Motion To Dismiss Filed In Case Of Combustible Fence Material


Attorney Amanda J. Thom has filed a motion to dismiss in a local civil case filed in First Judicial Court last month by Una Smith and James Szinger against their next door neighbors Karen Rigg and her daughter, Lori Rigg concerning their objection to the Riggs’ plan to use cedar panels for fencing between the two properties. See

The motion to dismiss states that the fence permit obtained from Los Alamos County by Karen Rigg is not to materially alter the chain link fence that sits along the property line between the Riggs property and their neighbors, Una Smith and James Szinger, who filed the suit. The permit was obtained to attach cedar panels, which are pre-constructed and treated, to the existing fence posts using wire to provide additional privacy for both property owners, the motion to dismiss states.

The motion alleges that Lori and Jody Rigg have suffered “two years of continued, repeated and escalating harassment” from Smith. It alleges the harassment began when Lori Rigg was using equipment to work in her own back yard in the middle of the day two years ago and Smith complained about the noise.

“In recent months the unfounded complaints to various County departments have caused Lori and Jody Rigg repeated interruptions to their small business and their daily schedule,” the motion states.

One of the complaints Smith made was about the Riggs’ chicken coop located in the rear yard at their property, the Riggs claim.

“As a result of that complaint, the County Code Compliance Officer notified the Riggs that they needed to install a fence to screen their yard from public view,” the motion states. It was at that point that Lori Rigg applied to the County for a permit.

While Smith’s lawsuit maintains that the cedar panels are made of combustible material and that they fear the use of combustible materials will lead to a fire under current conditions”, the motion to dismiss indicates that both properties as well as all the neighboring properties are “heavily wooded” and that both properties have large trees, brush and are bordered by heavy vegetation,

“(The Szinger/Smith property) has a large brush pile and a dead tree stump as well as a downed dead tree just behind her rear property line,” the motion states.

Lori and Jody Rigg claim that since the lawsuit was filed, Smith’s harassment of them has “rapidly increased resulting in repeated interruptions to their small business and to their recovery from COVID”.

“These recent complaints have not resulted in any of the County Departments requiring Lori and Karen Rigg to take any corrective action,” the motion says. “In addition, Una Smith has continued to interrupt their quality of life by standing in her yard and harassing their dogs when they go outside. This includes calling to them, teasing them and generally causing them to bark.”

It says Lori and Jody Rigg have asked Smith not to interact with their dogs so that their dogs can use the fenced backyard but that “Smith’s harassment continues to the point where Lori and Jody Riggs cannot allow their dogs to use the backyard except for short periods of time”. This causes unnecessary emotional stress and interruption to the Riggs’ quality of life.Co

The motion claims the complaint doesn’t include any case law or legislative law that prohibits the Riggs from constructing a fence on their side of the property line that is adjacent and attached to an already existing fence (while not materially altering it) with materials that are legally allowed within the Municipal Code.

The existing chain link fence was installed when Los Alamos was in the early stages of development. The Riggs maintain that it when the fence was built, it was expected that additional levels of screening and privacy would be added between neighboring properties.

Lori and Karen Riggs are asking the Court for a permanent injunction to prevent further harassment by Smith. They have asked for their rights to quiet enjoyment of their property to be enforced and claim that they will suffer irreparable harm if Smith is allowed to continue to file complaints against them. They are asking for attorney fees in the case and asking the Court to allow them to install their legally permitted fence panels. They are also asking for permanent injunctive relief from Smith’s continuing to harass the through “verbal assaults and taunts and by using various County departments to interrupt their quality of life”.

The case has been assigned to District Judge Jason Lidyard. No hearing date has yet been set.