Garage owner fights $18,300 fence fine

By Janet Hefler - August 2, 2007

The saying goes that good fences make good neighbors. Building them, however, may prove costly, as Allan "Buddy" de Bettencourt recently found out, when the Oak Bluffs building inspector fined him $18,300 for failing to erect a fence as directed by the town.

In a citation, dated July 2 and delivered to Mr. deBettencourt, the owner of Buddy's Auto and Truck Repairs on Worcester Avenue, Oak Bluffs building inspector Jerry Wiener imposed a fine of $300 per day for failing to replace a fence on his property by a July 1 deadline.

Mr. Wiener made the fine retroactive to a previous deadline of May 1. That brought the total to $18,300.

Mr. deBettencourt and his attorney, Daniel Larkosh, argue that the fine is excessive. In an appeal of the fine filed in Edgartown District Court, Mr. deBettencourt claimed that the Oak Bluffs selectmen failed to specify the terms for compliance and did not properly communicate the deadline for completing the fence.

A hearing was set for Monday morning before a district court clerk magistrate brought from New Bedford. But, in a letter faxed and received only 90 minutes before the scheduled hearing, Mr. Wiener requested a postponement.

"The essence of our objection is that the deBettencourts were not put on fair notice about the fine, and that in fact, they complied with what they were asked to do prior to the deadline," Mr. Larkosh said while waiting in the courthouse Monday. "The whole process was unfair and the fine is unfair."

Mr. deBettencourt has operated his vehicle repair business and inspection station in the residential Worcester Avenue neighborhood under a special permit from the town since 1976. He recalled that when he first opened his business in that location, he had no neighbors. Under the special permit's terms, he is required to screen his business from abutting neighbors with a fence.

Mr. deBettencourt said Mr. Wiener spoke to him about replacing the fence, which had fallen down, after receiving complaints from neighbors, including his brother and sister-in-law who live next door.

"Mr. Wiener asked me in January if I would put the fence back up that I used to have, and I said yes," said Mr. deBettencourt. At Mr. Wiener's suggestion, he followed up by sending a letter to the Oak Bluffs selectmen, dated Feb. 2, stating he intended to replace the fence as soon as the weather broke and he was able to purchase the materials from H. N. Hinckley and Sons Lumber.

Mr. deBettencourt said his efforts were delayed because some of the materials were unavailable and had to be ordered. On May 15, he received a letter from Mr. Wiener stating that the Oak Bluffs selectmen had issued a deadline of May 1 for him to re-erect his perimeter fence as required by his special permit, and that he would be fined per diem if he did not comply immediately.

In second letter, dated June 22, Mr. Wiener wrote to Mr. deBettencourt that the Oak Bluffs selectmen had voted at a recent meeting to set a deadline date of July 1 for completing his fence and that he would be fined $300 per day retroactive to May 1, if he did not comply.

Mr. Larkosh said neither letter specified the length of the fence required to be replaced. According to Mr. Larkosh, the June 22 letter also was the first notice Mr. deBettencourt received specifying the fine amount per day and the retroactive penalty date.

"When we put the first post for the fence up in May, Mr. Wiener stopped by at least once a week, and told us to take our time," said Joseph deBettencourt, Buddy's son, who said he and his dad worked on the fence whenever possible, between work at the repair shop and their volunteer duties with the Oak Bluffs Fire Department.

Mr. deBettencourt said he and Joseph completed replacing the original 96-foot fence by the end of June, in time to comply with the July 1 deadline.

In addition to replacing the original fence, Mr. deBettencourt said he decided to voluntarily add a new 16-foot section at each end to provide more screening for the neighbors. However, he added, only one new section was up by the July 1 deadline because he needed to remove a couple of small dying trees and shrubs before erecting the final section.

On the morning of July 2, Mr. Wiener brought his car to Mr. deBettencourt's shop for a new inspection sticker. The subject of the fence was not discussed, Mr. deBettencourt said, and then at 2 pm Mr. Wiener returned to present him with a notice of violation, listing a fine of $18,300. Mr. deBettencourt said the last section of fence was up by the end of the day.

Mr. Larkosh said that the length of the fence to be replaced was never specified. "Our position is that he finished the fence that was there, plus two sections, so it was longer than the old fence by June," he said.

Clerk magistrate Liza Williamson set the Monday hearing at the Edgartown District Court at the Dukes County Courthouse. Mr. deBettencourt closed his auto repair business that morning to attend the hearing, accompanied by his son Joseph, wife JoAnn, and Mr. Larkosh.

Given that those involved knew one another, Ms. Williamson recused herself and arranged to bring in assistant clerk Thomas W. Alfonse of the New Bedford District Court to hear Mr. deBettencourt's appeal.

However, at 8:30 am Monday, Mr. Wiener's office faxed a letter from him to Ms. Williamson requesting a postponement of the hearing, because Oak Bluffs town counsel was unavailable to represent the town until Aug. 24. By that time, hearing officer Alfonse had already arrived. Ms. Williamson continued the hearing to 10 am on Aug. 27.

Attorney Larkosh said that he would be requesting attorney's fees and reimbursement for lost income for the time the deBettencourts had to close their business down in order to appear in court.

In a phone call Monday afternoon, Kerry Scott, chairman of the Oak Bluffs selectmen, refused to answer a reporter's questions about why the selectmen directed Mr. Wiener to fine Mr. deBettencourt and set specific deadlines for noncompliance.

Ms. Scott said she would not speak to any reporter from The Times, unless she has a witness present or is able to make a tape of the conversation. Ms. Scott's irritation is based in her claim that she was misquoted in a story about a state Ethics Commission decision clearing Joe Alosso, Oak Bluffs and Edgartown wastewater plants manager, of any wrongdoing.

Mr. Wiener was equally uncooperative in speaking to The Times. He said in a phone conversation Tuesday he would not speak to a reporter on the record because he could not risk jeopardizing an ongoing case by commenting on it. He said the file on the case is a public record and available for examination in his office.