Minutes - 2006/04/24 - Laserfiche WebLink

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Mounds View City Council April 24, 2006 Regular Meeting Page 28 Director Ericson stated that the City has to look at the intent, and every code needs the clause that states if it is not explicitly permitted, then it is not allowed. He commented there are holes to allow what one would naturally see in any residential district. He stated birdhouses are not listed in the code, and by strict interpretation of the code, it would not be allowed. He stated there are features that may not be contemplated but they are not intended to be restricted because they do not show in the code. He stated that certainly birdhouses are allowed in the City. Director Ericson stated that the fact that there is not an interpretation or a definition of a retaining wall in the code does not change the fact that this is something that is not unexpected in a residential district or between property lines. He stated it is a feature that is commonly used in landscaping as well as to demarcate where a property line is. He stated that because it is not strictly permitted, the City has latitude to have the discretion to say that it is allowed by virtue of the fact that it is same or similar or permitted as part of the residential landscape. He stated he disagrees because it is not strictly defined that it not is permitted. Councilmember Thomas stated that the situation is not just about the Amundsens, but rather that the City needs to look at the situation across the board. She stated she does not believe the provision applies to this particular situation. She stressed there is a strong implication in the code that retaining walls are allowed at property lines, even though there may not be a definition. She stated that if the issue goes to court, it will come down to what has been the City’s past practice, the consistency of interpretation, and the implication of the code. She stated the City does allow retaining walls on the property line, but the code does not say how it is applied. Director Ericson explained the Planning Commission looked at whether there should be a definition of a retaining wall in the code and if there should be a setback for a retaining wall in the code. He mentioned they also looked at issues relating to fences and terraces, and they have not taken official action, they have directed Staff to bring forward additional research. He stated the Planning Commission’s intent is to add a definition of what a retaining wall is and indicate that retaining walls are allowed up to the property line. He stated that the Planning Commission felt that there was not a need to add the definition of a terrace, as it was defined similar to a patio in the code. He stated the Planning Commission felt there should not be a setback for fences and the code should remain as it currently states. He explained the Planning Commission will be bringing forward a recommendation that addresses retaining walls, and the recommendation will be that retaining walls are allowed up to the property line and a definition of a retaining wall will be added. Mrs. Amundsen stated the code makes references to ornamental items that can be moved. She stated that there is a definition in the code that defines that a structure is permanently cemented in the ground. She stated one has to be careful in comparing a birdhouse to a structure as they are not similar. Mrs. Amundsen asked City Attorney Riggs what his opinion is on the fact that the code states that when something is not specifically allowed, that the City should err on the side of the more