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Mounds View City Council April 24, 2006 <br />Regular Meeting Page 24 <br /> <br />Mr. Amundsen thanked the Council for bringing this matter forward. He commented that the <br />Council relies on multiple sources for input to make decisions, and that legal counsel is one of <br />these aspects. He stated legal counsel is responsible to advise on legal impacts and not on <br />administrative actions or responsibilities necessarily or solely. He stated the Council may have <br />legal advice that states that no legal issue exists; however, that response may not be the final <br />answer necessary for the Council to make the situation work. He indicated there is not a legal <br />issue, so the decision is in the Council’s hands. He commented that there is not always a legal <br />answer to every issue before the Council. <br /> <br />Mr. Amundsen stated that the Council was asked to determine if there is a setback for terraces, <br />retaining walls or other similar structures in the code. He stated that City Attorney Riggs advised <br />there is no setback requirement specified in the code. He stated the building department verified <br />that the adjacent property owner indicated he wanted to create a potential parking area and that <br />they advised the owner that it would have to be five feet from the fence in an eleven foot wide <br />area. He stated the fact is that the building department did not deny the permit for the parking <br />area, which does have a setback requirement. He stated if the adjacent property owner wanted a <br />zero setback for a fence, it would have required the property owner to follow a variance process <br />to get approval. He indicated that variances have almost always been denied for a zero setback. <br /> <br />Mr. Amundsen stated that the issue needs an answer so that he can move forward. <br /> <br />Mr. Amundsen stated that the other question is whether the area with a 23 to 30 inch high fence <br />should be next to the property line when the code does not specify its application. He stated as a <br />result, under Section 110108, if there is no setback specified, then it must be a denied use permit. <br />He asked if the Council wants to follow its past practice to deny variances for less than five feet <br />for parking areas. <br /> <br />Mr. Amundsen stated the Council must determine if it wishes to incur expenses as result of <br />another citizen’s action. He indicated he will have to do something about the liability that he <br />now faces because the fence no longer sufficiently limits his liability. He stated that if the City <br />does not allow the variance, then it will be supporting his position that he should not have to <br />incur additional expenses. <br /> <br />Mr. Amundsen explained the City was provided information that the code does not have a <br />setback specification and does not cover the situation, but the case quoted by City Attorney Riggs <br />needs to be heard by the district court for the applicants’ appeal. He stated that the building <br />department’s interpretation is questionable in the courts if it is not clear and in plain language <br />within the code. He stated that because nothing is in code, he is having a hard time saying that it <br />negates Section 110108, which says that it has to be in code or it is denied. He added that <br />Section 110105 says that if it is in code, on a permit or a document that the City has, that the <br />more restrictive of the restrictions has to be applied. He noted that there is not an allowed zero <br />setback for any structure except fences. <br /> <br />Mr. Amundsen asked the Council to direct the Community Development Department to require <br />the adjacent property owner to move the structure back to a five foot minimum setback for the