A four-year legal battle over a 4-foot-tall fence that's already been through two courtrooms is "something out of a Monty Python sketch," Pulaski County Circuit Judge Chris Piazza said Tuesday when the fight ended up in his courtroom.
The head of the Capitol Zoning District Commission, which regulates land use and architectural design near the Capitol and the Governor's Mansion, testified Tuesday that he's never measured the wrought-iron fixture, but he estimates it at 48 inches high because it's chest-high on his 5-foot-9-inch frame.
The commission says front-yard fences in the zoning district can't be higher than 40 inches without its permission.
"It's a bit bizarre," said Piazza, noting that the feuding parties are just 8 inches apart on the propriety of the fence's height.
The fence encloses the 142-year-old August Garland House at 1404 Scott St.
Attorney Patrick Cowan, 34, and his wife, Ida, a 32-year-old anesthesiologist, purchased the two-story, 4,638-square-foot house in February 2011 for $268,447, property records show.
The Garland House, named for its builder, sits on about half an acre at the corner of Scott Street and East Daisy L. Gatson Bates Drive, property records show.
It has twice served as the governor's mansion, is listed on the National Register of Historic Places and has its own Facebook page.
Commission Executive Director Boyd Maher told the judge that the 40-inch fence-height standard is part of an effort to preserve the area's historic image and reflects a time when fences were much shorter than they are now.
Piazza said he's inclined to rule against Cowan unless the nine-member commission agrees in September to retroactively approve the fence.
Cowan submitted a new application to the commission Monday.
Piazza said he'll put off his decision until October.
"This will give those folks time to decide how important those 8 inches are," Piazza said.
The commission has granted some exceptions to its 40-inch rule, and backyard fences are allowed to be taller. Many homeowners have installed fencing without going through the application process for the required permit for larger fences, Maher said.
He told the judge that Cowan's new application will get a fresh review by his staff.
The commission sued last year to force Cowan to either replace the fence or cut it down to an acceptable size.
The zoning district also wants him forced to pay a $1,481 award that the Arkansas Court of Appeals granted in October 2012 when the commission successfully appealed a lower court ruling that favored Cowan on the fence issue.
Cowan had sued after the commission did not grant a variance permit in March 2011. Circuit Judge Wendell Griffen sided with him.
The agency had endorsed his 4-foot fence in a 3-2 vote, but at the time, he needed all five commissioners to approve the permit.
He tried to get the Arkansas Supreme Court to take over the appeal, but the high court declined to get involved. All told, it took until February 2013 for that case to run its course.
Cowan argued Tuesday that the commission waited too long to sue him by not acting until January 2014.
Maher and his legal counsel from the Arkansas attorney general's office considered a lawsuit as early as April 2011 and could have countersued him when he filed suit in April 2011, he said.
A key claim in the commission's suit -- that it suffers "irreparable harm" from the fence -- is also groundless, Cowan argued, telling the judge that the commission's willingness to still consider allowing the fence shows that there's no harm done.
Metro on 07/29/2015