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NOV 10 2005 10 : 28 AM FR HINSHAW&CULBERTSONLLP3348888 TO 4707#752031#9522 P . 03 II-10-05 09:46am From-�05S d BARNETT 449�0 T-614 P.u3/U3 h-luz - Thomas J. Barrett,r�sq. M O S S & B A R N E T T Novembei 10,2005 � Profess,onal �.ssoclzc�on Page 2 We understand that staff considers the �ates subject w thc; six feet height limit that applies i4 fences. However, Thc code regulates gates in conjun.cTion wirh monum�nts,no� in conjtuzction �irh fences. "�hz langua�e of Section 7$-1405(8) spccifically re�utates entrance monum�nts and parc h of The secrion rCfers Zo gates. Here, the bates are clydrly a parc of the en.uance monument �ystem, and noj gans of a fence. �either gare exceeds the eight fooz heigh� limitation found in Section 78-14U5(8)h. Th� ordinance allows them. t�estherically and physically, the gates can be considered as appurtenances io The monuments,not to a fence. Th� rel�vant code section does no�characterize them as fences. At most, ihz ordinance Ieavrs room for construing thz �ates as tenccs. lt may be ambi�uous or incorrlplere, and th� City is addTessing thac urlce�r[ainLy. Nonetheless, as a maner of law, the orciinance mu.st be construed in f2�vor of�properry owner and in a mariner which limits th.e scope af Lhe restriction on the use of the prop�ny. Therefore, the height limi[is eight feet. A,pplication of ihe propo�ed six foot height limit, or of a questionable interpretatian of The existing code �o the alrezdy desi�ncd, built, installed and pa�nted gates would cause excessive, ut�ecCsSary harm to th� owner and conuactors. Unfortunately, there is no cost-Cffectivz practical way Lo make the tops of the �ates only six feet from the ground. Our client would have to start over. 7he c;ost would be xn exce�5 of�44,OOU considerin�The amounts already invested in designing and manufacTuring the �ates, removal, rzdesign, remanufactiu'ing, installing re,-placement gac�s, and modifying� monumenu. t�lrhnugh cost alone may not determinc�he legal is�ues, these damag�s indicate the signifieance of the issue for the owner and our client. Given that th� hei�hCs of zhe main and side gates con�orm zo the relevanY cad� provision,tha��he monumet�t and ;ate installations are essentially complete, and that the Ciry rcc:ogni.zes rhat rhere is a gap in the code; it is ent;rely reasonable to altow the owner to use rhe gates as built. The hazm to the owner af an adv�rsc interpretation �f the current code ou�wzighs the harrn.Fo the City of ailowing ihe irn�grated monum�nis and gates ac rhe propeny, and simultaneausly modiiyin� the code so that fu�ure �ates comply with Th�fence stiandards. I look f'o�ward to �iscussing this marter with you. Very truly yours, �� Paul B. Zisla PBZ/mscc cc: Mr. 1im Anthony dz35tia��