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7.5. SR 10-20-2014 Ells -Wft _ Request for Action River To Item Number Mayor and City Council 7.5 Agenda Section Meeting Date Prepared by Public Hearinj October 20,2014 Zack Carlton,Planner I Item Description Reviewed by Ordinance Amendment Modifying Fencing Jeremy Barnhart,Deputy Director CODD Regulations for Agricultural Uses Reviewed by Cal Portner, City Administrator Action Requested Adopt, by motion,an ordinance amending Section 30-976, entitled "fences;visibility at intersections and driveways" and Section 30-1007, entitled"accessory structures"in order to modify agricultural fencing requirements. Background/Discussion Case No. OA 14-08 Inconsistencies between state statutes and our ordinances were identified during recent litigation proceedings. The court's summary judgment declared sections 30-796 (d)(2)(c) and 30-1007 to be unenforceable. The following changes are intended to bring our ordinances in line with current state statutes. Sec. 30-796 permits electric fences, barbed wire fences, and barbless wire fences in the A-1 and R-1a zoning district when related to farming,but not as a boundary fence. The requirement to limit fencing styles for non-boundary fences was found to be in conflict with state statutes. The proposed amendment removes the prohibition,permitting the use of electric, barbed, and barbless fences as a boundary fence. Sec. 30-1007 regulates setbacks of accessory structures and fences in all residential districts. The regulations in footnotes two and three identify setbacks for livestock/agricultural animals in residential districts. The judgment states that a setback for these fences is in conflict with state statutes and that livestock fences are permitted to be located on the property line. The amendment removes the setback requirement for livestock fences. Planning Commission The Planning Commission expressed concern over the changes to Sec. 30-1007, specifically that proposed changes did not properly address the court's decision regarding the setback for livestock fences. After speaking with the City Attorney, the ordinance amendment was changed to remove the word "(fence)"in footnotes two and three. The proposed change affects the city's policy on the keeping of agricultural animals/livestock. The intent of the current ordinance is to protect adjacent property owners from a potential nuisance due to the keeping of agricultural animals in residential districts. The ordinance previously regulated fencing to establish the livestock setback,and the new ordinance regulates the use itself. P O w E 6 E U A Y Template Updated 4/14 INAWR The Planning Commission had no other concerns and recommended approval 7-0. Public Hearin No one spoke during the public hearing and no comments have been received for or against the proposed ordinance amendment. Financial Impact None Attachments • Planning Commission Packet dated September 23,2014 • Ordinance Amendment • State Statute Chapter 344—Partition Fences N:APubhc Bodies\Agenda Packets\10-20-2014\Final\x7.5 sr Fence OA.docx city of ElL*kl ��^~���0����~ ����� °���� ~ ~����~~��.~~~ .~~. Action To Item Number Planning Commission 5.3 Agenda Section Meeting Date Prepared by Planning Items September 23, 2014 Zack Carlton,Planner I Item Description Reviewed by Ordinance Amendment Modifying Fencing Jeremy Barnhart, DeputyDirector CODD Regulations for Agricultural Uses Reviewed by Public Hearing, Case No. OA 14-08 Action Requested Recommend,by motion, approval of the ordinance amendment request by the City of ElIc River to modify fencing regulations rela to agricultural uecu. Background/Discussion Inconsistency between state statutes and our zoning ordinance were identified during rrccotlitigation proceedings that included the city. I6c following changes are intended to bring out ordinances in line with current state statutes. City ordinances permit electric fences,barbed wire 6eu ccu, uo d b zblo ssnir c feuccoin the A-1 and R-1 u zoning district when related to farming,but not as u 6unuduzy fence. The requirerrient to Emit fencing styles for non-boundaiy fences was found to be in conflict with state statutes. The proposed ordinance amendment removes the prohibition, permitting the use of electric, barbed, and barbless fences as a boundary fence. Additionally, the city's rogoirczocut for all livestock 6cocou to be setback utleast five feet from any property line was ol uo deemed to conflict oddz state statutes.The proposed amendment��noveo thi this requirement. Financial Impact Nuoc Attachments IN Ordinance Amendment Tcrriplate Updated 4/14 INATURE Strikethfoughts to be removed Underlines to be added City of EILk ��� Pdveoi"� Ordinance 14 - An Ordinance Amending Section, 30-796, entitled "Fences; visibility at intersections and driveways" and Section, 30-1007, entitled "Accessory structures" of the City of Elk River, Minnesota, City Code to allow State Licensed Residential Facilities as a permitted use. The City Council of the City of Elk River does hereby ordain as follows: SECTION 1. That§30-796 (d)(2) of the City of Elk River Code of Ordinances shall be amended to read as follows: (d) General requinementsforfences. (2) Construction and maintenance. a. Every fence shag 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.; bu"-o",s-boundf m4en e e s- SECTION 2. That§30-1007 of the City of Elk River Code of Ordinances shall be amended to read as follows: Accessory structures shall comply with the following dimensional regulations: District Front Side Rear Maximum 'Fences Agricultural Setback Setback iSetback Height (feet) Buildings (feet) (feet) (feet) (feet) (feet) R-1a 35 :20 :30 03 R-1 b: Nonsewered 135 10 20 '151 OZ '100 Sewered 135 5 5 :151 02 100 R-1c 130 5 5 1151 02 :100 R-1d 35 5 5 02 100 R-2a: P 0 W E H 1 0 0Y NA' Last Updated March 2014 I I UREI StAEethreughq to be removed Underlines to be added Duplex d 30 5 5 1 15' 0 ;- R-2b: Townhouse 130 110_ t10 151 0 - R-3: s Single-family ;30 a 5 .10 ;Duplexes i 30 a 5 R-=1: Townhouse and other multifamily '30 €10 AO =15' 0 '— Sxxnmmuig pools' s — 0 ' A maxitnurn of one story is permitted. 'The keeping of livestock (fences) is prohibited within 100 feet of any property, line in the R-1b,R-1c, and R-1d districts. - _. ...a ,... line. 4-3 Agricultural building shall be set back 30 feet from any property line and 50 feet from any road right-of-way. --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 subdixision II. Swimming pools must comply-with the fencing requirements found in section 30-796. SECTION 3. That this ordinance shall take effect upon adoption and be published as provided by law. Passed and adopted by the City Council of the City of Elk River this Click here to €rater day this\x,i.1l be adopted day of Click here to enter mon'Lli this will be adopted,2014. John J. Dietz,Mayor A'l-fEST: Tina Allard, City Clerk Last Updated march 2014 Strikethroughs to be removed Underlines to be added City of Elk River Ordinance 14 - An Ordinance Amending Section, 30-796, entitled "Fences; visibility at intersections and driveways" and Section, 30-1007, entitled "Accessory structures" of the City of Elk River, Minnesota, City Code to Modify Agricultural Fencing Requirements. The City Council of the City of Elk River does hereby ordain as follows: SECTION 1.That§ 30-796 (d)(2) of the City of Elk River Code of Ordinances shall be amended to read as follows: (d) General requirements for fences. (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-1a zoning districts when related to farming_; SECTION 2.That§ 30-1007 of the City of Elk River Code of Ordinances shall be amended to read as follows: 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-1a 35 20 30 22' 03 4 R-1b: Nonsewered 35 10 20 15' 02 100 Sewered 35 1 5 1 5 15' 02 100 R-1c 30 1 5 1 5 15' 02 100 R-1d 35 1 5 1 5 15' 02 100 R-2a: NAWR Last Updated March 2014 IJ Strikethroughs to be removed Underlines to be added Duplex 30 1 5 1 5 151 0 — R-2b: Townhouse 30 10 10 151 0 — R-3: Single-family 30 5 10 Duplexes 30 5 5 R-4: Townhouse and other multifamily 30 10 10 151 0 — Swimming pools — 0 1 A maximum of one story is permitted. 2 The keeping of livestock ffeffeeg�-is prohibited within 100 feet of any property line in the R-1b,R-1c, and R-1d districts. s The keeping of livestock fferaet-+is prohibited within five feet of any property line in the R-1a district. 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. SECTION 3.That this ordinance shall take effect upon adoption and be published as provided by law. Passed and adopted by the City Council of the City of Elk River this 20th day of October, 2014. John J. Dietz,Mayor ATTEST: Tina Allard, City Clerk P- UfEBEU 9Y �AWR Last Updated March 2014 I MINNESOTA STATUTES 2013 344.02 CHAPTER 344 PARTITION FENCES 344.01 FENCE VIEWERS. 344.10 LANDS BOUNDED BY STREAM. 344.011 EXEMPTION. 344.11 LANDS OCCUPIED IN COMMON. 344.02 KINDS OF PARTITION FENCES. 344.12 VIEWERS TO FIX TIME FOR BUILDING. 344.03 EXPENSE;EQUAL SHARES. 344.13 LANDS FIRST ENCLOSED. 344.04 FAILURE TO BUILD OR REPAIR;RIGHTS OF 344.14 VIEWERS WHEN FENCE ON TOWN LINE. COMPLAINANT. 344.16 DIVISION OR RECORDED AGREEMENT RUNS 344.05 REPAIR COSTS RECOVERABLE. WITH THE LAND. 344.06 CONTROVERSY, DECISION BY FENCE 344.17 FAILURE OF VIEWER TO PERFORM DUTY; VIEWERS. PENALTY. 344.07 FAILURE TO ERECT OR MAINTAIN. 344.18 COMPENSATION OF VIEWERS. 344.08 RECORDED DIVISION;BINDING ON HEIRS AND 344.19 VIEWERS IN COUNTIES NOT ORGANIZED INTO ASSIGNS. TOWNS. 344.09 PARTY ERECTING MORE THAN SHARE. 344.20 TOWN OPTION. 344.01 FENCE VIEWERS. Supervisors in their respective towns, city council members in their respective wards, commissioners of public works in cities having a commission form of government, and city trustees in statutory cities are fence viewers. History: (7248)KL s 2748; 1921 c 25 s 1; 1973 c 123 art 5 s 7; 1985 c 265 art 6 s 1 344.011 EXEMPTION. A town board may, by resolution, exempt adjoining owners or occupants from this chapter when their land considered together is less than 20 acres. History: 1982 c 616 s 1; 1985 c 265 art 6 s 1 344.02 KINDS OF PARTITION FENCES. Subdivision 1. Legal and sufficient fences. The following are legal and sufficient fences: (a)fences consisting of at least 32-inch woven wire and two barbed wires firmly fastened to well-set posts not more than one rod apart, the first barbed wire being above and not more than four inches from the woven wire and the second barbed wire being above and not more than eight inches from the first wire; (b) fences consisting of at least 40-inch woven wire and one barbed wire firmly fastened to well-set posts not more than one rod apart, the barbed wire being above and not more than four inches from the woven wire; (c) fences consisting of woven wire at least 48 inches in height, and one barbed wire not more than four inches above the woven wire firmly fastened to well-set posts not more than one rod apart; (d)fences consisting of at least four barbed wires with at least 40 barbs to the rod, the wires firmly fastened to posts not more than one rod apart, the top wire not more than 48 inches high and the bottom wire 12 to 16 inches from the ground; and Copyright©2013 by the Office of the Revisor of Statutes, State of Minnesota.All Rights Reserved. 2 MINNESOTA STATUTES 2013 344.05 (e) fences consisting of rails, timbers, wires, boards, stone walls, or any combination of those materials, or streams, lakes, ditches, or hedges, which are considered by the fence viewers as equivalent to any of the fences listed in this subdivision. Subd. 2. Determination of kind of fence. If adjoining land owners disagree as to the kind of fence to be built on any division line, the matter must be referred to the fence viewers, who shall determine what kind of fence should be built on the line and order it built. Subd. 3. Special case. If the lands of two persons adjoin and the land of one is enclosed by a woven wire fence on all sides except the side forming a division line between the lands, each person shall erect and maintain a fence along one-half the total length of the division line. The fences must be similar in character and quality. History: (7249) RL s 2749; 1915 c 282; 1917 c 408 s 1; 1985 c 265 art 6 s 1 344.03 EXPENSE; EQUAL SHARES. Subdivision 1. Adjoining owners. If all or a part of adjoining Minnesota land is improved and used, and one or both of the owners of the land desires the land to be partly or totally fenced, the land owners or occupants shall build and maintain a partition fence between their lands in equal shares. The requirement in this section and the procedures in this chapter apply to the Department of Natural Resources when it owns land adjoining privately owned land subject to this section and chapter and the landowner desires the land permanently fenced for the purpose of restraining livestock. Subd. 2. [Repealed, 1989 c 335 art 4 s 109; 1Sp1989 c 2 s 8] History:RL s 2750; 1913 c 525 s 1; 1915 c 173; 1965 c 717 s 1; 1969 c 1129 art 3 s 1; 1971 c 24 s 38; 1985 c 265 art 6 s 1; 1989 c 335 art 4 s 109; ISp1989 c 2 s 8; 1994 c 623 art 1 s 40 344.04 FAILURE TO BUILD OR REPAIR; RIGHTS OF COMPLAINANT. If a person fails to build, repair, or rebuild a partition fence which the person is required to build or maintain, the affected party may complain to the fence viewers. The fence viewers shall give notice to the parties and examine the fence or look into the need for a proposed fence. If they determine that an existing fence is insufficient or a new fence is necessary, they shall notify the delinquent owner or occupant in writing to that effect and order the owner or occupant to build, repair, or rebuild the fence within a reasonable time. If the delinquent fails to comply with the order, the complainant may build, repair, or rebuild the fence and obtain reimbursement pursuant to section 344.05. History: (7251) RL s 2751; 1915 c 173; 1985 c 265 art 6 s 1 344.05 REPAIR COSTS RECOVERABLE. If a complainant builds, repairs, or rebuilds a fence according to section 344.04 and the fence viewers consider it sufficient, they shall give the occupants reasonable notice and an opportunity to be heard, determine the cost of the fence or repair, and give to the complainant who built, repaired, or rebuilt the fence a signed certificate of their decision and of the cost of the fence or repair and the viewers' fees. The complainant may demand, either of the owner or the occupant of the adjoining land where the fence was wanting or deficient, the viewers' fees and double the amount of the ascertained expense. If the owner or occupant does not pay that amount within one month after demand, the complainant may recover the amount, with interest, in a civil action. History: (7252) RL s 2752; 1915 c 173; 1985 c 265 art 6 s I Copyright©2013 by the Office of the Revisor of Statutes, State of Minnesota.All Rights Reserved. 3 MINNESOTA STATUTES 2013 344.10 344.06 CONTROVERSY; DECISION BY FENCE VIEWERS. If a controversy arises concerning the rights in partition fences of the respective occupants or their obligation to maintain the fences, either party may apply to the fence viewers, who, after due notice to the parties, may assign to each a share in the fence and direct the time within which the fence must be erected or repaired. The assignment may be recorded with the county recorder after which it is binding upon the parties and upon all succeeding occupants of the lands. History: (7253) RL s 2753; 1976 c 181 s 2; 1985 c 265 art 6 s 1; 2005 c 4 s 64 344.07 FAILURE TO ERECT OR MAINTAIN. If a party fails to erect or maintain the part of a fence assigned under section 344.06, the aggrieved party may erect and maintain the fence, and be entitled to double the cost of the construction and maintenance as ascertained and recovered in section 344.05 in the case of repairs. History: (7254) RL s 2754; 1985 c 265 art 6 s 1 344.08 RECORDED DIVISION; BINDING ON HEIRS AND ASSIGNS. All divisions of fences which are made by fence viewers under this chapter, or which are made by owners of adjoining lands, in writing, witnessed by two witnesses, signed and acknowledged by the parties, and recorded with the county recorder, are valid against the parties to the divisions and their heirs and assigns. History: (7255) RL s 2755; 1976 c 181 s 2; 1985 c 265 art 6 s 1; 2005 c 4 s 65 344.09 PARTY ERECTING MORE THAN SHARE. If there is a controversy between occupants of adjoining lands as to their respective rights in any partition fence and the fence viewers decide that either occupant has voluntarily erected or otherwise become the proprietor of more than that occupant's just share of the fence before a complaint was made, the other occupant shall pay for the share of the fence assigned to the other to repair and maintain. The value of the fence must be ascertained and recovered pursuant to section 344.05. History: (7256) RL s 2756; 1985 c 265 art 6 s 1; 1986 c 444 344.10 LANDS BOUNDED BY STREAM. If lands of different persons must be fenced and are bounded upon or divided by a stream or pond which, in the judgment of the fence viewers, is not in itself a sufficient fence, and if the viewers determine that it is impracticable, without unreasonable expense, for a partition fence to be made on the waters at the true boundary line, and if the occupant on either side fails to join with the occupant on the other side in making a partition fence on one side or the other, then the fence viewers, on application of either party, shall view the stream or pond, and, after giving due notice to the parties, determine, in writing, on which side of the stream or pond the fence must be erected and maintained, or whether partly on one side and partly on the other. If either party fails to build or maintain the assigned part of the fence according to the viewers' determination, the other party may build and maintain the fence, and the delinquent party must pay the charges and costs provided for in other cases in this chapter. History: (725 7) RL s 2 75 7; 1985 c 265 art 6 s I Copyright©2013 by the Office of the Revisor of Statutes, State of Minnesota.All Rights Reserved. 4 MINNESOTA STATUTES 2013 344.17 344.11 LANDS OCCUPIED IN COMMON. If one of the occupants of enclosed lands belonging to different persons in severalty, which have been occupied by them in common without a partition fence, desires that the part occupied by that person be occupied in severalty, and the other party fails to divide the land or to build a fence on part of the land when it has been divided, the party desiring it may have the land divided and assigned by the fence viewers in the manner provided in this chapter. History: (7258) RL s 2758; 1985 c 265 art 6 s 1; 1986 c 444 344.12 VIEWERS TO FIX TIME FOR BUILDING. If fence viewers have divided land and assigned fence responsibilities, they may set in writing a reasonable time for building the fence, having regard to the season of the year. If either party fails to build part of the fence within the time assigned, the other party may, after completing part of the fence, build the other part, and recover the viewers' fees and double the cost of building the other part, as determined pursuant to this chapter. History: (7259) RL s 2759; 1985 c 265 art 6 s 1 344.13 LANDS FIRST ENCLOSED. When unenclosed lands are afterwards enclosed, the owner or occupant of the lands shall pay one-half of the value of each partition fence extending upon the line between that person's land and the enclosure of any other owner or occupant. If the parties do not agree, the value must be ascertained by the fence viewers and stated in writing. If an owner or occupant fails to pay within 60 days after the value is ascertained and a demand made, the owner of the fence may recover the value and the cost of ascertaining it in a civil action. History: (7260) RL s 2762; 1985 c 265 art 6 s 1 344.14 VIEWERS WHEN FENCE ON TOWN LINE. If a partition fence is to be built on a line between towns, or partly in one town and partly in another, two supervisors, one from each town, shall be the fence viewers. History: (7261) RL s 2763; 1985 c 265 art 6 s 1 344.15 [Repealed, 1974 c 116 s 1] 344.16 DIVISION OR RECORDED AGREEMENT RUNS WITH THE LAND. If the line upon which a partition fence is to be built between unimproved lands has been divided by the fence viewers or by the recorded agreement of the parties, the several landowners, and their heirs and assigns forever, shall erect and maintain fences in accordance with the divisions. History: (7263) RL s 2765; 1985 c 265 art 6 s 1 344.17 FAILURE OF VIEWER TO PERFORM DUTY; PENALTY. A fence viewer who unreasonably fails to perform a duty required by this chapter shall forfeit$5 to the town or city and be liable to the injured party for all resulting damages. History: (7264) RL s 2766; 1985 c 265 art 6 s I Copyright©2013 by the Office of the Revisor of Statutes, State of Minnesota.All Rights Reserved. 5 MINNESOTA STATUTES 2013 344.20 344.18 COMPENSATION OF VIEWERS. Fence viewers must be paid for their services by the person employing them. The town board may by resolution require the person employing the fence viewers to post a bond or other security acceptable to the board for the total estimated costs before the viewing takes place. The total estimated costs may include the cost of professional and other services, hearing costs, administrative costs, recording costs, and other costs and expenses which the town may incur in connection with the viewing. History: (7265) RL s 2767; 1949 c 719 s 1; 1979 c 89 s 1; 1985 c 265 art 6 s 1; 2009 c152s6 344.19 VIEWERS IN COUNTIES NOT ORGANIZED INTO TOWNS. In counties not organized into towns, the county commissioners are fence viewers and are governed by this chapter, except that county commissioners shall not receive the per diem provided in section 344.18 but may be paid a per diem pursuant to section 375.055, subdivision 1, and their necessary expenses, including mileage in accordance with section 471.665. History: (7266) RL s 2768; 1975 c 301 s 6; 1985 c 265 art 6 s 1 344.20 TOWN OPTION. If eight or more landowners in a town petition the town board for a vote on a partition fence policy, the town board may adopt its own policy and procedures for dealing with partition fences, including enforcement procedures. The policy must be approved by the electors of the town at an annual or special town meeting, in which case this chapter does not apply in that town. This chapter applies to any partition fence lying on the boundary between a town which has adopted its own partition fence policy and any other political subdivision unless the other political subdivision is a town which has adopted a similar policy. History: 1982 c 616 s 2; 1985 c 265 art 6 s 1; 2004 c 228 art 2 s 9 Copyright©2013 by the Office of the Revisor of Statutes, State of Minnesota.All Rights Reserved.