Agenda Packets - 2006/05/08 - Laserfiche WebLink

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Mounds View City Council April 24, 2006 Regular Meeting Page 24 administrative actions or responsibilities necessarily or solely. He stated the Council may have 1 legal advice that states that no legal issue exists; however, that response may not be the final 2 answer necessary for the Council to make the situation work. He indicated there is not a legal 3 issue, so the decision is in the Council’s hands. He commented that there is not always a legal 4 answer to every issue before the Council. 5 6 Mr. Amundsen stated that the Council was asked to determine if there is a setback for terraces, 7 retaining walls or other similar structures in the code. He stated that City Attorney Riggs advised 8 there is no setback requirement specified in the code. He stated the building department verified 9 that the adjacent property owner indicated he wanted to create a potential parking area and that 10 they advised the owner that it would have to be five feet from the fence in an eleven foot wide 11 area. He stated the fact is that the building department did not deny the permit for the parking 12 area, which does have a setback requirement. He stated if the adjacent property owner wanted a 13 zero setback for a fence, it would have required the property owner to follow a variance process 14 to get approval. He indicated that variances have almost always been denied for a zero setback. 15 16 Mr. Amundsen stated that the issue needs an answer so that he can move forward. 17 18 Mr. Amundsen stated that the other question is whether the area with a 23 to 30 inch high fence 19 should be next to the property line when the code does not specify its application. He stated as a 20 result, under Section 110108, if there is no setback specified, then it must be a denied use permit. 21 He asked if the Council wants to follow its past practice to deny variances for less than five feet 22 for parking areas. 23 24 Mr. Amundsen stated the Council must determine if it wishes to incur expenses as result of 25 another citizen’s action. He indicated he will have to do something about the liability that he 26 now faces because the fence no longer sufficiently limits his liability. He stated that if the City 27 does not allow the variance, then it will be supporting his position that he should not have to 28 incur additional expenses. 29 30 Mr. Amundsen explained the City was provided information that the code does not have a 31 setback specification and does not cover the situation, but the case quoted by City Attorney Riggs 32 needs to be heard by the district court for the applicants’ appeal. He stated that the building 33 department’s interpretation is questionable in the courts if it is not clear and in plain language 34 within the code. He stated that because nothing is in code, he is having a hard time saying that it 35 negates Section 110108, which says that it has to be in code or it is denied. He added that 36 Section 110105 says that if it is in code, on a permit or a document that the City has, that the 37 more restrictive of the restrictions has to be applied. He noted that there is not an allowed zero 38 setback for any structure except fences. 39 40 Mr. Amundsen asked the Council to direct the Community Development Department to require 41 the adjacent property owner to move the structure back to a five foot minimum setback for the 42 structure that was requested for the parking area. He noted this action by the Council will 43 support the code ordinance that is adopted and will support the primary objective and policy in 44