Council turns down Paradise couple's appeal for canal fence

By Jen Beasley

November 18, 2005 | PARADISE -- After their son Samuel fell into the canal in their yard and suffered permanent brain damage, Tom and Teresa Jewkes decided to do anything they could to fence in the area, even if it meant building a fence on the town-owned right of way. At Wednesday's Town Council meeting, they were told they could not.

"Of course we were all paranoid after he fell in," Tom Jewkes said. "Even the kids across the street -- she's got some 2-year-olds too -- we're all paranoid like even their kids can fall in."

The Jewkeses said they would build the fence on their own property, but doing so would leave open the area where they say Samuel fell into the canal; an area on the town right of way near their driveway where the water moves very fast.

"That's the most important part that we want fenced in, but we can't because it's city property," Tom Jewkes said.

Members of the council said they were sympathetic to the Jewkes' circumstances, but still couldn't allow them to build on the right of way.

"If it were me I'd being doing the same thing," Councilwoman Margaret Obray said of the situation. "But we're wearing different hats."

Mayor Lee Atwood said giving up the town's right of way by letting the Jewkeses build a fence on it would lead to other people wanting exceptions for other things they think are dangerous. He said didn't want to set a precedent.

"The big problem is preserving the right of way," Atwood said. "I'm talking about when you move from scenario to scenario, you've now got somebody else coming in who says, 'I'd like to build my fence out by the (right of way) because I want my kids to be able to play out by the asphalt.' That's a hard call because you become a bit arbitrary and capricious."

Tom Jewkes said he didn't think the situations were similar. "This is more dangerous than cars in the street," he said.

Atwood said that difference of opinion was the whole point. "Do we really want to be in a position where we say, 'Yours is a danger, yours is not, yours is really bad, yours is not, yes, no?' That's where it gets really arbitrary."

The Jewkeses were not receptive to the suggestion that they build a gate across their part of the driveway, so that fence would shut out the area in question.

"We don't want a gate; a gate's going to get left open," Teresa Jewkes said. "It's just the kind of thing where you say, 'You can fence your backyard off, but if someone leaves the door open'..."

The council brainstormed a lot of alternatives to building the fence on the right of way, including mounding dirt in that area, or putting a fence on the Jewkes' property with a gate that swings out, so that if it is in fact left open, it covers the dangerous area.

Ryan Obray, a Paradise resident who was at the meeting, suggested that the town look into making an ordinance that fenced all the bridges in town.

Tom Jewkes asked the council to see things from his family's perspective. "I'll live with whatever you decide," he said. "We honestly don't want to be any trouble. It would make us feel a lot better if the lawyer and you guys would say the same thing if it was your kid. Honestly, if it was your kid would you be saying the same thing?"

Ultimately, the council told the Jewkeses that actually building a fence on the right of way was not possible, even though the Jewkeses said they would donate all the materials and give the fence to the town.

"Part of it is liability," Atwood said, who said town attorney Brian Cannell had advised the town not to give up the right of way. "When somebody hits the fence or the structure, we're liable. That's why we don't build anything in the right of way."

Councilman Gerry Winn said he thought hitting the fence would be better. "But if the car runs into the canal, but hits this fence instead of running into the dang canal, that's got to be a benefit," Winn said.

Teresa Jewkes told the council that if there was any way to fence the canal, now or in the future, she wanted to help.

The council did not vote on the issue.

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