Do fences make good neighbors?

Thu, 11/04/2021 - 5:45pm
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The Zoning Board of Review has had an item floating on and off of its agenda all summer long regarding the construction of a chain link fence between two neighbors. There are two issues at play. One is the question of whether the fence is a “spite fence” or not. According to the Rhode Island General Laws, a “spite fence is a fence that exceeds six feet in height and is maliciously erected or maintained for the purpose of annoying the owners of an adjoining property.” While the fence is under six feet tall, its appearance and proximity to the neighboring house could definitely be considered annoying.
The second question is whether the fence was built with proper permitting or not, and whether the owners, Phillip and Jennifer Trahanas, were even eligible to apply for a permit, given the manner in which they demolished the former home of Bruce and Peggy Montgomery located on the property.
Additionally, there is an ongoing case in Washington County Superior Court regarding this fence that has roped in the Town of New Shoreham and several of its officials in as well.
According to documents filed by the plaintiff, Bluffhead, LLC, in the court case and with the Zoning Board, two incidents caused relations between the abutters to sour. In one instance, renters of the Bluffhead property hit golf balls onto the Trahanas property. In the other, the company hired by Bluffhead to trim trees on the property trimmed or cut trees that were actually on the Trahanas property.
In March, in response to these incursions, Bluffhead claims Mr. and Mrs. Trahanas built a “spite fence” along a “historic rock wall for no other purpose but to be offensive and to adversely affect the appearance of the historic wall and idyllic view of surrounding area.”

Bluffhead further alleges that the Tranahas family did not acquire a permit before construction of the fence, and were issued a permit after the fact. This is borne out in a letter from then-Building Inspector Tom Risom to Trahanas, attesting the same.

In his letter, Risom acknowledges that while the Rhode Island code does not require a permit for a fence shorter than six feet in height, the town’s ordinances do require permitting for fences.

Bluffhead goes on to allege that the Demolition Permit issued to Trahanas for the demolition of the Montgomery house was itself not in compliance with the Zoning Ordinances regarding Demolition Permits. Specifically, Bluffhead questions if the permit was issued in compliance with section 711. In his deposition, former Building Official Marc Tillson stated that the purpose of section 711 is to explore alternatives to demolition. The Montgomery family sold the property to the Trahanas family on December 4, 2020 for $2,7 million. The house was torn down shortly thereafter.
Tillson testified that he discussed the demolition permit with Risom, who had no authority to grant a demolition permit. As Tillson was retired by then, David Murphy issued the demolition permit. Murphy was the building official in Westerly, and was hired part-time by New Shoreham.

The appeal contends that if the Demolition Permit was not in compliance with section 711, then under the Zoning Ordinance, no building permit is allowed to be issued for two years, which won’t be up until 2022.

Bluffhead also points out that if the primary structure is demolished, an accessory structure cannot be built in the absence of a primary structure. Risom’s letter makes clear that the town considers a fence a “structure,” which was why Mr. and Mrs.Trahanas needed a building permit in the first place. Furthermore, the plaintiffs claim to have no other recourse but the court system because the town does not have a building official to enforce zoning ordinances since Tillson’s retirement.
Bluffhead has requested depositions from the two part-time building officials the town used during this period: David Murphy from Westerly, and Chuck Phelps, who works for 4Leaf, the company contracted by the town to perform building official functions. Both officials have told the plaintiffs they were only given duties of reviewing building plans and issuing permits, not enforcing zoning ordinances. Bluffhead has also requested depositions from Town Manager Maryanne Crawford, Risom, and Town Clerk Molly Fitzpatrick.
In June, the town filed a Motion to Quash and for Protective Order in the court case, asking the judge to relieve it of the deposition obligations on the grounds that the town and its officials are not parties to the case, and that compliance creates a hardship and “a substantial drain on the town officials’ time and resources at a critical time of year.” The motion cited the busy tourist season and the summer construction season, stating, “requiring the town to expend resources on a task of this limited probative value is a poor waste of
taxpayer money.”

The town’s motion also points out that under the Rhode Island General Laws, a spite fence exceeds six feet in height. The fence under consideration is shorter than six feet, and the town points out that Bluffhead acknowledges the fence was built “after, and in direct response to, two trespasses on defendants’ property.” The motion further states: “Prevention of incursions by random golf balls and woodcutters is a wholly legitimate purpose for installing a fence.”
The Zoning Board will have its chance to weigh in on the legitimacy of the fence on November 18. Until then at least, extremely low -flying golf balls and little woodcutters will be kept at bay.