For purposes of this chapter, the following
terms shall have the meanings indicated:
ABUTTING OWNERS
Owners of the real property immediately adjacent to the boundary
line, or portion thereof, of property on which a boundary fence (as
hereinafter defined) is to be installed. If a boundary fence is to
be installed along only a portion of the length of a boundary line,
only those abutters whose property immediately abuts such portion
of the boundary line shall be included in the term "abutting owners."
BOUNDARY FENCE
Any fence or fence-like structure that is, or is intended
to be, installed on or within five feet of a real property boundary
line as determined by the Board of Fence Viewers of the Town of Amesbury.
FENCE or FENCE-LIKE STRUCTURE
A hedge, structure or partition erected for the purpose of
monumenting the boundary of a piece of land, enclosing a piece of
land, dividing a piece of land into distinct portions, separating
two contiguous parcels or otherwise enclosing a field or other area
of land or an object located on land, preventing intrusions from without
the land enclosed or straying from within the land enclosed, or providing
security or protection to persons, animals, objects or structures
located on or occupying land, shielding land or the occupants thereof
from noise or view, etc., including but not limited to structures
or partitions made of wood, stone, metal or other materials, including
trees and shrubs to be planted by an owner to act as a fence as defined
herein. This definition does not apply to trees, shrubs or other vegetation
already growing at the time this chapter is passed.
OWNER
Any owner of real property located in the Town of Amesbury
upon which a fence or fence-like structure subject to this chapter
is located or is to be installed. The term "owner" shall include a
tenant of such property if a tenant is the one who is responsible
for or who will be installing a fence, except that a tenant shall,
in addition to the application procedures required under this chapter,
submit along with the application written permission from the owner
of the property for the tenant to install the fence.
Any owner of real property located in the Town
of Amesbury intending to install a boundary fence on such owner's
property shall provide written notice (the "boundary fence notice")
of such intention to all abutting owners. The boundary fence notice
shall be sent to all abutting owners by certified mail, return receipt
requested. For purposes of the boundary fence notice, the abutting
owners shall be deemed to be those persons who, according to the records
of the Town of Amesbury Tax Assessors' office ("Assessors' records"),
appear to be the abutting owners as of the day immediately prior to
the date of mailing of the boundary fence notice. The boundary fence
notice shall be sent to the abutting owners at their mailing address
as shown in the Assessors' records and shall be postmarked not less
than 30 days prior to breaking any ground for the purpose of installing
the boundary fence.
Prior to mailing the boundary fence notice, in addition to the sketch required in §
278-2 above, the owner shall mark on the ground the proposed location of the entire boundary fence by a means of temporary marking, such as biodegradable paint, or by inserting stakes and running string or tape between the stakes. Such marking of the proposed location of the boundary fence shall be maintained until a final determination of the Board of Fence Viewers is made on the application for a boundary fence permit. The boundary fence notice shall be made on a form to be promulgated by the Board of Fence Viewers and available at the City Clerk's office, which form shall require, at a minimum, the furnishing of the following information:
A. A statement that the owner is proposing to install
a fence on or within five feet of the boundary line (a "boundary fence")
between the owner's property and the abutting owner's property.
B. A copy of the portion of the Assessors' Map with the sketch of the boundary fence as submitted with the boundary fence permit application to the City Clerk under the requirements of §
278-3 above, together with:
(1) A statement that the owner, in the case of an existing
fence to be replaced, intends to replace the fence in its current
location or, in the case of a new fence or the relocation of a fence,
that the owner has also marked the location of the proposed boundary
fence on the ground; and
(2) A description of the method used to mark the location
(e.g., by stakes and string).
C. A statement that, if the abutting owner wishes to
object to the location of the boundary fence, the abutting owner must
file a written objection with the Board of Fence Viewers within 14
days from the date of the postmark of the notice, either by delivery
to the City Clerk's office at the Amesbury City Hall or by certified
mail, return receipt requested, to the Board of Fence Viewers, care
of the City Clerk's office, Amesbury City Hall, and that any such
objection must provide reasons for the objection.
D. The mailing address of the owner for receipt of a
copy of any written objection filed with the Board of Fence Viewers.
Abutting owners shall have 14 days from the
postmark of the boundary fence notice to object to the location of
the owner's boundary fence. Such objection must be in writing, must
include reasons for the objection, and must be filed with the Board
of Fence Viewers within 14 days from the date of the postmark of the
notice, either by delivery to the City Clerk's office at the Amesbury
City Hall or by certified mail, return receipt requested, to the Board
of Fence Viewers, care of the City Clerk's office, Amesbury City Hall.
A copy of the written objection shall be mailed to the owner at the
address the owner has provided in the boundary fence notice. If all
abutting owners fail to timely object in accordance with this section,
then the Board of Fence Viewers shall issue the boundary fence permit
within seven days after the fourteen-day objection period expires,
unless the Board itself has any objections, in which case the Board
shall mail a notice of its objections to the owner within such seven-day
period. The owner shall have seven days from the postmark date of
the notice of objection to file with the Board a written rebuttal
to any objections.
If any abutting owners object to the boundary
fence permit application based on a claim that the location of the
boundary line between the owner's property and the objecting abutting
owner's property is in dispute, the Board of Fence Viewers shall hold
a hearing on the objection within 14 days after the expiration of
the objection period and shall mail written notice of the date, time
and place of the hearing to the owner and the objecting abutting owner
not less than seven days prior to the hearing. Such hearing shall
be scheduled so as to be reasonably convenient for all parties concerned,
and the Board shall allow for a reasonable request for rescheduling
by the owner or the objecting abutting owner. In the notice of the
hearing, the Board may include such requests for documents, maps,
plans, surveys or other information to be provided at the hearing
as the Board may deem appropriate to its hearing on the objection.
The Board shall make such rulings based on the evidence presented
as it deems appropriate and consistent with this chapter and with
the provisions of MGL c. 49, including but not limited to the provisions
of §§ 14 and 15 of said chapter.
If objections to the owner's application are made based on reasons other than a disputed boundary line, the Board of Fence Viewers, in its discretion, may, but shall not be required to, hold a hearing as set forth in §
278-7 and, if so, shall use the same procedures and shall have the same powers. Alternatively, the Board may make such determinations as it deems appropriate based on the owner's application, any written objections filed by abutting owners, any rebuttal filed by the owner and any other relevant information before the Board, including but not limited to the results of any site view of the proposed boundary fence location undertaken by the Board.
In addition to the rights of the Board of Fence
Viewers under MGL c. 49, § 14 relative to the employment
of a surveyor by the Board, in the event that the evidence presented
to the Board is deemed by the Board to be insufficient to establish
by a preponderance of the evidence either the precise location of
the disputed boundary or that the proposed location of the boundary
fence will not cause any portion of the fence to encroach over the
property line into the objecting abutting owner's property, the Board
of Fence Viewers may deny the boundary fence permit pending receipt
by the Board of a survey plan prepared by a Massachusetts registered
land surveyor certifying the location of the boundary line and pending
a further reasonable opportunity for the objecting abutting owner
(if the survey is provided by the owner installing the fence) or the
owner installing the fence (if the survey is provided by the objecting
abutting owner) to review the survey and the surveyor's certification
and either agree or raise further written objection. The Board, in
its discretion, may provide a reasonable time for further objection
and rebuttal and may hold a further hearing as it deems appropriate.
After considering such additional evidence, if the Board is still
unable to make a determination that the proposed location of the boundary
fence will not result in any portion of the fence encroaching over
the property line, the Board may deny the permit and order that no
fence be installed in the proposed location until a final judicial
determination as to the location of the property line is made and
such judicial determination conclusively establishes that the proposed
location of the boundary fence will not result in any portion of the
fence encroaching into the abutting owner's property.
If the owner has already installed a boundary fence or is in the process of installing it and an abutting owner files a written objection with the Board of Fence Viewers, the Board shall forward a copy of the objection to the owner together with an order to cease and desist pending further order of the Board and an order to comply with the application for boundary fence permit procedures set forth above to the extent applicable in light of any abutting owner objection already having been filed. In the event that the Board determines that the boundary fence, or any portion constructed up to that point, encroaches over the property line, the Board shall issue an order to the owner to either move or remove the fence. Upon failure of the owner to comply with any such order of the Board within a reasonable time as set forth in the Board's order, the remedies provided under §§
278-11 and
278-12 of this chapter as well as MGL c. 49, §§ 14 and 15 shall apply.
The Board of Fence Viewers shall have the authority
to promulgate forms and regulations in furtherance of the powers and
authority granted by MGL c. 49 and this chapter; provided, however,
that such regulations are presented to and approved by the Municipal
Council at a regularly scheduled meeting and thereafter duly filed
with the City Clerk.