ROWLEY — A town selectman has been ordered to take down a fence after a Superior Court judge ruled its sole purpose was to harass his neighbors, though the issue at the root of the neighbors' feud will go back to the town's Zoning Board of Appeals.
Lawrence Superior Court Judge John T. Lu handed down the decision Friday in the zoning appeal case between Warehouse Road neighbors Stuart and Katherine Dalzell and Scott and Constance Hambley. Lu ordered Dalzell, who was elected selectman in 2007, to take down the unsightly, sheet-metal fence erected on the Hambleys' property line that warns trespassers to keep out in bright neon-orange paint.
The fence was erected about the same time the Hambleys filed a case against the Dalzells with Rowley's Zoning Board of Appeals, arguing that a piece of abutting property purchased by the Dalzells was not approved for use as a machine shop, even if it had been used as such in the recent past.
The Hambleys contended the originally approved use of the building was as a publishing company, which had much less impact on the surrounding residential community than a machine shop. The Dalzells argued they had purchased the site with the intent to use it as a machine shop and felt it would hamper a future sale if restrictions were placed on the property.
From there things got personal, the Hambleys said, with the Dalzells erecting the sheet-metal fence, visible only from the Hambleys' backyard. On it, they spray-painted in bright orange paint - "NO TRESSPASSING (sic) POLICE TAKE NOTICE." The Hambleys sought help from various town agencies to get the fence taken down, but none of the agencies felt they had the jurisdiction to force that issue.
One of the town's fence viewers, a little-known group that exists in most towns for the sole purpose of reviewing fences, agreed the fence was a "spite" fence, erected only to taunt the Hambleys. But there was little that could be done to enforce the opinion.
The court ordered the fence to be taken down within seven days of its order.
"The Dalzells solitary motivation for construction of the fence was to harass the Hambleys," wrote the court in its final order. "Despite there being no record of trespassing, the Dalzells semi-legibly spray painted "No Trespassing/Police Take Notice" across the fence. It's crudely made, and is nothing more than an eyesore intended to offend the Hambleys."
However, Lu ruled that the primary issue between the Hambleys and Dalzells is more complicated.
The Hambleys had asked for preliminary injunction relief to stop the Dalzells and current tenant, Polaris Sheet Metal Inc. from using the property at 54 Warehouse Lane as a machine shop, contractors yard, or for any other use not allowed under Rowley's zoning bylaws.
They were denied that by the court. In order to get an injunction, the Hambleys needed to show a "likelihood of success on the merits" of the case; that irreparable harm would result from denial of the injunction, and that harm to the Hambleys would outweigh the potential harm to the defendant.
Although the Hambleys met the criteria for the first two, they failed to prove the harm they had suffered was irreparable. "The balance of these harms is a close case," Lu wrote.
Lu said it was difficult for the court to quantify the harm caused to the Hambleys by living next to an active machine shop — vibrations, loud noises, unpleasant odors, and increased truck traffic — and it ruled these nuisances were not proven to rise to the level of "irreparable harm."
In denying the injunction, the court sent the case back to Rowley's Zoning Board of Appeals "for a full hearing on the merits," where it says the Hambleys may argue the case for Rowley's building inspector to properly enforce town zoning bylaws.
The Hambleys feel they have a good shot at prevailing at that hearing, which has yet to be scheduled, and in fact feel this court decision may mean things are turning their way.
"We are prevailing," Constance Hambley said. "This decision is so good, so clear, so supportive of us. We are really validated."
When contacted yesterday, Dalzell refused comment.
Although it refused to act to alter the current use of the property at 54 Warehouse Lane, the court issued an opinion with its 20-page ruling, which could figure in a future ruling by the ZBA. Lu wrote that "the Board, however, will likely find that the prior, protected nonconforming use was as a publishing company, not a general 'commercial"' use, and this use was abandoned because it was discontinued for two or more years. The Hambleys have shown they are likely to succeed on the merits."
Obama Scraps Birth Control Mandate
US Airmen's Killer Sentenced to Life in Germany
Navy Names Ship for Gabrielle Giffords
Raw Video: Deadly Blasts in Syria
Romney Slams President Obama at CPAC
Gingrich: Pres. Obama 'waging War on Religion'
5 Killed in Wrong-way Crash on I-10 in La.
Uzbek Man Pleads Guilty in Plot to Kill Obama
Denver's Largest-Ever Drug Bust Nets Dozens
Marines: No Punishment for Nazi-like Flag
Vets Look to Translate Military Skills Into Jobs
Raw Video: School Bus Burst Into Flames
LA School Reopens Amid Sex Abuse Scandal
$25B Settlement Reached Over Foreclosure Abuses
Pentagon: Allow Women Closer to Front Lines
LA School in Sex Abuse Scandal Reopens
Raw Video: Italy's Mount Etna Bursts Into Life
Greeks March; Angry Despite Debt Deal
Air Force Airlines: Leaders Get Polished Service
Ga Girl Fights Off Kidnapper at Walmart
