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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 E - M- aL1 [JTt, July 7. 1999 cc: Jane Smith, Sidewalk Inspector, City of Dubuque Service People Integrity Responsibility Innovation Teamwork LC' c.o _ .- CEO rL �/J �eR.4/Yt1 d 4 ar 3r1A5 a 4 . o3 A -7 a7 a7•le 4, . 3 7 a_ 4 -� crA • -a- r ot p� a 4_K ` .ems R . �. can,- -1r-t %( _ u _,gea-a -' oat- eStc 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. /Lt if c /a / 4 / /Ouse l AP /A %/.(e FLA B .e 4 r e C c) A FeNc /s r li 2.6 u //S . /oS/ c us/ , Al o 60 S s.0 /3 _ 760o & / (-Ju ni o IL( C -ed i 6roca / 7;- tC,: 3 • urr/ Ao /e,e, Ca) 7 115 / c LS% .-cos PAei //j /`rw.. / G( A. / a2' / / a n ,.( / // teu A / 5; X /oo l (.WrcC S,CC Cc;4 /& et k % w o ,'-u or we e s 5 f? a Si, (20h/45 i9.', u 4? 74 e D iI 9/" vVL o / CH e- /ash «te Rat Ads A4,4 a e n , a ci.lrc y eS As 4/15 c—e 4 / /I.(e £ Jr6l k ✓'L o g 197-€ C(/k. /tK 7 -S CH 1 2 / 4 /