07-915Council File # ��
Green Sheet # 3044173
RESOLUTION
OF SAIN7 PAUL, MINNESOTA
Presented by
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1 BE IT RESOLVED, that the Councii of the City of Saint Paul hereby certifies and approves the July 31,
2 2007, decision of the Legislative Hearing Officer on an appeal of a fence permit for the following address:
3
4 Propertv Appealed
6 1559 Cumberland Street
A pep llant
Helen Lamb-Hampton
7 (owner of 1551 Cumberland Street)
8 Decision: Appeal granted that the fence permit dated July 10, 2007 for property at 1559 Cumberland
9 Street should not haue been issued by DSI-Licensing.
Benanav
Bostrom
Hazris
Thune
Adopted by Council: Date
✓
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Adoprion Cettified by Co il Secretary
By:
Approvedb aya Date �� '�
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Requested by Department of:
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Form Approved by City Attomey
B
Form Approved by Mayor for Submission to Counci]
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� Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet �
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CO �ouncil
Date Initiated: '
'19-SEP-07 � Green Sheet NO: 3044173
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Contact Person & Phone:
Marcia Moertnond � � 0
266-8570
Assign � i
Must Be on Council Agenda by (Date): I Number ,'
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For
Routing � 3
Doc. Type: RESOLUTION Order �
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E-DOCUment Required: N � '
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Document Contact: Racquel Naylor �
ConWCt Phone: 266-8573 �
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7otal # of Signature Pages _(qip All Locations for Signature)
Personal Service Contracts Must Answer the Following Questions:
Approving the dec�sion of the Legislative Hearing Officer on an appeal of a fence permit at 1559 Cumberland Slreet.
�dations: Approve (A) or R
Pianning Commission
CIB Commitlee
Civil Senrice Commission
L Has this personlfirm ever worked under a contract for this depadment?
Yes No
2 Has �h�s personlfirm ever been a city empbyee?
Yes No
3. Does this personlfarm possess a skill not normally possessed by any
current aty employee?
Yes No
Ezplain afl yes answers n� separate sheet and attach to gree� sheet
�ncil
Gouncil De➢artmeo[ Director
Cifv Clerk
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Initiating Problem, Issues, Opportunity (Who, Wha[, When, Where, Why):
Advantages If Approved:
Disadvan[ages If Approved:
Disadvantages If Not Approved:
Transaction:
Funding Source:
Financia l Information:
(Explain)
Activity Number.
CosVRevenue Bodgeted:
September 19, 2007 9:11 AM Page 1
6 7-9lS
MINUTES OF THE LEGISLATIVE HEAR.ING
Appeal of a Fence Pernut at 1559 Cumberland Avenue
Tuesday, July 31, 2007
Room 330 City Hall, 15 Kellogg Boulevazd West
Marcia Moermond, Legislative Hearing Officer
STAF'F PRESENT: Thomas Riddering, Department of Safety and Inspections
The hearing was called to order at 3:05 p.m.
Ms. Moermond explained that the owner has filed an appeal under Chapter 18 of the City's
Legislative Code. That is where she would file an appeal of a decision or detemunation of staff.
Thomas Riddering reported that Anthony Carter applied for a permit to build a fence along one
edge of his property. The Hamptons own a foot wide easement on the same side of the property.
The easement is for access to the backyard. Mr. Carter's permit showed a fence along the
property line which would separate the easement from the Hampton's property. An easement is
the right to use someone else's property for a specific purpose. It does not permit someone from
building a fence as long as it does not prevent the easement owner from utilizing that property
for the purpose stated in the easement. There is still an eight foot easement. Mr. Carter is
proposing to put a fence where you would enter his property and leave his property and go to the
Hampton's property. Mr. Carter understood he could not prevent the Hamptons from using the
property to access the backyard. Mr. Riddering approved the permit because it did not appear to
prevent the Hamptons from gaining access to the backyard. If the Hamptons built a garage in the
backyard and brought in a large truck that would not fit in the eight foot easement, they would
need to use both properties and easement to access their backyard. They would have a right to
take down that fence as long as the fence does not interfere with whatever access they needed in
their backyard. Then, it did not violate that easement. That is why he approved the permit.
The following appeared: Helen Lamb-Hampton, 1551 Cumberland Avenue, owner, and Gail
Roddy. Ms. Haxnpton stated that if the fence is near her line, she only has six feet, and she
would be driving forward but up a hill. There is no way to get in on that eight feet with a truck
and then turn into a gate to go into her backyard. If he would agree to put the fence over four
feet on that easement, then she would have ten feet from her house to the fence, and she could
get into the backyard. Ms. Roddy added that Ms. Hampton wanted to get it resolved before a
fence is put in and taken down again.
Ms. Moermond stated there was a stop work order listed on this to make sure the fence did not
get constructed. Mr. Riddering responded he has not seen it since the stop work order was
issued. The fence has not been put up yet.
The following appeared: Anthony and Cassandra Carter, 1559 Cumberland Street, owners. Mr.
Carter stated that the stop work order was issued before he applied for the permit. He took the
fence down and was putting it right back up. Someone called and said he was putting up a fence
without a permit, but he explained that he was putting up the fence that he had taken down. The
inspector said that he could not. That is why Mr. Carter applied for a permit.
LEGISLATIVE HEARING MINi1TES -1559 Cumbertand Street Page 2
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Mr. Riddering asked was the fence being pnt up in a different locarion. Mr. Carter responded
that he was putting it up on the property line that he proposed. Mr. Riddering responded that
would require a pernvt. DIS responded to a complaint. It was one of the inspectors who said to
stop work until they get a permit.
Ms. Hampton stated that Mr. Carter took her fence down, wluch was very expensive. It is in his
gazage. She asked is he Yo put that fence back up or put his own fence up. Ms. Moermond
responded those quesfions are outside of her juriscliction. She can only deal with the yes and no
on the permit issuance. The property between them will have to be separately litigated.
Looking at the map, said Ms. Moermond, it looks like there are eight feet. She asked is the
house on the lot line. Mr. Riddering responded the house is about six feet from the property line.
Mr. Carter responded that the house is exactiy 7'/z feet offthe property line. Tt would be 7%z from
the proposed fence,
(Ms. Moermond and Mr. Riddering looked at a map.)
(Nlrs. Carter submitted photographs of the property. Ms. Hampton declined to see the
photographs.)
Mr. Carter stated that the only objecrion is that it goes against the rule of hauing a fence in the
easement. A person cannot urilize the eight feet, with a fence four feet in the middle of it. Then,
they are making the easement smaller than what it is. Mr. Riddering responded that is not true;
the easement continues to exist where it is. If there is a fence down the middle of the easement,
Ms. Hampton would still own the same easement. There would just be a fence there. If she
needed the full width of the easement, then she could take the fence down. If the fence was in
the middle of the easement, she would have enough room on her property.
Mr. Carter said that his wife heard the proposal from Tyrone Terrill (Department of Human
Rights). When it comes to the driveway situation, they need a minimum of eight feet to have a
driveway. If they want to have total access to the easement, it is best to put the fence on the
property line. Then, they still have a full eight foot easement. Or, move the fence in maybe a
foot into the property line. Then, if they were to build a gazage, they would have S feet or 8'/2
feet. It has to be within the boundaries of the person putting it up. They just bought the house
and they want to guazantee that they have access to what they bought.
Ms. Moermond stated she cannot deai with the old fence nor the location of the old fence. She
can only deal with whether a fence permit shou]d haue been issued in this circumstance. Ms.
Aampton responded that she would prefer a fence, but if if is going to cause all the trouble, then
neither one of them can have a fence.
Mr. Riddering said that if Mr. Carter had proposed to put a fence a foot from his property line,
Mr. I2zddering would not have issued the permit. Even thoagh it was within his property, it
would not Ieave enough room on the easement side for the Hamptons to gain access to their
backyard. Only the fact that zt was on the property line would enable them to continue ta use
that easement.
LEGISLATIVE HEARING MINLITES —1559 Cumberland Street Page 3
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Mrs. Carter stated that Ms. Hampton did not want the fence back. She sent Ms. Hampton an e-
mail from Mr. Terrill about the fence. Ms. Moermond responded that she is confused about how
Mr. Terrill from Hmizau Rights is involved in a driveway-fencing issue. Mr. Carter responded
that Ms. Hampton contacted him along with the City Councii, North End, etc.
Anthony Carter, Sr., 1575 Western Avenue North, Anthony's father, appeazed and stated that
Ms. Hampton would have to clarify if there was any intent to get a gazage built and if she is
awaze of any kinds of limitations to size of the lot. There is not a lot of room currently. What is
confusing is that the garage issue is pazamount to the location of the proposed fence. Mr,
Riddering responded the easement is for access to their yard for whatever purpose they want or
don't want. They would be able to build a two car garage if they want ta They have a ri�t to
access their yard. They do not have to prove they intended to build a gazage in order to access
that property. The law would require a standazd of reasonableness.
Mr. CarPer (Sr.) stated that there could be a fence or gate that would give them access, still fit in
the pernneters of Yheir rights, and being sti11 reasonable. Ms. Hampton responded she cannot get
in with a gate with the land being the way it is. The land is sloped. The lot is much higher. If
she is coming in on the fence side, she wili be going up the side of a mountain to get in. The
truck would be down in his yard.
Mr. Riddering stated that if they needed to puli into their yard, they needed to pull in cioser to
the house and the Carters would haue to use the fence. There is a win-win situation. The owners
could split the different. The Carters deed four feet of property to the Hamptons and the
Hamptons surrender their easement. Then, there wauld be a fence in the middle and no
easements. They would have the room they need to get into their backyazd and everybody has
what they want. The Carters would gain by no longer having an easement.
Mr. Carter (Sr.) asked does the owner still retain the rights because the fence line and the access
to the backyard from the easement are really the issues. Whether or not there is a slope to the
topography, is not an issue. The access is the owner's responsibility. Mr. Riddering responded
the access is Ms. Hampton's legai right.
Mr. Carter (Jr.) stated that he purchased the land whether the easement is there or not. Mr.
Riddering is proposing him to b ve away something that he purchased, said Mr. Carter.
Ms. Moermond stated that the owner purchased the land with an easement on it. He purchased it
with full knowledge that the property rights were abrogated by the easement. It existed, it was
there, the owner bought it, and it is part of the deaL It is like buying a house next to the airport,
the person knew the airport was there. Mr. Carter {Jr.} said that he didn't know about the
easement until after they closed with the house.
Ms. Moermond stated that the buyer needs to beware. Also, this shauid have been disclosed.
This easement is lagal and everything says that they do have rights to use that bit of property.
Mr. Carter (Jr.) responded that he is not disputing that.
LEGISLATIVE HEARING MINUTES —1559 Cumberland Street Page 4
07-915
Ms. Moermond stated the issue in front of her is if the City should have issued a fence pemut for
that section lmowing that there was an ob}ection to the issuance by someone whose property
rights aze affected by the development of the fence. Ms. Moermond is going to grant the appeal
that the fence perxnit should not have been issued because the owner has a right to determine if
the existence of the fence affects her ability to use the property. That is not for the City to
deternvne.
Mr. Carter (Jr.) stated that ifthe ruling is based on the future project that future project was
suppose to be outlined in the easement. The easement does not outline future installation of
driveway litigation rights, such as who will get hurt in the driveway. When he did the research
on the easement, he found he could not block an easement with a fence, he could not hinder an
owner from using it. It also said the easement must outline current and future endeavars, which
this easement does not. If she wanted to put in a garage, the `if' should have been put in the
easement.
Ms. Moermond stated they should direct their disagreement with Councilmember Helgen (Ward
5) who represents the azea, and copy his colleagues on the Council.
Mr. Carter (Jr.) said that lies have been told to them since they bought the house. Two weeks
ago, the owner said that she owned the property unti] the title company disputed her, and now the
owner is saying that he is blocking her from the easement.
Ms. Moermond stated she has a letter from June 13 and May 24 addressed to Mr. Carter (7r.)
from Ms. Hampton's attorney discussing pointedly the existence of the easement. Mr. Carter
(7r.) responded that it has been going on since March. He meant that up until two weeks, Ms.
Hampton was still debating ownership.
Ms. Hampton responded that when her husband and she tried to purchase the eight feet, it took
from 1981 to 1985, and they thought they owned it. When Mr. Carter bought the house and this
issue came up, Ms. Hampton looked at her papers and found out that she did not own the land.
She was surprised that her husband let that go through because that was not like him. He never
would have gone for an easement. She paid $800, which was $100 a foot.
Mrs. Carter asked can her five and ten yeaz old play in the yard and can their balls go into her
yard. Ms. Hampton responded that she does not mind it.
Mr. Carter (Sr.) stated it would be a miscarriage of justice for the homeowner to not put a fence
on the property line if it were not for the contingent possible use of his backyard in the future.
Ms. Moermond responded she would not interpret it that way, but they could talk to an attorney
about tYus issue. It is about the owner feeling that her ability to use the properly she has an
easement on is abrogated by the existence of the fence in the middle of it. The reasonableness of
the gate and the fence situation is more hers (Ms. Hampton's) to determine than the building
officials. She would haue to make that situation wark for herself. She feels like it would not
work. That could be litigated further.
LEGISLATIVE FiEARING MINi7'TES —1559 Cumberland Street Page 5
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Mr. Carter (Sr.) stated an issue Iike that could make the property owner's rights null and void.
Ms. Moermond responded that when a person acquires a property, that person also has the abiliry
to sell it. When the ownez acquired that property, the right to use that eight feet had been given
away before he got it. That is one of the rights that got diminished.
In summary: Ms. Moermond granfed the appeai that the fence permit dated July 10, 2007,
should not have been issued for 1559 Cumberland Street.
The hearing was adjourned at 3:45 p.m.
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