the homeowners' intended use of the fence was to change the flow of traffic on their property. (Apparently, changes to traffic flow are reviewed by the town's planning board during the site plan review process.) The court found that the intention to change the flow of traffic was inherent in the zoning code's definition of a fence as " (a) structure ... (that) prohibits or inhibits unrestricted travel or view between properties or portions of properties or between the street or public right-of-way and a property, artificially erected for the purpose of assuring privacy or protection."

The court also rejected the town's argument that the homeowners were required to submit a site plan for review prior to building the fence because the fence was not included in the original site plan for the homeowner's property (circa 1998). Not only is it illogical to require a homeowner to go through site plan review for every permitted accessory use they wish to add to their property, the court held, the town's zoning code expressly exempted permitted accessory uses from site plan review.

The court declared the zoning board of appeals' reading of the zoning code "irrational, unreasonable and inconsistent with the clear language of the code," reversed the lower court's ruling and granted the homeowners' petition to annul the zoning board of appeals' determination that a site plan review was required before they could build their fence.

Tara-Nicholle Nelson is author of "The Savvy Woman's Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Ask her a real estate question online or visit her Web site, www.rethinkrealestate.com.

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