City fence

ordinance

under

review

Non-compliance fence prompted review process

By RON LARSEN

Journal Staff Writer

NEW ULM -- A fence is a fence, of course, but how do you tell someone what a fence is?

That was the conundrum the City Council and the city's Inspections Department's staff fenced with for more than an hour Tuesday afternoon.

After all, it is one thing for a city official to have an image in mind of what would constitute a "fence" for ordinance purposes, but it's virtually impossible to describe to a property owner what a fence is and where it can be placed, Buildings Inspector Al Gag told the panel.

"So, because we rarely make on-site inspections of fences, we end up giving them a copy of the ordinance (when they apply for the conditional use permit) and let them figure it out for themselves."

The meeting was called to determine what changes should be made to the ordinance to make it more understandable and easier to enforce.

Also, the execution of the council's order that a fence recently built on Bob Webb's residential property violated the city's fence ordinance and should be removed had been delayed pending the council's fence ordinance review.

The first semantic stumbling block occurred in Subdivision 6, Paragraph A which reads: "No person shall erect, construct or replace any fence that is greater than thirty inches in height or twenty feet in length unless such person shall have secured a permit therefor from the City."

Gag told the panel he interpreted that as meaning that both conditions needed to be met in order for a permit to be required for its construction.

However, City Attorney Hugh Nierengarten disagreed, saying it was an "either/or" situation.

"Does that mean I've been breaking the law for not getting a permit for the 12-inch-high edging that goes around my garden because that's over 20 feet long?" Councilor Ruth Ann Webster asked.

Nierengarten responded that as the ordinance is now worded she would be. So, that was tabbed for change because Gag said he didn't want to have to tell everyone who has a garden that they need a permit.

But Paragraph B turned out to be more of a challenge, based solely on semantics.

"A fence within a front, side, or rear yard setback area may not exceed 48 inches in height if: 1. It is located closer than five feet from a permanent structure of one hundred twenty square feet or more on an adjoining lot; 2. Such structure is in existence at the time the fence is originally constructed; and 3. The fence is to be constructed parallel to, or substantially parallel to, the property line."

After Gag and Nierengarten came up with diametrically opposed interpretations of that paragraph, it was determined that removing the word "not" in the sentence and strategically inserting the word "not" in each of the numbered conditions would solve the problem.

The council's main concern with that paragraph was that fences shouldn't be blocking either emergency exits through egress windows or a homeowner's view from his window. Gag then proposed changing the word structure to dwelling.

The group then resolved a few inconsistencies in fence height in various locations in the yard, and then they tackled perhaps the most confusing part of the ordinance, Paragraph E which deals with situations requiring a restricted fence height.

E1. was perhaps the most confusing because it calls for using triangulation to determine where the fence will go and how high it can be. "Fences located within a front yard area of a corner lot shall not exceed thirty-six inches in height within a triangle formed by the two side lines of the two intersecting streets and a third line crossing the first two at points forty feet from their intersection."

Say, what?

The Inspections Department had supplied councilors with schematics that by using different colors showed graphically what E1 was all about. Pounding his hand on the schematic, Councilor Clark Tuttle demanded to know "why we aren't giving (permit applicants) copies of this rather than the ordinance which is useless?"

The reason, according to Gag, was that the schematic showed the prescribed distance between curb, boulevard, back edge of sidewalk and remaining distance to the end of the setback.

"The problem is that those dimensions aren't uniform throughout the city so we don't know if that's representative of the lot where the applicant lives," Gag explained. However, if it is the council's wish, we'll try to figure out something (better than a copy of the ordinance)."

Then, Gag briefed the councilors about fence placement as contained in the present ordinance.

"I'm not recommending any changes, but I felt the council should know, if they get questions, that a fence has to be set back 12 inches from the inside edge of a sidewalk. Another question is how close can a fence be to a side lot line. The answer is that you can go up to the lot line but not over it," Gag explained.

"As far as fencing in the back, I tell people to measure 15 feet in from the center of the alley because it's difficult to find the edge of the alley. If I tell them 5 feet from the alley, it doesn't get done right."

They also discussed whether the ordinance should regulate what types of fences could be installed, but nothing was decided.

When the discussion ended, Council President Dan Beranek turned to Nierengarten and asked, "Did we change anything that might affect Webb's situation?"

"No, he still has to remove it," Nierengarten said.