8.2. SR 09-17-2012 Elk REQUEST FOR ACTION
River
TO ITEM NUMBER
Mayor and City Council 8.2
AGENDA SECTION MEETING DATE PREPARED BY
General Business September 17, 2012 Jeremy Barnhart,Planning Manager
ITEM DESCRIPTION REVIEWED By
Moritz Fence Item Peter Beck, City Attorney
REVIEWED BY
Cal Portner, City Administrator
ACTION REQUESTED
Receive background information and provide direction to staff regarding fencing associated with
agriculturally used properties.
BACKGROUND/DISCUSSION
At Open Forum on August 20,James Neilsen,representing the Motitz's, approached the Council with a
concern related to the enforcement of the fence ordinance at the Moritz properties near Twin Lakes
Road and 201st.
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The parcels in blue are owned by the Moritz's, according to Sherburne County.
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The Applicable regulations:
Section 30-796 (d) (2)
c. Electric fences,barbed wire fences and barbless wire fences shall be permitted only in the
A-1 and R-1a zoning districts when related to farming,but not as boundary fences.
Section 30-1007 includes the requirement that the keeping of livestock(fences)is prohibited within 5 feet of any
property line.
Recognizing that barbed wire and electric fences can be dangerous, the ordinance establishes a five foot
setback to protect adjacent property owners from harm and to protect adjacent property owners from
animals grazing on property X significantly altering trees or other vegetation on property Y within reach.
With a five foot setback, a person would have to actively take steps onto an adjacent property to touch
the fence. On the property line, a person would merely need to fall onto the property line. On fences
along a right of way line, this also would apply, as the ditches and the rights of way in rural areas are
commonly used for recreation,including snowmobiling and ATV operations.
Legal issue
Mr. Neilson noted at the August 20 meeting that the city does not have jurisdiction to enforce the city j
regulation when it applies to fences in agricultural uses. City Attorney Beck has reviewed the statute and
it is his opinion that the statute does not preempt the city's right to adopt regulations regulating the type,
size, and location of fences.
Staff has identified four scenarios involving fences in agricultural.settings.
1. Internal property line. A single property owner owns adjacent two parcels in agricultural use.
2. External property line. Two different property owners own adjacent parcels in agricultural use.
3. Non Ag. An agriculture use abuts nonagricultural uses, commonly residential.
4. ROW line.An agriculture use abuts a public ROW line.
The Moritz' appear to have all of these scenarios. This issue was originally raised by an area property
owner who objected to their neighbor constructing a barbed wire fence on the property line.
At the August 20 meeting, the fence was not installed. Since then, the city has verified that a barbed wire
fence has been constructed within the 5-foot setback.
Options
The fence is currently illegal. To correct this issue, there are a number of options available to the City
Council as identified by staff:
1. No change and enforce. Enforce the fence setback/construction requirement per Section 30-576,
Violations,which may include a misdemeanor.
2. Amend the ordinance. Direct staff to draft an amendment to the fence setback or construction
regulations to allow barbed wire type fences in one or several of the scenarios described above.
NAPublic Bodies\City Council\Council RCA\Agenda Packet\09-17-2012\Moritz 9-17-12.docx
The property owner may relocate the fence to maintain the 5-foot setback. In areas where multiple
parcels adjoin, these parcels may be combined,removing the property line, or the property owner may
adjust the property line, moving it to a more suitable location for fence construction.
A variance is not an option is this situation, as the ordinance prohibits the keeping of livestock (barbed
wire fences) within the first 5-feet, and a prohibition requirement may not be allowed by variance.
FINANCIAL IMPACT
None
ATTACHMENTS
• Ordinance
• Enforcement letter
Action Motion by Second by Vote
Follow Up
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Sec. 0-1007. - Accessory structures.
Accessory structures shall comply with the following dimensional regulations:
District Front Side Rear Maximum Fences Agricultural.
Setback Setback Setback Height (feet) Buildings
feet feet feet feet feet
R-1 a 35 20 30 221 0 3
R-1b:
Nonsewered 35 10 20 15' 02 100
Sewered 35 5 5 151 o2 100
R-1 c 30 5 5 151 0 2 100
R-1d 35 5 5 151 02 100
R-2a:
Duplex 30 5 5 15'
R-2b:
Townhouse 30 10 110 1151
R-3:
Single-family 30 5 10
Duplexes 30 15 15
R-4:
Townhouse and 30 10 10 15'
other multifamil
Swimmin pools 5 —
1 A maximum of one story is permitted.
2 The keeping of livestock (fences) is prohibited within 100 feet of any property line in the R-1 b, R-1 c, and R-1 d
districts.
3 The keeping of livestock (fences) is prohibited within five feet of any property line.
4 Agricultural building shall be set back 30 feet from any property line and 50 feet from any road right-of-way.
5 Swimming pools. Swimming pools shall be setback a minimum of eight feet from the side yard and rear yard
lot lines and must comply with the required front yard setback as this subdivision II. Swimming pools must comply with
the fencing requirements found in section 30-796.
(Code 9982, §900.18(2); Card, No. 01-15, § 1, 10-15-2001; ?ref. No. 04-15, §2, 10-18-2004)
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Sec. 30-796. - Fences; visibility at intersections and driveways.
(a) Height restrictions. In any residential zone on any lot, no fence or planting shall rise over 2'h feet in height
above the level of the public sidewalk or curb of street within ten feet of the front property line.
(b) Height of fences in side and front yards. No fence in a front yard or along a side line of a lot in a residential
zone, other than a retaining wall, shall be higher than six feet in height unless the adjoining lot is not in a
residential zone. Construction of a fence exceeding six feet in height requires a building permit.
(c) Height of fences in rear yard. No fence higher than eight feet may be located in a required rear yard in a
residential district, unless the adjoining lot is not in a residential zone. Construction of a fence exceeding six
feet in height requires a building permit.
(d) General requirements for fences.
(1) Location. Any fence shall be located entirely upon the private property of the person constructing or
causing the construction of such fence unless the owner of the adjoining property agrees, in writing, that
such fence may be erected on the division line of the respective properties. The director of planning or
their designee may require the owner of the property upon which a fence exists to establish the
boundary lines of the property by a survey thereof.
(2) Construction and maintenance.
a• Every fence shall be constructed in a complete and substantial manner and of materials
reasonably suited for the purpose for which the fence is proposed to be used.
b. Every fence shall be maintained in a condition of reasonable repair. No fence shall be
constructed or continue which is dangerous to the public safety, health, or welfare as determined
by the director of planning or their designee.
C. Electric fences, barbed wire fences and barbless wire fences shall be permitted only in the A-1
and R-1 a zoning districts when related to farming, but not as boundary fences.
(3) Finished side of fence to face adjoining property. If the material used in the fence construction is not
finished on both sides, the finished side of the material shall be on the outside, facing the abutting or
adjoining properties, and all posts or structures supporting the fence shall be on the inside of the fence.
(4) a. All below ground pools require a building permit and shall be enclosed with a fence that is a
minimum four feet high and includes lockable gates. The fence shall be installed prior to filling the
pool. Fencing shall be chain link, vertical pickets or solid. Spaces between the bottom of the
fence and the ground or between the pickets shall not exceed four inches.
b• All above ground pools that require a building permit shall have access controlled with a means to
prevent access into the above ground pool when unoccupied. Failure to prevent access into an
above ground pool when unoccupied is a misdemeanor.
C. All pool related chemicals shall be stored inside a structure.
(Code 1952, §900.20(6);Ora'. No. 03-10, § 1, 6-16-2003;Ord. No. 04-15,§ 1, 10-16-2004; Ord. No. 06-09, § 1, 7.17-2006;)
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City of
El
er
13065 Orono Parkway
Elk River, MN 55330
July 20,2012
Martin Moritz
20541 Twin Lakes Road
Elk River, MN 55330
Dear Mr. Moritz,
The City of Ella River has been made aware of a condition that exists on your property that
violates City Ordinance.
Section 30-1007(3) states:The keeping of livestock (fences) is prohibited within five feet of
any property line.
It should be noted that this is an Rla zoned district and that barbed wire fences are
permitted. Section 30-1007 is headed as"Accessory structures "and barbed wire fences are
considered an accessory. The issue is the five foot setback.
Failure to bring your property into code compliance may result in a citation,prosecution or
both.
Thank you in advance for taking care of this issue. Please call me at 763-635-1067 if you
have any questions.
Sincerely,
Dave Hetrick
Code Enforcement Official
City of Elk River
763-635-1067
dhetrick a,elkriverinn.gov
Phone: 763.635.1000
Fax: 763.635.1090
www.ci.elk-river.mn.us