Existing Precedents and Selective Enforcement

Two central tenets of good government is the avoidance of selective enforcement and behaving with consistency.  Our Mendham Borough government is failing on both counts. 

• The Borough says that it requires fence permits for any structures “along a property line.”  There are countless fences of all types in Mendham for which no fence permits were filed, let alone approved. 
• I have proposed a stone fence that is set 4’ back from the edge of the road on Talmage and Cherry Lane.  On Talmage Road alone, there are no fewer than 9 stone fences closer to the edge of Talmage Road than what I have proposed, yet only mine has been challenged by the Borough.  Two of these others were actually constructed at the time by then-serving Borough officials.  My lawyer submitted OPRA requests for the records of these nine properties.  The Borough has been unable to produce any permits, let alone approvals, for any of these stone fences, at least most of which (including the two by then-serving Borough officials) have been installed since the local ordinance was put in place about 2-3 decades ago, and during the time the existing Borough Engineer has been in the same position. 

So, the Borough, as a matter of practice, does not enforce the fence permit or “road opening permit” requirement consistently.  So, why now enforce it selectively with my proposed fence?  Do we allow the part-time (1 day/week) “town engineer” (who doesn’t even live in our town) to selectively enforce such code at his whim?  Why would he single my proposed fence replacement out?  What could be his motivation?  Is it possible that what he really wanted from me was a bribe to permit me to replace my fence? He didn’t ask for a bribe, but such a request is risky, so maybe he decided to just wait for me to offer one.  Perhaps, he felt that a safer strategy was to simply stand firmly in the way, and “see what type of unsolicited offers might present themselves.”  Ii don’t know.  Allowing selective enforcement, however, is a very slippery slope for any government seeking to remain both honest with ,and responsive to, those it represents.  Allowing selective enforcement invites corruption.  Moreover, the clear precedent — at least on Talmage Road (and Cherry Lane) — is that all of the masonry fences within the ROW have been subject to no enforcement actions over the years.  Why break this precedent when considering my project?  Again, what is the true motivation of this part-time Borough official and why are our elected representatives not policing this inconsistent governance more carefully on our behalf?