Construction OrdinanceCITY OF DUBUQUE, IOWA
MEMORANDUM
July 29, 1999
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Construction Ordinance - Michael T. Mentzer, 3725 Asbury Road
Mr. Michael Mentzer is requesting approval of a split rail fence to remain within the
public right -of -way in front of his home at 3725 Asbury road.
Prior to installing the fence, Mr. Mentzer contacted the City and he was advised he
could not build the fence in the public right -of -way. Despite this information, he
installed the fence, without any City permits.
Public Works Director Mike Koch is recommending denial of the request to allow
the fence to remain.
I concur with Mike Koch's recommendation and respectfully request denial by the
Mayor and City Council of Mr. Mentzer's request.
MCVM /j
Attachment
cc: Barry Lindahl, Corporation Counsel
Tim Moerman, Assistant City Manager
Mike Koch, Public Works Director
tui
Michael C. Van Milligen
CITY OF DUBUQUE, IOWA
MEMORANDUM
July 22, 1999
TO: Michael C. Van Milligen, City Manager
FROM: Michael A. Koch, Public Works Director
SUBJECT: Construction Ordinance - Michael T. Mentzer, 3725 Asbury Road
INTRODUCTION
The following is in response to a July 21, 1999 request of Michael T. Mentzer for
approval of a split rail fence to remain within the public right -of -way in front of his
home at 3725 Asbury Road.
DISCUSSION
Mike Mentzer has recently installed a cedar split rail fence in the public right -of -way
along the frontage of his property at 3725 Asbury Road. The fence was installed
approximately 18.5 feet into the Asbury Road right -of -way. The property line at this
location is 24 feet behind the back of the Asbury curb. A more common setback for
the right -of -way is from 9.5 to 1 1 .5 feet behind the curb.
Prior to installing the fence, Mr. Mentzer contacted the Planning Services Division and
was met at the site with one of the staff members. The staff member pointed out to
Mr. Mentzer that the fence could not be located within the right -of -way and provided
him a drawing indicating the property line and physically located property pins in the
area and actually located the line for Mr. Mentzer (see attached letter from Planning
Services dated July 22, 1999).
Despite this information, Mr. Mentzer proceeded to install the fence in the public right -
of -way, without any City permits from either the Engineering Division or the Planning
Services Division.
The location of the fence has been reviewed by the Engineering Division with respect
to the right -of -way, and the Planning Services staff for compliance with fencing
regulations of the Zoning Ordinance. The fence location is not compliant with
Engineering because of the right -of -way encroachment, or the Zoning Ordinance. Mr.
Mentzer is appealing the regulations as applied by the Engineering Division and
Planning Services Division, which Divisions are requiring that the fence be re- located
onto private property. A copy of a July 7, 1999 letter from the Planning Services
Division to Mr. Mentzer is attached.
Mr. Mentzer is petitioning the City Council to allow the fence to remain in its current
location, and has submitted a construction ordinance, insurance certificate, drawing
and photos of the split rail fence, as well as a letter of request to allow the fence to
remain in the public right -of -way.
The construction ordinance, if approved, provides for a revokable permit and further
requires Mr. Mentzer to assume all liability, defend the City, and hold the City harmless
of any claims which may result from the installation of the fence within the City right -
of -way.
RECOMMENDATION
Relocating the fence to 24 feet behind the curb would not create a hardship on Mr.
Mentzer, nor would this location be out of scale with the balance of other
improvements behind the curb on Asbury Road in this vicinity. This was a deliberate
avoidance of the City's permit processes which allowed him to place the fence where
he wanted it, regardless of City regulations. Allowing the fence to remain may also
have a tendency to encourage other type of encroachments along this section of
Asbury Road. The fence is located only 5'6" behind the curb, which will not allow for
the installation of a standard two -foot grass setback and a four -foot wide sidewalk.
Based upon all the above, I would recommend denial of the request to maintain the
fence in its current location in the public right -of -way. Relocation of the same fence
behind the right -of -way would meet all the necessary City requirements.
ACTION TO BETAKEN
The City Council is requested to review the petitioner's request and City staff's
recommendation and to deny the request to allow the fence to remain within the public
right -of -way.
MAK /vjd
Prepared by Jane Smith, Engineering Assistant
cc: Guy Hemenway, Planning Services Division
TO: Mike Koch, Public Works Director
FROM: Guy Hemenway, Assistant Planner
SUBJECT: Illegal Fence at 3725 Asbury Road
Please find attached a Notice of Violation issued to Mr. Michael P. Mentzer, 3725
Asbury Road, on July 7, 1999, regarding the construction of a fence in the public right -
of -way. The letter indicates that in an R -1 Single - Family Residential zoning district
fences may be built along the property line, or elsewhere on the property, but not
across the lot line onto the public right -of -way. The Notice of Violation also indicates
that an inspection by Planning Services staff revealed that Mr. Mentzer had
constructed a fence over the lot line onto the City of Dubuque public right -of -way. The
Notice of Violation allowed seven days for removal of the fence.
A week prior to issuance of the Notice of Violation, I met Mr. Mentzer on his lot at 3725
Asbury Road. At that time post holes had been dug and posts placed loosely in the
holes, but the fence had not been fully constructed. I gave Mr. Mentzer an aerial photo
showing the location of his lot line relative to the street and I was able to locate two
survey pins in the field that clearly defined his front property line. I also gave Mr.
Mentzer a fence brochure and my card, and made him aware that the fence could not
legally be built in the public right -of -way. Subsequently, Mr. Mentzer completed
construction of the fence which was built in the public right -of -way. He was then issued
the Notice of Violation.
This memo is provided for your information. If you have any questions, please contact
me.
GH /mkr
CITY OF DUBUQUE, IOWA
MEMORANDUM
July 22, 1999
Planning Services Department
50 %Vest 13th Street
Dubuque, Iowa 52001 -1864
Michael T. Mentzer
3725 Asbury Road
Dubuque IA 52002
NOTICE OF VIOLATION: Illegal Fence
Dear Mr. Mentzer:
According to the tax assessor, you are the owner of property located at 3725 Asbury
Road. On June 29,1999, an inspection was made of your property revealing a
violation of the City Zoning Ordinance.
VIOLATION: Your property is zoned R -1 Single - Family Residential (Section 3 -3.1 of
the City of Dubuque Zoning Ordinance). Fences are permitted in an R -1 District;
however, they must be located along your lot line or on your property only (Section 2-
8.1). Inspection revealed you have built the fence over your lot line and onto the City
of Dubuque public right -of -way. Private fences are not permitted in public right -of -way.
ORDFR TO COMPLY To comply, you must remove the fence from public property
within 7 days of receipt of this Notice or we will begin formal enforcement action.
Failure to comply with this Order will result in the issuance of a Citation. court costs
and a fine without any additional warning or correspondence. The minimum fine is
$250.00 per day for each day the violation continues to exist.
APPEAI Should you feel there is an error in this Order, you have a right to appeal
before the Zoning Board of Adjustment. An appeal must be filed in this office (with a
fee of $50.00) within 30 days of receipt of this Notice.
Please call me if you have any questions regarding this Notice and Order.
Sincerely,
71
Guy Hemenway
Assistant Planner
.'HE CITY OF
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July 7. 1999
cc: Jane Smith, Sidewalk Inspector, City of Dubuque
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ORDINANCE NO. -99
AN ORDINANCE AUTHORIZING /c% e. / /
CONSTRUCT S 7/7 / .couaQ
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That 1 % c4a ' / T ,- e the owner of the premises
known as . 7.15 4e v. IC ' / Dubuque, Iowa, and legally described as 107 ,t coa Gar AT
v /Ashor+n/ R74 S'e< „,),/ 7® 5 `f be and they are hereby granted the revocable permit and
thority to construct and maintain a S //i t ; / c e under the terms and
conditions set forth in this Ordinance.
Section 2. That such construction shall be done in accordance with plans
heretofore submitted by permittees and approved by the City Manager, under the
supervision and direction of the City Manager, and in accordance with all applicable
state and federal laws and regulations, and the Ordinances of the City of Dubuque.
Section 3. That the permission herein granted is expressly conditioned on
permittees' agreement to:
a. Assume any and all liability for damages to persons or property which
may result from the existence, location, installation, construction or
maintenance of said C., c-c ; and
b. Procure and maintain in force during the term of this permit a policy of
liability insurance as set forth in the attached Insurance Schedule; and
c. Pay on behalf of the City of Dubuque, all sums which the City of
Dubuque shall become obligated to pay by reason of the liability imposed
upon the City of Dubuque for damages of any kind resulting from the
location, installation, existence, construction or maintenance of said _
�a vt sustained by any person or persons, caused by accident
or otherwise to defend at its own expense and on behalf of said City any
claim against the City of Dubuque arising out of the location, installation, /
existence, construction or maintenance of Crifint ; / / Lnce_and to
pay reasonable attorney fees therefor; and
d. Indemnify, defend and hold the City of Dubuque free and harmless from
any and all claims, loss, liability and expense for death and /or injuries to
third persons or damages to property of third persons, or for damage to
any property of the City of Dubuque which may occur as a result of or
in connection with the location, installation, construction, maintenance
and repair of the facility, work or improvement permitted herein.
Section 4. That the permission herein granted is expressly conditioned upon
permittees' further agreement that should the right and privilege herein granted be
rescinded or revoked by the City Council, permittees, or their successors in interest,
as owners of the abutting property, shall within ten (10) days after receipt of written
notice from the City Manager, so to do, at their own expense, remove said
fi and in the event of their failure to do so, the City of Dubuque shall
be authorized to remove said Q at permittees' expense and dispose
of the same, and the permittee shall have no claim against the City or its agents for
damages resulting from the removal of said 4� -..c -J2
Section 5. That permittees covenant and agree that the revocable permit herein
granted does not constitute an approval of the design, erection, location, construction,
repair or maintenance of said facility and said permittees hereby covenant and agree
not to assert such claim or defense against the City of Dubuque in the event of claim
asserted for death, personal injuries and /or property damage against the permittees
arising out of or in any way connected with the location, installation, construction,
design, repair and maintenance of the facility herein permitted.
Section 6. This Ordinance shall become effective and the rights hereunder
accrue to tY,rtie.e / 77.9 /2.e when this Ordinance has been adopted by the
City Council and the terms and conditions thereof accepted by permittees by
acceptance endorsed on this Ordinance.
Section 7. That the City Clerk be and she is authorized and directed to file at
permittees' expense a copy of this ordinance in the Office of the Recorder in and for
Dubuque County, Iowa.
1999.
Attest:
Passed, approved and adopted this day of
Mary A. Davis, City Clerk
7
/Terrance M. Dugg j (Mayor
ACCEPTANCE OF ORDINANCE NO. -99
The undersigned having read and being familiar with the terms and conditions
of Ordinance No. -99, hereby, for themselves, their successors or assigns,
as owners of the abutting property, accept the same and agree to be bound by the
conditions and agreements therein contained to be performed by permittees.
By:
Title:
Dated: 7/7G r ct.
COMMERCIAL GENERAL LIABILITY:
INSURANCE SCHEDULE
1. Any policy of insurance or certificate of insurance required hereunder shall be
with a carrier authorized to do business in Iowa and a carrier that has received
a rating of A or better in the current Best's Rating Guide.
2. Any policy of insurance required hereunder shall provide for a thirty -day notice
to the City of any material change or cancellation of the policy prior to its
expiration date.
Pa Ala. A s//-/9 - a
3. &rip /n ee / Teta / C Ce) shall have is insurance agent or company certify in
writing that any policy of insurance required herein with an aggregate limit of
liability has not been reduced by paid or reserved claims at the time of issuance
of policy or certificate.
Css Co
4. E n p ems /%u /ca, / shall furnish copies of the following policies to the City,
witIc limits not less than the following, or greater if required by law, and shall
also furnish certificates of insurance from all independent contractors or
subcontractors hired by No e or any independent contractor or
subcontractor hired by the independent contractor or subcontractor, which
certificates shall provide evidence of coverage for limits not less than the
following, or greater if required by law:
General Aggregate Limit
Products - Completed Operation Aggregate Limit
$1
Personal and Advertising Injury Limit
Each Occurrence Limit
Fire Damage Limit (any one occurrence)
Medical Payments
OR
Combined Single Limit $2,000,000
Medical Payments $ 5,000
$2,000,000
$1,000,000
,000,000
$1,000,000
$ 50,000
$ 5,000
Coverage is to include: occurrence form, premises /operations /products/
completed operations coverage, independent contractors' coverage, contractual
liability, broad form property damage, personal injury, City of Dubuque named
as an additional insured with 30 days written notice of change or cancellation.
•
3.
4.
COMMERCIAL GENERAL LIABILITY:
INSURANCE SCHEDULE
1. Any policy of insurance or certificate of insurance required hereunder shall be
with a carrier authorized to do business in Iowa and a carrier that has received
a rating of A or better in the current Best's Rating Guide.
2. Any policy of insurance required hereunder shall provide for a thirty -day notice
to the City of any material change or cancellation of the policy prior to its
expiration date.
shall have its insurance agent or company certify in
writing that any policy of insurance required herein with an aggregate limit of
liability has not been reduced by paid or reserved claims at the time of issuance
of policy or certificate.
shall furnish copies of the following policies to the City,
with limits not less than the following, or greater if required by law, and shall
also furnish certificates of insurance from all independent contractors or
subcontractors hired by or any independent contractor or
subcontractor hired by the independent contractor or subcontractor, which
certificates shall provide evidence of coverage for limits not less than the
following, or greater if required by law:
General Aggregate Limit
Products - Completed Operation Aggregate
Personal and Advertising Injury Limit
Each Occurrence Limit
Fire Damage Limit (any one occurrence)
Medical Payments
OR
$2,000,000
Limit $1,000,000
$1,000,000
$1,000,000
$ 50,000
$ 5,000
Combined Single Limit $2,000,000
Medical Payments $ 5,000
Coverage is to include: occurrence form, premises /operations /products/
completed operations coverage, independent contractors' coverage, contractual
liability, broad form property damage, personal injury, City of Dubuque named
as an additional insured with 30 days written notice of change or cancellation.
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