This blog post is about walls and fences (but probably not the ones you may be thinking about). The walls of concern to this blog post are located in the Town of Geneva, in a part of the state known as the Finger Lakes region. The three walls were constructed on lakefront property owned by Stephen Fox and consisted of a breakwall, septic system retaining wall, and a north side retaining wall.

The Town Code Enforcement Officer issued a notice of violation to Mr. Fox, finding that the walls were fences, as defined under the Town of Geneva Code, their construction violated that Code and the violation needed to be remedied. The Town Zoning Board of Appeals (ZBA) affirmed the finding of the Town Code Enforcement Officer.

Mr. Fox then commenced a hybrid action, under Article 78 of the CPLR and 42 USC § 1983, 1985 and 1987, seeking to annul the ZBA decision. The trial court dismissed the Article 78 claim and also denied Mr. Fox’s subsequent motion for leave to renew. The matter then went to the Appellate Division, Fourth Department.

In a decision, issued October 4, 2019, entitled Matter of Fox v Town of Geneva Zoning Board of Appeals, the appellate court reversed the trial court and annulled the ZBA’s determination, finding it lacked a rational basis and was not supported by substantial evidence. First, the Court reviewed the standards applicable to judicial review of an administrative decision. It noted that although local zoning boards have wide discretion and generally are entitled to great deference, that does not apply to questions of pure legal interpretation. It also noted that a determination by a local board “that ‘runs counter to the clear wording of a [code] provision’ is given little weight.”

Then, the Court honed in on the facts of the case. It looked at the definition of “fence” in the Town of Geneva Code that was applicable at the relevant time. It defined a fence as “[a]ny structure, regardless of composition, . . . that is erected or maintained for the purpose of enclosing a piece of land or dividing a piece of land into distinct portions.” The Court found this language to be clear and unambiguous, and rejected the ZBA’s interpretation, ruling that none of the three types of walls fit into this definition. The Court found that the breakwall was erected to maintain the shoreline of the property, the septic system retaining wall was constructed to secure the integrity of the proposed leach field and the north side retaining wall was constructed to provide better drainage and avoid soil erosion. None of these structures were constructed to enclose or divide a piece of land.  Thus, none were fences under the Town of Geneva Code.

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