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Board of Adjustment settles feud over three-inch strip of concrete

Thursday, April 11, 2013 by Elizabeth Pagano

The Board of Adjustment conjured up some Solomon-like wisdom Monday night, trying to bring peace to feuding neighbors by splitting concrete.


Julie Lipton was seeking variances to maintain a deck and trellis at her 4416 Sinclair Avenue home. The request was opposed by her next-door neighbor.


The board voted unanimously to approve the variances that will allow the deck and a concrete trellis to remain in place. But at the behest of neighbor Gayle Rosenthal, the board also asked that the three-inch portion of concrete that encroaches on her property be removed.


The main door of the house is on the side, and accessed via a concrete deck which, at one point, goes three inches past the property line. The portion of the concrete that is closest to the house has been covered with a wood deck, at grade, to cover the portion that is cracked.


Armbrust & Brown Attorney Richard Suttle, who was representing Lipton, said that he disagreed with the notion that the deck requires a setback variance at all, calling it “flatwork.”


“This doesn’t impair light, it doesn’t impair access. It’s not a structure,” said Suttle. “But obviously, I’m not pressing that.”


Rosenthal explained that the problems had been going on for a “few years now.”


Rosenthal said that the “first retaliatory action” didn’t come from her. She said that after getting permission from Lipton to screen a fence that extends to the back of the property line, she had the police called on her several times.


“It has become very unpleasant, and I really would like to be able to have some space and some distance,” said Rosenthal. “I had to go through code enforcement, too. I was not the first one to throw the mud. I know what it’s like. I never wish Julie any ill will. Once I managed to get the roof overhang taken back, it was out of my control and out of my hands. She wouldn’t talk to me. She wouldn’t negotiate with me. Nothing.”


Rosenthal explained that at the time Lipton purchased the property the existing concrete was already a significant encroachment into her yard.


“Rather than remediate that at the time, she added to the problem by putting a very expensive wood deck on top of the concrete,” said Rosenthal, who explained the deck is surrounded by walls of corrugated steel and plastic, making “pretty much an outdoor room.”


“It’s really a lot more than a side porch or just a deck. It really is a very heavy structure,” said Rosenthal. “She’s chosen to make this her front porch.”


The board determined the corrugated plastic and metal that lined the deck was a fence, and at an average height of six feet, did not require a variance.


Suttle explained that they had already been to Municipal Court, and were under a deferral agreement to solve the dispute, by getting a variance in order to maintain the deck in the setback. He said they were seeking a variance for the decorative trellis “as belt and suspenders.” The trellis was in place when Lipton purchased the property in 2001.


The problematic side deck was once covered with a roof that extended into the adjacent property, but that roof has been cut back. The board stipulated that gutters be added to the remaining roof to mitigate water runoff into the neighboring yard.


Suttle was amenable to the gutters, but cautiously clarified that they would not trigger another code enforcement action.


“The whole code enforcement deal is not a fun deal. She didn’t mean it, and she’s trying to get it into compliance and won’t get it out of compliance,” said Suttle.


“I am here to merely say that I would like my property line respected,” said Rosenthal. “I have made it a point to stay in compliance, and I tried to make it a point to be a very good neighbor, but here I find myself.”

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