The fence stays: Judge rules in favor of Avondale couple
06/28/2016 12:52PM ● Published by Richard Gaw
With permission from his neighbor Ryan Carpenter, Frank Charlton leads a reporter to the back deck of Carpenter's home on Fernwood Drive in Bucktoe Manor, to introduce a white, six-foot-high protective fence that encircles three-quarters of the property where Carpenter's neighbors Keith Davis and David Ruth live with Ruth's two nephews.
For most of the year, the majority of the fence is obstructed from view by high vegetation and tall grasses that separate the two properties by way of a small stream. On the day Charlton pointed to the fence, there was little evidence to support the argument that Carpenter and a few of his neighbors have raised that refer to the fence as obtrusive.
And yet on Carpenter's back deck, the reporter began to imagine the presence of the fence in the fall and winter months, when the vegetation has vanished and there is nothing to hide the fence from plain sight, when it becomes less of a fence and more of a winding, white, and undeniable presence.
The fence -- installed as a means of helping to protect Ruth's nephews from their dangerous parents -- was against the code of the Declaration of Covenants, Restrictions and Easements for Bucktoe Manor, laws governing construction in the development, and enforced by an affiliation of neighbors called the Bucktoe Manor Architectural Control Committee (ACC). On March 9, 2015, Carpenter, along with a few of his neighbors, filed a petition, claiming that the fence was in violation of the Declaration, and needed to come down.
For the next 15 months, the Davis-Ruth fence drew opposition that dipped into the ugly waters of vandalism and homophobic undertones. Davis and Ruth, a same-sex couple, found that portions of their fence were cut down twice by the use of a hacksaw. The security system that had been installed was ripped from the ground five times. They heard homophobic obscenities yelled over their fence. Neighbors complained about the excessive barking of their dogs, and called the police on the couple several times. O June 23, 2015, New Garden Police responded to a hate crime and criminal mischief complaint. Police observed damage to the two garage doors of the Davis-Ruth home. With red paint, one door was scrawled with the words “Get Out” and the second door had been painted with a derogatory term used to describe homosexuals.
The petition was about the fence and nothing else, neighbors insisted.
Finally, on June 9, Davis and Ruth, along with Carpenter, Charlton and other Bucktoe Manor neighbors who filed the petition, met in the Court of Common Pleas before Judge Jeffrey R. Sommer. The plaintiffs repeated that they only wished to honor the laws of the Declaration of Covenants, Restrictions and Easements for Bucktoe Manor.
On June 20, Sommer, after hearing from both plaintiffs and defendants, gave his summary and ruled in favor of Davis and Ruth. In addition, he ruled in favor of the couple being allowed to install an in-the-ground pool on the property, granting them permission that had been previously been denied them by the ACC.
This case is not at all about a fence, Sommer said. "The evidentiary narrative which was developed both in direct and cross examination belied the 'theme,'" Sommer wrote in his 18-page summary.
"We were ecstatic over the judge's ruling and how he put it, from the standpoint that he could see the real issues that were going on," Davis said last week. "We were thrilled about that. It is a battle we've won, but we haven't won the war."
Nearly from the start of his ruling, Sommer targeted the ACC for not having what he called "rules, regulations or procedures."
"The original drafting of the regulation called for subsequent homeowners to create proper guidelines for various installations and construction within the development, such as instituting a hearing process for residents who wish to make structural changes on their property,” he wrote. "Mr. Davis was never afforded any opportunity. That opportunity was denied because there was no ACC, there were no rules, there was no procedure and, in short, there was no due process."
Sommer continued to hammer away at the ACC, speculating as to reasons why Davis' application for a fence drew such opposition.
"One must pause to wonder, given the destruction of the Davis property and the profanity scrawled across his home in red spray paint, coupled with the absolute lack of any other required written application for a fence, if there is not a hint of selective enforcement present," Sommer wrote.
"Judge Sommer, having said that this was more than just about a fence made us feel that he understood what we were trying to say," Ruth said. "He got that there was something else, stemming from the problems we went through, that implied that there could have been a connection (between the overwhelming objection to the fence and the subsequent homophobic vandalism)."
"We knew that he was a fair and honest judge, and we were awarded that during our testimony, when all we had to do was speak to the truth," Davis said. "The judge even commented about that during the hearing, when the other parties seemed to sound rehearsed.
"If I could give a quote back to (Judge Sommer), it would be, 'It's only about a fence,'" Charlton said. "I thought his narrative or wanting to make a play out of it was kind of disgusting. I thought the verdict was fair, even though we lost. I understood it, but I know that the underlying theme of homophobia is simply not true.
"It didn't come up in court for more than 20 seconds, and it never came up again, and for that to play such a big part in that ruling really made me question the judge."
On the issue of determining whether or not the Bucktoe Manor Declarations were enforceable, Sommer said that they were not, using the rationale of poet Robert Frost's poem "Mending Wall" as evidence, which contains the passage, "Good fences make good neighbors."
In Frost's poem,"a stone wall separates the speaker's property from his neighbor's, as the white fence separates Mr. Carpenter from Mr. Davis," Sommer wrote. "Neither man ever thought to ask his neighbor what they were walling in and walling out. After being confronted, Mr. Davis made attempts to ease the concerns of Mr. Carpenter. Mr. Davis explained the need for the fence. Certainly, the cutting of the fence, the damage to the Davis property and the...spray paint message bolster Mr. Davis' concerns."
In an effort to enlist financial support, the couple recently kicked off a GoFundMe campaign, that raised nearly $6,000 in two weeks, through 116 private donations. In a letter dated June 8, attorney L. Theodore Hoppe, Jr., legal counsel for the plaintiffs, sent a letter to Mary Ann Rossi of MacElree Harvey, Ltd., the attorney for the defendants, stating that the page contained "numerous false and defamatory allegations which have resulted in threats to my clients," and requested that the page be taken down immediately. The request was granted, and although the page remains inactive, Davis said that he has informed those who made donations that they had won their case.
Although Judge Sommer's ruling leaned in their favor, Davis and Ruth believe that their victory has been a quiet one, solid only in its legalities which permit them to keep their fence and build their pool. The vandalism and homophobic slings and arrows that the couple have endured in the past could re-emerge in light of the decision, they said.
"If anything, we feel tense because we fear a retaliation because it didn't rule in their favor," Ruth said. "We don't know what other vandalism may happen, now that they know that they're not the favored party."
"What I guess was the most disappointing was Keith and David moved in here with kids, to what is truly a great neighborhood," Charlton said. "When we first moved in here, it was like what you see on TV. Kids playing flashlight tag, July Fourth. It is a great place, and it disturbed me that a lawsuit happened here, one that had the underlying theme of homophobia."
Charlton was not certain whether or not there will be an appeal filed by the plaintiffs, but hoped that there will not be.
"It's over," Charlton said. "We are all adults. A judge made a ruling. The attorneys presented a very organized case. We all walked out of there saying, 'Whatever the ruling is, it is.'"
To contact Staff Writer Richard L. Gaw, e-mail email@example.com .