Tuesday July 24, 2012

PITTSFIELD -- The job of fence viewer is not a high-profile or well-known municipal position in Massachusetts, but a Pittsfield woman is hoping the city hires one soon to resolve her 15-month border dispute with a neighbor.

Mayor Daniel L. Bianchi says he's aggressively working to fill the position the City Council created seven months ago, in part, due to Kathy Rivers' dilemma.

"We're making a concerted effort to find someone, maybe a retired surveyor," Bianchi said. "It can make for very difficult situations not having a fence viewer."

The mayor said that once he has a viable candidate, he'll make an appointment, which is subject to the City Council's approval.

Fence viewer is one of the oldest municipal positions in Massa chusetts, and was established by the Massachusetts Bay Colony government in the 1640s. According to state law, a fence viewer is responsible for resolving disputes over the location, maintenance and repair of fences.

In December, the City Council agreed to establish a fence viewer position because of several issues in the city, particularly Rivers' dispute, according to Councilor at large Melissa Mazzeo.

In April 2011, Alan Zawistowski of 121 Lenox Ave. obtained a permit from the Pittsfield Building De partment to erect a 40-foot fence between his residence and Rivers' home at 123 Lenox Ave.

The wood fence replaced a similar one Zawistowski had taken down that Rivers and her late husband, Wayne, had owned and maintained. Rivers intended to repair her fence, but claims Zawistowski removed it without asking and put up his own fence when she wasn't home.

Rivers doesn't mind the new fence, but she claims it is 30 inches over the property line.

"He has to move the fence on the property line or inside onto his property and remove the one out front," she contended. Rivers was referring to a split-rail fence Zawistowski also installed that divides a driveway shared by the residences -- where none existed before, according to Rivers.

The Eagle was unable to contact Zawis towski, who, along with his wife, have retained a Pittsfield lawyer to represent them in the dispute. Their attorney, Kenneth Ferris, said the Zawistowskis want Rivers to produce a survey to substantiate her claim that the fence is in the wrong location. The Zawistowskis made that request in writing, through Ferris, more than two months ago.

"We understand that the Zawistowskis' driveway and fence have been in the same location and used by the Zawistowskis as well as their predecessors in interest for years," Ferris stated in a letter to Rivers dated May 11.

However, Shaun Aitken said the Rivers' fence "wasn't an issue" the nine years he resided at 121 Lenox Ave. and the shared driveway was never divided. Aitken sold the house to the Zawistowskis in 2008.

Furthermore, Rivers pointed to a marker she says shows the divide between the two properties.

Nevertheless, without a fence viewer, Rivers says she would have to hire a surveyor to determine the property line or take legal action against her neighbor -- options she says would be costly.

"The alternative to take him to court would cost me thousands of dollars," Rivers said. "If a fence viewer had been involved, this wouldn't have happened."

The council actually created two fence viewer positions in December, each with a $400 stipend for the part-time positions.

Councilor Mazzeo has strongly advocated the hiring of fence viewers.

"We basically need them for disputes," Mazzeo said. "We need to require more than someone's word where the property line is."

Rivers says a fence viewer is a vital part of enforcing the city's building codes.

"If we obtain permits for anything else, it is followed up with an inspection to make sure the work was done properly -- so why not a fence?" she said.

To reach Dick Lindsay:
rlindsay@berkshireeagle.com,
or (413) 496-6233.