City Says No to Fence in Easement

[citizen987]

Alabama

A neighbor, who works for the city, made a complaint to the city concerning my desire to erect a fence on my property. This complaint led to an inspector arriving the same morning and indicating that I could not fence the entire back yard because of a drainage easement. He made a mark in the ground with his boot and said I could fence to that point. Fencing beyond that point could result in the removal of the fence. Fencing to the point indicated would result in the loss of use of approximately half my property.

My wife and I later met with the City Engineer and the same inspector to discuss the issue. Again, we were told we could only fence to the point previously indicated and anything past that point would cause water to back up and flood surrounding properties. We said again we had planned to raise the fence over the drainage area. We also offered to use aluminum fencing over the drainage area. These alternatives were quickly dismissed even though the City Engineer stated that the property was not in a flood zone and agreed that the drainage area was dry 99 percent of the time.

When asked about the other fences, playground equipment, etc. already in the drainage area on adjacent properties, the City Engineer indicated that the only consistency was inconsistency. The City Engineer refused to put his decision in writing and indicated that we could move if we did not like living in our current residence.

I then wrote to the City Council and the Mayor for assistance. One councilman indicated that “…something doesn’t sound right here. As you state, fences are installed on U&D easements all the time…” I have not heard back from this councilman since his original correspondence.

The mayor left a voice message indicating that I could only fence to where the inspector stated, approximately thirty feet into the easement. I asked the Mayor for his decision in writing. While waiting for his decision in writing, I received a certified letter from Code Enforcement indicating that I was not allowed to fence in the drainage area and was threatened with fines, citation and/or the removal of the fence. I then received a letter from the Mayor also indicating that I was not allowed to fence in the drainage area. No measurement or distance was given as to how far back I could fence, however.

Please keep in mind that no fence work has been done. I stopped work from being started until this issue could be resolved. Nevertheless, the city has repeatedly stated that I would be in violation of a statute that has no bearing in this situation. In fact, a city ordinance specifically states that fences may be erected in easements.

In a separate case involving another neighborhood in the city that had experienced some drainage issues, the current mayor indicated that fences and sheds were in violation making it difficult to get machinery into the drainage area to clear it. There is nothing in the City Council minutes to indicate that the mayor or council members were going to take any action against the homeowners who were allegedly in violation.

Any ideas on what to do next?What is the name of your state?

 

[seniorjudge]

Q: Any ideas on what to do next?

A: Follow the law.

 

[citizen987]

Which law?

Which law should I follow? The one that says I can erect a fence in an easement or the one the city quotes that has no validity.

 

[nextwife]

Check with the city to see if the fence would be allowable IF you created a gate the width of the easement (it may need to be a double gate if the easement is a wide one for utility trucks) at the point in which the fence line would cross the easement, so that the easment can be accessed as needed. I have seen occassionally needed municipal/ utility easements dealt with in such a manner.

 

[Shel77]

This is very common, I am in FL and with all the storms/ hurricanes in our state as well as your state, fencing in drainage easements is in most all cases no longer allowed. As far as the letter making no remark to where you’re fencing should stop (or where you are not allowed to fence) distance wise that is because your plat and or survey will show you where your property ends and where the easement (not actually belonging to you) begins. It is for all intensive purposes the city’s land and the can deem what you may or may not do to it. The other structures that are in the easement may or may not be allowed you must take into consideration that they may have been there for quite some time and if they were in place prior to different codes being enforce the city may have chose to “grandfather them in” unless a problem arises with drainage the they will force them to tear them down as well. As well as the fact that there plats may not interfere with the drainage as much as yours the city allows some lots in our neighborhood to fence in the easement such as our lot however 10 neighbors on our street were not allowed to so. Some must install a picket fence were others are allowed board on board. You must follow the city’s requests or now what seem to be demands, and as they stated if you don’t like it either fence it YOUR property or don’t fence at all and if that doesn’t suit you move.

 

[justalayman]

In fact, a city ordinance specifically states that fences may be erected in easements

.

Well, you can gamble that the ordinace you speak of here applies to you and that your belief that the ordinace cited by the city does not apply and erect a fence . I presume a permit is required to build a fence so the city is apparently going to deny the permit. You will obviously need to defend yourself in an actual court to reach an end to this. Since there would be no permit, you will lose.

or;

you can file suit against the city requesting the court require the city to issue a permit citing the ordinance you feel is the controlling ordinance. The city will probably defend this citing their prefferred ordinance. A judge will settle it for you.

Either way you are going to end up in court so you might as well start there if you really want the fence over the easement.

 

[Proejo]

Always remember to be a contributor, even if its just $10, to the campaign fund of the mayoral and council candidates. It's always good to be able to write them and say, "as a supporter and contributor to your campaign, yaddy, yadda...." Believe me, that's the best way to be near and dear to them and to get them to see your point of view.

Learn to grease the wheels before the bearings go bad.

 

[citizen987]

More details

Thanks for the advice. Let me give you some more details. No permit is required for fences where I live. The drainage easement starts about midway in the property and runs to the back of the property. The beginning of the easement area is a straight line through all the adjacent properties, approximately ten houses.

These other homes have placed fences, sheds, playground equipment in the easement, even recently. I have been the only one targeted by the city because of the complaint lodged by my neighbor who works for and has contacts within the city government. Some, including my neighbor, have even redirected the flow by removing dirt in the base of the drainage area and bringing in fill dirt.

I have been and am willing to make adjustments to the fence to prevent water from backing up. However, according to the city's logic, I could raise the fence five feet off the ground and it would still cause water to back up.

 

[Shel77]

You say the neighbor who does some contracts for the city complained and therefore the city is not allowing you to erect a fence and yet all others in the exact same drainage easement situation have done so. This by all means can not be the entire story even if your city consisted of 2 streets and 1 stop light I don't see how it is plausible. What did the neighbor complain about???

 

[citizen987]

Strange but True

I agree that the whole situation seems odd. The neighbor that complained works for the city and has contacts within the city, including a councilman. He indicated that he was concerned about the drainage issues the fence would create.

He and his wife got the HOA involved. I explained to the HOA president what was going to be done to eliminate any drainage issues. He agreed that I had done my homework and it was acceptable.

The neighbor apparently didn't like this and rallied some other neighbors against me. One of whom yelled at me from his car and threatened legal action against me. I had not even met this man previously. When I went to talk to the neighbors who instigated this, I asked why they just didn't come to me if they had a problem. They said they hadn't talked to anyone. When confronted with the facts, they admitted that they had talked to the HOA president, other neighbors and had called the city that morning. A city inspector showed up minutes later.

Keep in mind, these neighbors already knew when we moved in that we had planned to erect a fence and that I told them how we were going to resolve any potential drainage issues.

 

[danno6925]

Lesson Learned?

I gues this is a clear illustration that people with even a minute amount of power (which it appears this neighbor has) can screw you on a pretty royal scale if you don't handle them properly.

My advice is to file a complaint with the city to have everything placed in the drainage easement removed. They need to enforce their ordinances and laws equitably. Demand satisfaction. If you can't erect a fence, demand that no one get permission.

Of course, there's an old Irish Proverb:

" 'Tis far easier to beg forgiveness than to ask permission"

 

[citizen987]

Thanks danno6925

danno6925,

Thank you for seeing the situation clearly. I am at the point where I am at risk if I erect a fence. All my neighbor has to do is call his buddies at City Hall. I believe most of the city's threats are a bluff but this particular neighbor is vindictive and petty. I don't want to spend a lot of money on a fence to have it torn down or wind up in an expensive legal battle.

I am finding out that this "city" (it's really the size of a town) has a history of protecting its own. Having just moved to the area a few months ago, I am an "outsider."

I really had not wanted to cause other people problems by reporting them. It's really not my style.

 

[demartian]

Easements and Fencing

I too have drainage easement issues with my City here in Tennessee. I am trying to have a safety grate installed on the front of a 30" inlet pipe and safety railing installed around the 5 foot ditch that goes to it on the side of my yard for the safety of the 40 plus children in the area... Apparently, even if I vow to check that these items don't back up on a daily basis, they will not allow it. The water is so fast during a storm, a bale of hay was washed through that pipe and guys from a local construction crew had to come in and clean out the pipe to clear it up.

However... I can plant whatever will grow in the area being as mother nature would do that anyway. I was thinking hollies would make a nice fence.

 

[citizen987]

What's wrong with govt?

What is wrong with these government employees? The city engineer complained that a lot of debris clogs up the culverts a few houses downstream and they have trouble keeping it clear. The reason they have trouble keeping it clear if because of sediment buildup from hundreds of acres draining through our back yard.

I guess their theory is that if they don't bother to keep it clear or come up with an adequate drainage plan, no one else is capable. I do like the holly idea. We have thought about it as well. It doesn't keep the dog from escaping though.

 

[danno6925]

Wire less dog fence

There are a number of dog fences on the market that will solve that problem. There are fences that go intothe ground an give you puppy a little zap when he's too close to the property line.

There are also wireless versions that you simply set the distance he's allowed to roam from wherever you place the transmitter, and he'll get a zap when he's approaching the outer limit of that boundary.

My brother has a great big golden lab, and he swears by the wireless version.