Olentangy Valley News

Liberty Township zoning inspector steps down after fence-height flap

Resident's claim that neighbor's pool fence is too short leads to 'not exactly accurate' affidavit from inspector

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A property dispute between neighbors that grew into a court case involving Liberty Township officials has led to the resignation of the township's zoning inspector.

Township Administrator Dave Anderson said the township accepted Zoning Inspector Holly Foust's resignation March 3, a month after she filed an affidavit that "was not exactly factually accurate."

Anderson said a section of an affidavit in which Foust stated she measured a fence involved in a property dispute and recorded its height accurately turned out to be false, and she resigned after the discrepancy came to light.

The fence was the focal point of a lawsuit filed by Hyatts Road resident Patti Gilcrest against Foust, Assistant Zoning Inspector Tracey Mullenhour and the township's board of trustees in September. In the suit, Gilcrest claimed township officials issued a certificate of compliance for a neighboring property's swimming-pool fence, even though the fence did not meet county and township zoning standards.

Gilcrest's civil complaint argued that the pool, located on the property of Gregory and Janet Bates, was an attractive nuisance. According to the complaint, the pool represented an "ongoing dangerous condition in the form of a non-zoning non-building code compliant fence ... as there is no effective barrier between the Bates swimming pool and the Gilcrest residential property."

Gilcrest claimed the fence violated the zoning code because it was not the required 54 inches tall, among other deficiencies. She claimed the actions of the township, the Bates family and/or the legal representation of both parties represented a "civil conspiracy" that resulted in the issuance of a false certificate of compliance.

The complaint asked a judge to compel the township to rescind the certificate of compliance for the fence and force the neighboring property owners to bring the fence into compliance. The plaintiff also asked the judge to award punitive damages exceeding $50,000 and legal fees.

In response to Gilcrest's complaint, the Delaware County Prosecutor's Office, which is representing the township, filed an answer laying out 21 affirmative defenses. One of the defenses stated that the "defendants completely adequately studied, examined and inspected the fence to ensure that the fence complied with the Zoning Resolution."

In a Feb. 3 affidavit, Foust said she used a standard measuring tape to examine the fence and determined it was "at least 54 inches ... in height" and in compliance with the township's zoning code July 10.

According to court records, measurements taken Feb. 21 at multiple locations around the fence proved it was shorter than 54 inches. In a letter dated Feb. 25, Anderson informed Gregory and Janet Bates that the certificate of compliance for their pool fence had been revoked and they were in violation of the township's zoning resolution.

The letter stated they had until April 30 to correct the violation.

On March 14, the prosecutor's office asked for more time to file an amended answer to the complaint in light of the new facts and also asked for a judge to dismiss the lawsuit. The office argued that by rescinding the certificate, the township had given the plaintiff what she had requested, except for monetary damages.

Additionally, the prosecutor's office said the township's board of trustees and employees had political subdivision immunity from the claim involving monetary damages.

Under Ohio law, public officials generally are immune from liability in civil cases involving their official duties.

On Monday, March 17, Gilcrest's attorneys asked for more time to file an amended complaint with the court. Gilcrest's attorneys could not be reached for comment.

As the lawsuit continues, Liberty Township is seeking a permanent replacement for Foust. Last week, the township began advertising for her replacement after renaming the position and approving a new job description.

Foust's replacement will serve as the township's assistant administrator/development and zoning director.

Anderson said the title and duties better reflect the number of tasks the job has grown to include over the years, including oversight of the information technology department. He said the salary for the position likely will be between $60,000 and $80,000 per year.

Mullenhour has been named interim zoning inspector as the township seeks a permanent replacement.

Anderson said Foust was an integral part of the township's operation for almost two decades.

"Holly's been here 18 years," Anderson said. "She did a good bit of service with the community."

An attempt to reach Foust for comment was unsuccessful.

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