The “Red Herring” of the “Right of Way” Excuse

It is true that both my existing fence and my proposed new fence appear to be within the Borough’s right of way (“ROW”) for Talmage Road and Cherry Lane.  So what?  So are most of the other stone fences that currently exist on these very same roads, along with many others throughout Mendham Borough.  Other than the obvious “selective enforcement” problem here, there is a simple practicality issue with the Borough’s position. My property actually extends to the middle of the roads it borders, as does everyone’s property in Mendham.  The right of way from the center of the road is 25” in each direction, so that’s 25’ onto my property.  Only 10’ of this 25’ is currently being used (the road is 20’ wide) and no more than 14′ may be used for the road by the Borough.  Our home, having been built before this road even existed (it used to run behind our home, prior to prior owners of our property agreeing to a “land swap” with the Borough, likely back in the 1800’s.) and WAY before the invention of the (dangerous) automobile (no one ever worried about a horse “running into their home” back then), sits only 30’ back from the edge (there is only curbing at the corner) of Cherry Lane, so were I to locate this new fence beyond the right of way, I would be reducing my front yard size by half.  Yet, this is exactly what the Borough officials have said is required for me to be able to replace my fence in stone.  It’s ridiculous.  Moreover, the Borough Engineer has indicated verbally that the Borough has no intention of ever using their additional ROW, even the extra 4″ that they could use to widen the road.  So, why are they giving me such a hard time.  Just for sport?  I’ve even told them that I understand that the fence can always be removed in the future if the Borough really needs the ROW.  (Of course, I, like ever other homeowner along these roads would fight to keep the Borough from widening these roads to any material degree, because we like the bucolic nature of Mendham, and seek to preserve it.)

 

Municipality LACKS a Compelling Reason, Our Family HAS a Compelling Reason

The Borough stated verbally that they have not envisioned use for the additional ROW in which my fence replacement is situated.  Are they lying, so to disingenuously allay the fears of residents that they plan to widen these roads?  If they are not lying, why fight it?  It’s still their ROW, even if a fence exists within it.  They clearly haven’t protected their ROW with other properties on the same roads.  Why do it with mine?  

The Borough has been unable to articulate any reason for “protecting their ROW” when I’ve asked them to do so.  Specifically:

·         I asked the Borough Engineer if the Borough plans (or even envisions) to widen Cherry or Talmage Road.  He assured me that the Borough would “never” do that, because the community would be “up in arms” about it. 

·         I asked the Borough Engineer if the Borough may in the future want to extend the sidewalk on Talmage Road as far as to Cherry Lane, and he said that the Borough would never seek to extend it that far from the center of town.

·         I asked the Borough Engineer if the Borough might want to preserve a few feet next to the road (which my planned stone fence WOULD leave them, by the way) to run underground utilities.  He said that he cannot envision this being the case. 

The Borough cannot articulate a single reason for actually needing to use that remaining 15’ of right of way in the future.   So, why fight a homeowner and taxpayer so stubbornly to prevent the peaceable use of their private property?  

Our family’s interests in protecting our private property, however, are compelling: we seek to protect our right to safely use our property and we seek to mitigate any damage to our property from future irresponsible motorists. 

The most important issue is protecting humans — in this case, our family.  We have just recently embarked on the “grandchildren” stage of life, and we had hoped to continue to enjoy this house for years to come.  We are reasonably seeking to protect our family from irresponsible motorists.  Our front yard, part of which sits at the bottom of the Hardscrabble Road hill, has had distracted or drunk motorists (often passersby who don’t even reside in Mendham) run into, or right through, our existing border structures – a 36” high wooden fence, a 7’ high dense Privet hedge and an adjoining 30” stone wall – and crushed them all.  We’ve had people run into our front yard 6 times over the past 30 years of living in the house, 3 of those incursions just in the past 3 years.  With the likely development of more homes just up Hardscrabble Road, this vehicular traffic is likely to increase further still.  One of those irresponsible drivers many year ago left the scene after running into our hedges in the early afternoon.  An alert school bus driver saw it happen and called the police, which led to the Chester police pulling him over two hours later, still drunk, and with two young children in the car.  Fewer than three years ago a young man, home visiting from college, came flying down Hardscrabble at night and, obviously distracted, failed to stop at the stop sign at the bottom of Hardscrabble Road and, instead, tried to make a left turn up Cherry Lane at high speed.  His centrifugal force sent him careening into our front yard 30-40’ up Cherry Lane from where he should have stopped, where he “took out” part of our hedge, 50’ of our wood fence and 3’ of our stone wall.  Car parts debris was scattered throughout our front yard, right up to our house.  Had a grandchild been playing in the front yard, that could have been tragic.  Are we not entitled to protect our private property from such threats?  When asked — in writing, mind you — the former Mayor and those borough Council members contacted — have all refused to respond to this question.  They hide behind their lawyer, who also fails to respond to this question. In fact, over the 20+ months that I have been communicating with the Borough about this issue, not once has any Borough official or their representatives expressed any concern whatsoever for the safety of our family.

We also want to protect and beautify our historic property.  It costs me money every time someone careens and skids into my front yard.  God forbid a large truck does the same thing.  It could knock down the home’s front wall, or worse.  This proposed stone fence will at least slow a truck like that down before it careens further into our property.  Again, our home is only 30’ back from the road.

So, I planned a stone fence for both safety and aesthetic reasons.  The large base stones will be mostly buried in the earth and the fence will be 2’ thick.  It will look beautiful.  This fence will not move easily when (it’s not “if,” but “when”) hit by some irresponsible driver.   If someone crashed into it, they will do significant damage to it, I’m sure, but they will not plow right through it, as people have in the past.  It will, God willing, stop them from killing anyone in our front yard.  My fence plans even proposed to mitigate the risk of such collisions in the first place by proposing to install reflectors (and, if feasible, red LED lights that would blink when a car approaches “dead on” coming down Hardscrabble Road at high speed) into the portion of my stone fence opposite the end of Hardscrabble Road.  It’s not that I don’t care about the irresponsible transiting motorists (thus, the reflectors plan), but, at the end of the day, I feel that I should be able to prioritize protecting my family and property from the destruction caused by drunk or distracted drivers.

The Borough’s most recent reason for opposition to this planned stone fence  –they have had several during this process but, as one fails to “hold water,” they come up with another one — is that it may be a public safety hazard to the drivers that drive off the road and come into contact with this stone fence sitting 4’ into my property from the road.  In the nearly 2 years that this bureaucratic process has been dragging on, not one person at the Borough has expressed any concern whatsoever in any of their communications about the safety of our family or that of anyone else standing on our private property off of their public road.  I am disappointed that our local government has decided to prioritize the safety of irresponsible, law-breaking drivers transiting through our town, wielding what amounts to 2,000 to 10,000 pound battering rams, over the safety of the families of the property-owning taxpayers of our own community.

In summary, our family has a compelling reason to install this stone fence and the Borough has no compelling reason to deny us the right to do so.