Residents and New Franklin officials spar over 10-foot easement, fence and liability near park

Residents who border a small city park in New Franklin pressed the city council and administration on whether they may install a privacy fence along a 10-foot easement that runs between their backyards and the park.

Trisha Boland, a nearby resident, told the council she and her neighbors obtained an outside attorney’s written opinion that, she said, reviewed nine Ohio court decisions and concluded the easement was abandoned and now belongs to the homeowners. "I don't wanna be liable for it," Boland said about safety and criminal activity she said she fears could occur on the other side of a proposed privacy fence.

City officials told the assembled neighbors that the city's law director has reached a different conclusion. A city administrator who spoke at the meeting said, "I am convinced that that easement is still a valid easement," and said there is no record language showing the easement terminated when the adjacent school property was sold. The city administrator and other officials said the city cannot simply ignore an easement and permit placement of a fence on it without resolving the legal issue.

Why it matters: the dispute affects access to the park used by roughly 50 homes around the neighborhood, the safety and privacy of homeowners with backyard pools, and who would maintain or face potential liability for injuries or criminal acts that occur in the easement area.

What the council and staff discussed - Two legal opinions: neighbors hired an outside attorney who provided a written opinion that cites multiple Ohio court decisions; the city's law director (identified in the meeting as Mr. Sherman) issued a contrary opinion. City officials said the city must follow its law director's advice unless a court rules otherwise. - Practical options: staff described a possible administrative accommodation that would create a 6-foot wide path within the 10-foot easement by allowing an encroachment of about 4 feet for a privacy fence, while leaving a maintained 6-foot channel for public access. Officials said any encroachment would require permit language that preserves the city’s right to remove the structure if needed. - Liability concerns: residents and the homeowners' attorney raised concerns that a privacy fence might increase the chance that an injury or crime behind the fence could lead to homeowner liability. City staff responded that liability requires a showing of negligence and that the city’s exposure would depend on proximate cause; staff said they had not given a formal legal opinion on absolute liability and suggested the risk was remote but not impossible. - Maintenance and cost: speakers discussed who would mow the narrow strip inside a fence and who would maintain the fence itself. A staff estimate for full fence installation referenced amounts discussed by staff and the neighbor group in prior site visits (quotes and stored materials were discussed at the meeting); speakers said the city’s administrative threshold for returning to council is $10,000 and the fence estimates discussed previously were below that threshold.

Actions, directions and next steps - No formal motion or vote was taken on a fence or legal position at the meeting. - City staff said they would consider administratively whether to permit a 4-foot encroachment with a 6-foot path and would draft permit language and maintenance terms if an accommodation were to be offered. - Multiple residents said the only definitive way to resolve ownership of the easement would be litigation; city officials said a court would be the final arbiter if the parties choose to sue.

Context and history - Residents said they have pursued this matter for roughly 10 months and that the issue has been discussed at earlier meetings and site visits. They said they have incurred attorney costs for the outside opinion (Boland said they paid $250 for the outside attorney) and additional out-of-pocket expenses she estimated at $1,500–$2,000 to date. - The neighborhood expressed interest in alternatives that preserve access for nearby families while addressing privacy and safety concerns; suggestions included a crushed-limestone walking surface, stanchions or bollards to deter ATVs, improved lighting, and cameras tied to dispatch.

What remains unresolved - The competing legal opinions: the city’s law director and the homeowners’ outside attorney disagree; both sides acknowledged that only a judge can definitively resolve ownership of the easement. - Whether the city will offer the administrative encroachment option (allowing private fence materials to be installed partly over the easement under permit terms) remains under consideration; staff said they would follow up with the property owners after drafting specific permit language and cost/maintenance terms.

The council and administration asked the homeowners to provide any additional information and said they would notify the group after staff considers the specific permit and maintenance language.