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Editorials
George R. Grasser of Grasser & Associates Real Estate Consulting and Development / Traditional Neighborhood Development Zoning, wrote a letter to Buffalo News reporter Irene Ligouri commenting on the story she wrote on 9-23-08, titled, “Dispute over fence divides neighbors in Lancaster subdivision.”
Ligouri wrote what transpired at the Town Board meeting this writer attended. Grasser’s letter was not meant to chastise Ligouri, rather to shed light as to why this issue should never have occurred.
Buffalo News article (9-23-08)
The following are excerpts from the article written by Ligouri:
A group of Whispering Pines subdivision residents are up in arms over a neighbor’s new stockade fence. Having either children or grandchildren they declared it is unsafe because the fence blocks some neighborhood views of a 15-foot-deep retention pond with steep, slippery banks that never completely freezes in winter.
The fence owner, Michael Winiewicz, says that the Town of Lancaster approved the permit to build the 6-foot stockade fence encircling his backyard and that he and his wife are entitled to their privacy.
“If something should happen to a child in that pond, I am liable,” said Linda Brombos, who along with her husband, John, and more than a dozen other neighbors paid a recent visit to the Town Board, seeking help to get the fence moved, removed or made less opaque.
Winiewicz, whose property also includes a section of the pond, disagrees that he has created a safety problem. “Before I bought this property, I always intended to put up a fence,” he said. “I even asked the sales agent if there would be any problems or restrictions and was told, ‘You can do as you please.’ ”
Winiewicz said he worked closely with town officials prior to installing his fence to make certain that it met all municipal codes. At their request, he said, he also included two custom 10- foot-wide gates to allow town access to a drainage easement.
Fifteen neighbors have hired Buffalo attorney Kevin A. Ricotta to represent them in the fence dispute.
Ricotta said every Whispering Pines resident whose property rings the pond — and in some cases includes portions of it — is legally responsible for the safety of anyone who might tumble into it.
The Town Code states that the Town Board can revoke a permit for the installation of a fence if the board determines that the fence “as proposed to be installed would or could pose a threat to the public health,” Riccota said.
With the installation of the stockade fence, 14 potential pairs of eyes that could be trained on the pond have now been narrowed to eight, and some of those neighbors are rarely home, John Brombos said.
Brombos said he is puzzled about why the liability and responsibility scenario with the pond should be any different from what it would be for a pool owner. If someone owns a pool, he said, they don’t build a fence that doesn’t include the pool.
Town Supervisor Robert H. Giza said he spent about an hour visiting the pond last week and talking with neighbors about the fence. He has also asked Town Attorney John Dudziak for a legal opinion.
“I don’t like the looks of the fence,” Giza said. “I think it’s kind of ruined the park-like setting there for the neighbors, but I don’t think it’s a safety issue. I can’t say it’s more dangerous.”
Grasser correspondence
Grasser copied Town of Lancaster Supervisor Robert Giza and that is how this letter became public.
In his letter, Grasser tells Ligouri that he read her column with dismay and that the issue should have never occurred as the problem could have been avoided. “I speak from a position of experience in setting up legal documentation for subdivisions for more than 30 years,” states Grasser.
Grasser goes on to make the following points:
1. The developer should have included a restrictive covenant precluding fences or fences of a certain height behind the homes.
2. The developer should have placed ownership of the pond in a homeowners association so that the homeowners would not have a liability concern. By having title in the homeowners association the incorporated homeowners association would insulate the homeowners from liability and the homeowners association could obtain liability insurance and spread the cost of such insurance among all the homeowners.
3. The Town should have required that the pond be placed under the ownership of homeowners association. Because the homeowners association would, by recorded covenants, have an affirmative obligation to maintain the pond – and lien rights against the homes of individual homeowner members for the payments of homeowners association assessments to fund the maintenance and liability insurance, the Town and the homeowners would have solid protection that the integrity of the pond would be preserved.
The homeowners association would also be obligated to enforce the restricted covenants and the legal documents creating homeowners associations often require the violator of any restrictive covenant to pay the cost of enforcement.
The Town could have also insisted that the developer impose a restrictive covenant that no fence could be constructed or that any fence constructed be limited in height and location.
4. It appears to me that either the developer did not want to spend the money to create the homeowners association or to have restrictive covenants prepared and recorded. Another possible reason could be that the lot size requirements of the Town’s zoning ordinance required the developer to include lands in the pond in order to meet the minimum lot size required – but this would not excuse the failure to impose a restrictive covenant or to create the homeowners association.
This problem could have been avoided with more oversight. That is why more involvement of municipalities is warranted in these types of situations.
Comments
This is but one example of development that has taken place in town that has had a significant adverse impact on homeowners because of the free reign given to developers in the past and to this day because the attitude taken has been, ‘if it’s okay with the regulatory agencies it’s okay with us,” or, “as long as there is no public outcry or controversy.”
The town no longer wants to accept storm water detention or retention ponds from developers because of liability reasons. Developers don’t want to keep them because of pond liability and maintenance fees and property taxes, so they pass those costs over to homeowners by creating homeowner associations.
At that particular Town Board meeting a few residents made it a point to declare they owned part of the pond. They should be asked, “Do you?” or “are you sure you want to with the liability that comes along with the ownership, or the maintenance fees to preserve the quality of the pond?”
Next: Michael Anthony conservation easement folly
© Copyright 2008 by Speakupwny.com
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