We are trying to replace our existing fence. 10’ of easement area was found by new land survey and township didn’t know about this before. The old fence was already there for over 30 years. During variance, Township advised us to install fence a few inches above the ground so that water can drain into our property from their area: unused space filled with trees and plants. I do not want flood coming into our property. We have damage due to poison ivy from township property and animals like deer and small fox come into our property from their area. We are worried that the fence will not be stable enough if they are installed above the ground and animals like small fox and plants like poison ivy will still be problems. Is there anything I can do about this? Thanks in advance.
Family Law Attorney
You have asked several questions here that might require answers from both an attorney and a landscape architect or engineer, depending on how much of a nuisance this potential flooding and plant/animal incursion is, its threat of occurance, the cost/benefits of paying consultants, and whether this is a serious potential problem for you or just an annoyance and you don't like the Town telling you what to do.
As to the fence location: if it was there for 30 years in the same place, it has probably extinguished any former easement or claim of ownership that exists "on paper" through the magic of "adverse possession". There is also the legal issue of whether this Town requirement is a voluntary suggestion of a planner or building inspector or a binding legal obligation as part of the conditions for geting the variance you mentioned. If the latter, it will be much harder to avoid the requirement and you may have to go back to the ZBA to abolish it. Prepare to have justifiable reasons, and perhaps to let the engineer or LA "front for you" before the Board with your concerns.
Lastly, as to the probability of the nuisance you forsee, the severity and whether other measures may be taken to mitigate it or avoid it while still having the fence the way you like it, consult with an engineer or LA. The problem could be solveable with a swale or stone lined ditch or pipe in the right place.
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Family Law Attorney
Just to briefly add to what Mr. Lebowitz said, it would be a good idea to go to the township and to review any information they have regarding the alleged easement, as well as any zoning or planning board resolutions affecting that property and your property. The towship might be "requesting" you do certain things, but there you may have no legal obligation to actually do it. Also, as Mr. Lebowitz noted, the legal concept of "adverse possession" may come into play. To oversimplify, this is a situation where one person, because of their unbroken and public use of a parcel of land over a period of time, actually becomes the owner of that property. If you are deemed the owner of the easement, the town may not be able to enforce ANY of the easement provisions. You should consult with an attorney to find out more information.
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Land Use / Zoning Attorney
Part of this is going to depend on what you mean by "easement area." If the easement is owned by the Township, then the Township may have more control over this situation than otherwise. Generally, you cannot adversely possess or take over property owned (even in part like an easement) by a governmental entity. Also applicable are the local building/planning requirements for a fence of this type. As both other commenting attorneys have properly advized the Township has a variety of powers in this situation depending on the ownership of the easement and the building/planning requirements. You may need to retain an attorney to work through these details, or at a minimum ask the Township representative to sit down with you and explain its authority for what is being requested. Finally, even if the Township has the right to control the fencing in the manner they are, you may still have a claim against them if the water and invasive plants and animals to your property are a problem being created by the Township. However, as to this later issue you would certainly need to retain an attorney to determine if you even have a claim based on the facts of your situation.
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