Agenda - Planning Commission - 01/05/1999

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Page 2 November 25, 1998 Z.B. Code Violation -- Owner builds fence in floodplain without getting permit Citation: Borough of Milton v. Densberger, Commonwealth Court of Pennsylvania, No. 3136 C.D. 1997 (1998) Densberger owned a house in Milton, Pa. The property was in a floodway district and was subject to the borough's floodplain ordinance. The ordinance prohibited in the floodway "fences, except two-wire fences" and "other matter which might impede, retard or change the direction of the flow of water." The ordinance required anyone who wanted to make improve- ments in the floodway to get a permit. That way, the borough could assess whether the project would create problems during floods. In 1994, Densberger removed a 4-foot-high, steel-mesh fence from his prop- erty and replaced it with a 6-foot-high wooden fence. He didn't get a permit before replacing the fence. The zoning board concluded the wooden fence violated the floodway ordi- nance. It denied Densberger a variance and ordered him to remove the fence. Densberger removed the fence. A few months later, Densberger built a chain-link fence on his property -- again without a permit. The borough ordered him to remove the fence because it violated the floodplain ordinance. Densberger appealed to the zoning board, which held a hearing. The zon- ing officer testified that although the ordinance didn't define "two-wire fence," she understood it to mean two wires running parallel to each other and attached to vertical posts at various intervals -- the kind of fence used to keep farm animals confined in a pasture. She said neither Densberger's chain-link fence nor his previous fences were tWo-wire fences. Densberger claimed his fence was a two-wire fence because it was made of poles connected by strands of wire. He also claimed the fence was allowed because it wouldn't impede the flow of water or cause debris to collect, relying on the ordinance's prohibition against "other matter which may impede, retard or change the direction of the flow of water." The board concluded Densberger's fence violated the ordinance, adopting the zoning officer's definition of two-wire fence. Densberger appealed to court. The court reversed the board's decision, finding the term "two-wire fence" was vague and ambiguous. The court said to determine the meaning of "two- wire fence," it looked to the intent of the ordinance, which was to prohibit any type of fence that would impede the flow of water during a flood. The court determined that although Densberger's previous fence didn't comply with the ordinance, his current chain-link fence did. The board appealed. DECISION: Reversed. Densberger's fence violated the ordinance. The board concluded a two-wire fence was a fence made up of two single strands of wire connected between two posts. The board's decision was sup-