# Does the following apply to any fence of any height, or just fences 6 feet or less in height?

Does the following apply to any fence of any height, or just to fences 6 feet or less in height?

“Unless specifically noted, the provisions of 5.820, 5.821, and 5.822 above shall not apply to fences, terraces, or walls six (6′) feet or less in height, nor to terraces, steps, unroofed porches, or other similar features not over three (3′) feet high.” ―Zoning Ordinance 5.823

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Even though the "six (6") or less in height" part is only next to the word "wall" (which I'm guessing should be "walls"), it applies to fences and terraces as well. – Cameron May 29 '12 at 15:43
This is an exercise in legalese, not ordinary language usage. Some other clause might say the provisions don't apply to barriers erected by widows, ex-servicemen, or children under 15. That wouldn't be taken to mean 14-year-old widows and ex-servicemen were being singled out for special status. – FumbleFingers May 29 '12 at 15:51
There's a classic Spinal Tap typo in the original: a double prime symbol instead of single prime. Only tiny fences are exempt! – Hugo May 29 '12 at 16:17
@Hugo: I had thought about making an edit to fix the typo, but, no way! Not now! Not after your apropos Stonehenge reference! :^)) – J.R. May 29 '12 at 18:40

First, let me rename "the provisions of 5.820, 5.821, and 5.822" to "X, Y, and Z". Now, we have:

X, Y, and Z shall not apply to (a) fences, terraces or walls six (6') feet or less in height, nor to (b) terraces, steps, unroofed porches or other similar features not over three (3') feet high

Here's how I parse it:

According to (a), X, Y, and Z do not apply to:

• Fences 6' or less in height
• Terraces 6' or less in height
• Walls 6' or less in height

According to (b), X, Y, and Z do not apply to:

• Terraces 3' or less in height
• Steps, unroofed porches, etc., 3' or less in height

If I'm correct, then X, Y, and Z do apply to:

• Fences and Walls taller than 6 feet [according to (a)]
• Steps, unroofed porches, etc., taller than 3 feet [according to (b)]

However, there's a bit of a gray area for Terraces between 3 and 6 feet tall. Let's assume we have a 5'-tall terrace. The second clause (b) would lead one to think X, Y, and Z would apply, but the first clause (a) seems to negate that.

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The provisions mentioned, unless specifically noted, seem to only apply to fences that are greater than 6 feet in height.

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unless specifically noted, the provisions of 5.820, 5.821 and 5.822 above shall not apply to fences, terraces or wall six (6") feet or less in height

It only applies to fences 6' or less in height, unless specifically noted.

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The given provisions will only apply to fences greater than 6 feet in height.

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The text of your ordinance is taken from a model ordinance used by communities all over the country. According to conventional rules for reading law, the model ordinance exempts fences less than six feet in height above the average natural grade. But your ordinance deviates from the model ordinance. As written, it is absurd. It is not at all clear how it might be construed in court.

When reading law, lawyers apply rules of interpretation called canons of construction. The purpose of the canons is to avoid ambiguity, so as to prevent the law from being misconstrued, and to aid in construing law which was not well written. A law written according to canon will be read as intended. The first canon is the plain meaning rule: if the language of a law is plain and unambiguous, then no interpretation is needed. Other canons guide the writing and interpreting of language that would otherwise be ambiguous.

The canon which might apply to your text is reddendo singula singulis: Wikipedia explains that “[w]hen a list of words has a modifying phrase at the end, the phrase refers only to the last”. But applying this canon leads to an absurdity: “terraces” are exempted twice with no differentiating qualification. A canon is not applied when it leads to absurdity, so reddendo singula singulis does not apply.

Your text is lacking some qualifications found in the model code:

Unless specifically noted, the provisions of this Ordinance shall not apply to fences, terraces or walls less than six (6) feet in height above the average natural grade, nor to terraces, steps, unroofed porches or other similar features not over three (3) feet high above the level of the floor of the ground story. [emphasis added]

But these omissions make your text absurd no matter how it is construed. Even when the modifying phrases are taken to refer to every item in the list, not just the last, your text exempts: “terraces … six feet or less in height” and “terraces … not over three feet high”. Terraces under three feet high are exempted twice with no differentiating qualification.

## References

http://en.wikipedia.org/wiki/Statutory_interpretation
http://www.lanesboropa.com/pdfs/zoning_2011.pdf (example of use of conventional wording)

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