08-10-2015 Council Minutes - Laserfiche WebLink

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MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, August 10, 2015 7:00 o'clock pm. 4. REQUEST FOR ADMINISTRATIVE APPEAL: NYGARD FENCE VIEWING (continued) The fence viewers made their determination based on a viewing of the fence and discussions with Jay Nygard and Peter Lanpher. The fence viewers determined that the fence was not originally ordered to be constructed by the fence viewers, the fence in question is not one of the types of fences described in Minnesota Statutes, and Mr. Nygard did not share in any of the costs associated with the construction of the fence. It was never contemplated by either parties that the fence would be a partition fence. In addition, the fence is located completely on Mr. Lanphor's property. Barnhart stated based on those criteria, the fence viewers did not feel the fence was a partition fence and subject to the requirements of MN States 344. Mr. Nygard disagrees with that decision and has requested the City Council review the matter. Jay Nygard, 1386 Rest Point Road, stated he disagrees with the fact that he never said it was not a partition fence from day one. The fence divides the property, which is the definition of a partition fence. In the City's letter of denial, the City claimed the fence is totally located on the neighbor's property, there is no agreement between the parties, and that he did not originally share the cost, which are all true. The letter also says that the fence was not originally ordered constructed by fence viewers, Nygard stated in his view a fence viewer cannot order somebody to construct a fence just like the City cannot order somebody to build something. Nygard stated this situation is quite disturbing to him since there is no legal basis for anything the City says and that they are making it up. Nygard stated he is not sure how the City can actually get to the point to say that these are the actual determiners of what a partition fence is and that the City has nothing behind what they say. Nygard stated there is no statute, no ruling, and nothing from the League of Cities. Nygard indicated he was able to find something from the MN House of Representatives in the MN fence Law information brief written by the research department, who would be the people that are there to determine the intent of our legislators and laws. In regard to fence viewing, Paragraph 3 on Page 4 states: fence viewers do not determine exactly where, on or near a property line, a partition fence should be located. Nygard noted the language says on or near and that it does not say on a property line. Mr. Nygard stated that clearly shows that the MN House of Representatives intended partition fences to be located not solely on a property line but on or near a property line and that therefore the City's ruling is erroneous according to State Statute and the House of Representative Research Department. Nygard stated he would also like to note that although they have talked about how things do or do not apply, or that maybe the ordinance is clumsy or the statute is clumsy, that is all irrelevant because it says in the same brief that the statute generally applies to all property owners throughout the state, which would include he and his neighbor. Nygard stated furthermore, it seems that the City Council Members who attended the viewing did not really know what they were there for and that it is alleged the fence is illegal. Nygard noted the fence has been measured by the City Council people, there is an e-mail from Melanie Curtis in 2012 that says the fence is noncompliant, has been noncompliant from day one, and was denied a variance when they attempted to get a variance, but yet the fence is still standing. Nygard questioned how that could not be illegal when City Staff has said it was noncompliant, the fence viewers measured it, and that it is an illegal fence. Page 3 of 32