Tips for Drafting City Licensing Ordinances

Cities license certain businesses and activities to protect the public health and welfare. Often a licensed activity is hazardous in its own right or may be harmless on its own, but prone to hazardous side-effects.

An example of a direct hazard relates to dog licensing - cities license dogs to prevent roving animals that bite and spread diseases (particularly rabies). In contrast, cities regulate massage parlors to prevent harmful side-effects. Nothing about massage is inherently dangerous, but certain criminal activities related to prostitution and human trafficking are frequently associated with massage parlors. Such side-effects can pose a danger to participants, encourage criminality and create neighborhood blight.

Cities also regulate certain businesses, because state law mandates licensing. Liquor licensing is an example of mandated licensing. Cities may opt to be completely “dry” and not have liquor for sale at all within their boundaries. But all “wet” cities, who choose to allow liquor sales must license retailers. State law goes even farther to establish the types of licenses and even some fees.

Conversely, state law prohibits city licensing in other instances. For example, most cities are not permitted to license plumbers anymore. Generally, when city licensing is prohibited, a state license is available. In these instances, the state has expressed an interest in creating uniform standards for statewide licensing. Before drafting a licensing ordinance, it is important to verify that city authority to license exists. A good place to check for authority would be Minn. Stat ch. 412 and the LMC Handbook for Minnesota Cities chapter on licensing: http://www.lmc.org/media/document/1/chapter11.pdf

Once an activity is deemed hazardous, licensing serves one or all of the following purposes:

 Alerts the city that someone in the city is engaged in the hazardous activity or business;

 Allows the city to conduct background checks on persons conducting the business;

 Allows the city to impose reasonable rules on the activity that are a condition of the license;

 Requires the licensee to carry insurance adequate to protect the public from harm resulting from the business of activity.

Drafting Suggestions

When drafting a licensing ordinance, emphasis should be placed on finding language that addresses the hazards posed by the business or activity. The following questions can serve as a “checklist” to help you draft licensing provisions.

 Does state law require specific provisions or language in our local ordinance? For example, state law sets numerous criteria for city tobacco license provisions. See Minn. Stat. § 461.12.

 What type of hazards does this type of activity pose to the community? What nuisance side-effects can it potentially create? This will probably be the lengthiest part of your ordinance. For example, liquor establishments can create noise, litter and light pollution nuisances. Specific provisions should be drafted to address these issues. See our previous entry on drafting city liquor ordinances at: http://lmccodification.blogspot.com/2010/09/is-your-liquor-ordinance-tight-enough.html

 Would a background check on the persons conducting the business increase public safety? For example, background checks are required by the state for liquor licensees and common for massage parlors, pawn shops and door to door peddlers.

 Are there persons who should be exempt from the licensing requirements? For example, it may be unnecessary to require a dog license for the city police dog. In addition, state law exempts blind persons from tobacco licensing fees.

 How will we recover our costs in administering the ordinance requirements? For example, through licensing fees or reimbursement for background check costs.

 What penalties do we want to impose for ordinance violations? In addition to criminal penalties, are administrative sanctions authorized or required? For example, administrative sanctions are required for tobacco and liquor licensees.

 Would insurance requirements increase public safety? For example, state law requires liquor licensees to carry dram shop insurance. Insurance may also be a good idea for public dances, dangerous dogs and body art technicians.

Finally, every licensing ordinance should contain procedures for imposing penalties, revoking licenses and dealing with bad conduct by licensees. Establishing procedures provides licensees with due process – a fair chance to be heard and dispute claims against them. This may reduce conflict and litigation related to licensing. This section of the ordinance should provide at minimum:
 A process for notifying the licensee that the city is considering revoking their license or imposing a penalty (for example, notice sent by mail 10 days before consideration of the matter);

 A process to allow the licensee to request a hearing on the matter where they may dispute statements made against them;

 A hearing process before a disinterested party (before council or city staff);

 A process to inform the licensee of the final decision on the matter (for example, a written summary mailed to the applicant within 20 days of the hearing).

Conclusion:

Licensing is an important tool for all cities to limit hazardous activities and their secondary effects. Licensing is often an area involving an interaction of local ordinance and state law, so ordinances must be drafted with care. However, once state law requirements are met, ordinance drafting should focus on the harms posed by the activity and mitigating those dangers.

Picture provided by http://www.publicdomainpictures.net/view-image.php?image=3348&picture=pencil

Vroom! Vroom! City Ordinances, Golf Carts, Scooters & Mini-Trucks

These days residents have many options for getting around town. With all the motorized scooters, mini-trucks, mini-bikes, golf carts and ATVs on the market, some might worry that city streets are starting to look a little crowded. Cities have authority to regulate many of these new vehicles and decide whether or not to allow them on city streets.

Proponents of mini-vehicles and golf carts often stress improving accessibility and mobility for their users. The US Department of Transportation has put together an extremely comprehensive document on the problems facing seniors and the disabled in maintaining mobility. Golf carts as a potential solution are discussed at page 355 at this link: http://goo.gl/MMC0

In addition, many supporters of mini-vehicles highlight their fuel efficiency and the environmental benefits of their use. Some of these issues were discussed in depth at a recent city of Duluth council meeting at this link: http://goo.gl/waWe

The type of regulation city ordinance may impose depends on the type of vehicle. Cities must permit some use of some types of motorized vehicles on city streets and may permit some others by passing a local ordinance. For some types of vehicles, state statute sets specific ordinance criteria.

Vehicles the City Must Allow:

Cities must allow motorized wheelchair operation, including scooters, tricycles and similar devices used by a disabled person for mobility purposes. Minn. Stat. § 169.212 permits these devices to be operated anywhere a pedestrian may walk and on streets with a speed under 35 mph where a sidewalk is not available or unsafe. Cities may authorize and regulate the use of motorized mobility devices on city streets that have a speed higher than 35 mph by ordinance.

Cities must also allow motorized foot scooters commonly used by teens and children for recreation on city streets. Riders must comply with state requirements for safety at Minn. Stat. § 169.225 and cannot ride on sidewalks. Cities can prohibit the motorized scooters on trails designated for foot traffic only.

Vehicles That May Be Authorized by Local Ordinance:

Cities may authorize and regulate the use of golf carts, smaller ATVs and mini-trucks on city streets. Cities must adopt an ordinance to regulate these vehicles. Without a local ordinance, these vehicles are not permitted on city streets.

When adopting an ordinance permitting one or all of these vehicles, it is important to know that state statute sets criteria that must be in the ordinance. For example, local ordinance must require golf carts operating on streets to display a slow moving vehicle emblem. In addition, cities must require insurance on all three types of vehicles.

These statutory requirements can be found at Minn. Stat. § 169.045. In addition, LMC has a model ordinance for these vehicles that meets the state law requirements. This model ordinance can be found in the Appendix of the LMC memo “Special Vehicles Operating on City Streets” at this link: http://www.lmc.org/media/document/1/special_vehicles.pdf

Finally, it is important to note that city ordinance will only apply to city streets. State and county streets will continue to be governed by regulations adopted by those governing bodies.

Conclusion:

Additional in-depth help on researching this topic can be found in the LMC memo “Special Vehicles Operating on City Streets” mentioned above. Since the many types of vehicles available and terminology to describe them can be confusing, the LMC memo includes pictures for ease of reference. Minnesota House Research also has a helpful memo titled “Motorized Scooters and Other Low-Power Vehicles” at: http://www.house.leg.state.mn.us/hrd/pubs/scooter.pdf

Photo courtesy of the National Archives on Flickr at: http://www.flickr.com/photos/nationaalarchief/4192749411/sizes/s/in/photostream/

City Ordinances on Feeding Wild Animals

Some nuisances are easy to spot – they are as large as the rusting car in the neighbor’s front yard. Some nuisances are a little harder to define and their far-reaching effects more difficult to explain. A nuisance of this type that cities often struggle with is the feeding of wild animals or strays.

Problems Associated with Unattended Feeding:

Feeding of wild animals in rural areas is a common practice. However, in urban areas with smaller lots, the activity can quickly become a nuisance that cities wish to regulate. Feed left out for “desirable animals” such as stray (or feral) cats, dogs and deer also may attract the following:

1) Rats;
2) Raccoons;
3) Skunks;
4) Coyotes (who do not attack humans, but may attack small cats and dogs);
5) Bears (on occasion depending on locale).

It is important to note that even “desirable animals” for whom the proffered food is intended may become nuisances in large numbers. Deer can quickly ruin neighboring lawns, trees and gardens. Stray cats who linger nearby for food left outside can quickly multiply.

Attracting wild animals to a neighborhood can create some obvious problems, such as property damage (for example, raccoons tearing apart garbage), increased risk of attack (even wild turkeys may become aggressive during breeding season) and disease (for example, rabies and the roundworm parasites carried by raccoons http://www.dnr.state.mn.us/livingwith_wildlife/raccoons/index.html).

However, some less obvious problems with feeding wild animals can be just as problematic. Feeding can alter normal patterns of movement and congregation among animals. The more food, the denser the congregation of animals looking to eat becomes. This can spread disease among the animals and cause reproduction rates to skyrocket. Becoming too used to humans may make animals more susceptible to harm.

City Authority to Regulate Feedings & Sample Language:

Cities are specifically authorized to regulate the keeping of animals at Minn. Stat. § 412.221 Subd 21. Cities can and have adopted ordinances limiting feeding of wild animals. The City of Coon Rapids was recently in the news for its new ordinance (See http://tinyurl.com/29s39b3)

Here are some sources for sample ordinances from Minnesota cities on feeding wild and stray animals:

• City of Arden Hills, Chapter 4, Section 420.10: http://tinyurl.com/24gb4vt

• City of Madelia, Chapter 9, Section 92.110 http://www.madeliamn.com/Ordinance/26.php#JD_92.080

• Minnesota Basic Code Chapter 9, Section 91.19: http://tinyurl.com/2ew79fz

Some cities merely regulate the feeding of certain types of wild animals such as deer or waterfowl. For example:

Hermantown City Code, Chapter 6, Section 640.06 Feeding Wild Bears Prohibited. No person shall intentionally feed or attempt to feed a wild bear within the city. No person shall place any feed for any wild animal out of doors if a bear has been attracted to the feeding source.

Conclusion:

Often people leaving food out for animals do not understand the far-reaching effects of their actions. Some cities supplement their ordinance provisions with educational materials. For example, the City of Minnetonka posted this online information about wild turkeys: http://www.eminnetonka.com/news.cfm?story_id=WildTurkeys201009. Cities wishing to develop educational efforts about the problems with feeding wild animals may also like to review the DNR’s extensive materials on this subject. The DNR materials offer detailed information on numerous animal types and are available at this link: http://www.dnr.state.mn.us/livingwith_wildlife/index.html

Picture provided by: http://www.publicdomainpictures.net/view-image.php?image=3145&picture=doe-on-golf-course

Quick Tips on Understanding & Writing Ordinances

Recently I had the chance to speak to a group of new city clerks. Their excitement for a speech called “Quick Tips on Understanding & Writing Ordinances” took me a little bit by surprise. I was speaking just before lunch, and I expected several attendees (at least) to attempt to sneak out for a bite. Instead, several actually stayed for questions and missed most of their lunch.

I guess I shouldn’t have been surprised – ordinance drafting is a unique task found only in local government. Previous private sector jobs could easily prepare you for contract management, budgeting and personnel supervision – but it’s hard to think of anything analogous to ordinance drafting.

So here are my quick tips for understanding and writing better ordinances – whether you’re a novice or an expert.

Tip One:

Always keep in mind that your mission with writing an ordinance is to inform the reader what type of conduct is allowed or not allowed. Your goal is clarity. Your goal is not to impress (or confuse) the reader with your advanced knowledge of the more obscure reaches of the English language. This means avoiding legalese and using cross-references sparingly. Consider using pictures or diagrams to supplement text (see my previous blog entry on images in ordinances at http://tinyurl.com/2evqg58).

Tip Two:

Use definitions excessively. If you feel positive that you know the definition of “lawn and garden center” – there is a 100% chance that someone else will feel positive you’re wrong. A Minnesota city was once required to litigate all the way to the MN Supreme Court over this exact issue. See Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604 (Minn. 1980). The best way to avoid conflicts over language is to define words carefully and often.

Tip Three:

Be cautious about using samples or models. Google has put a world of information at our fingertips – not all of it is good. Be wary of any sample that is older than 2-3 years. Ordinances have a very short shelf life, as they are affected by changing state laws and court cases. Be especially wary of older land use ordinances. Also be wary of out of state ordinances. Cities in other states may be subject to dramatically different laws than in Minnesota. For example, state laws may dictate very different holding periods for seized animals or abandoned cars.

Finally, be cautious about using model ordinances created by special interest groups or non-profits. Sometimes the agenda of the model ordinance writer is not at all clear from looking at the text (for example a model electronic billboard ordinance written by the billboard industry). Using models from special interest groups may leave regulation gaps that do not favor the city’s interests.

Tip Four:

Have your city attorney review your ordinances. This is especially true of land use, nuisance and ordinances affecting free speech (such as adult uses, signs, assemblies such as parades and protests, etc). Paying for your city attorney to review ordinances up front is always less expensive than defending a lawsuit further down the road.

Conclusion

Ordinance drafting can be a daunting task, but it doesn’t need to be difficult. A focus on clarity and definitions can go a long way. If you have another tip that has helped you, feel free to share in the comment section.

Image provided by: http://www.publicdomainpictures.net/view-image.php?image=3348&picture=pencil

City Zoning Ordinances Can Be Improved with Images & Diagrams

When drafting the LMC Zoning Guide a few years ago, I included a section called “suggestions for drafting a readable zoning ordinance.” My number one tip was “use graphics, tables, maps and illustrations wherever possible.”

Describing sight triangles in legal language can be arduous. Explaining in text where to begin measuring a fence can be complex. Often painstakingly detailed and accurate text can leave even the most earnest readers still scratching their heads saying “now wait a minute, I think I got it – but let me read it again.” Images and graphics can improve readability for citizens and officials by a hundred fold.

Why is readability in ordinance language important? Readability – the use of clear concise language – reduces staff time in explaining nuance. Readability also decreases cases of accidental non-compliance. These are the cases of the sympathetic, well-intentioned citizen who “thought they installed grandmother’s access ramp in the right place.” But now it will cost them $10,000.00 to move everything. These types of cases can demand extensive enforcement efforts from city staff and create difficult political situations for city council members. It is much easier on the front end to take the time to craft ordinances that are easy to understand. Images can help.

Sample Images Used in City Ordinances:

Here are some great examples of where a well placed diagram is worth a thousand words:

1. City of Minnetonka, MN Zoning Code, Section 300.02, Definitions:

Building height” - the vertical distance above a reference datum measured to the highest point of the coping of a flat roof or to the deck line of a mansard roof or to the average height of the highest gable of a pitched or hipped roof. The reference datum shall be selected by either of the following, whichever yields a greater building height:
a) the elevation of the highest adjoining sidewalk or ground surface within a five foot horizontal distance of the exterior wall of the building when such sidewalk or ground surface is not more than 10 feet above lowest grade. (No. 1)
b) an elevation 10 feet higher than the lowest grade when the sidewalk or ground surface described in item 1 above is more than 10 feet above lowest grade. (No. 2) (Figure 3)

2. City of Minnetonka, MN Zoning Code, Section 300.02, Definitions:

“Cul-de-sac” - a street with a single means of ingress/egress and having a turnaround at the end. A turnaround may be in the form of a circular “bubble” of pavement or an internal “looped” street. (Figure 4)

3. City of Cary, North Carolina Zoning Code:

9.1.5 Computations


(A) Area Computation of Individual Signs


The area of a sign face (which is also the sign area of a wall sign or other sign with only one face) shall be computed by means of the smallest rectangle that will encompass the extreme limits of the writing, representation, emblem or other display, together with any material or color forming an integral part of the background of the display or used to differentiate the sign from the backdrop or structure against which it is placed, but not including any supporting framework, base, bracing or decorative fence or wall when such fence or wall otherwise meets the regulations of this chapter and is clearly incidental to the display itself. For a single wall on a single-occupant building, all pieces of information or other graphic representations on that wall shall be measured as though part of one (1) sign, encompassed within one (1) rectangle, which may not exceed ten (10) percent of the total wall area to which the sign is affixed. For a single wall on a multi-occupant building, the area of signs shall be computed using these principles, and each individual sign shall not exceed ten (10) percent of the total wall area to which the sign(s) is affixed.

Common Concerns Related to Adding Images

Two main concerns arise when dealing with images in ordinance text. First, it is important to note that images and graphics shouldn’t replace or conflict with carefully drafted text.

When incorporating maps and images into an ordinance, it is advisable to specify in a separate ordinance provision that the text takes precedent in the event of conflict. For example, “illustrations and ‘principles of interpretation’ included in the code shall be used in interpreting the relevant provisions, but where the text conflicts with an illustration or 'stated principle,' the text shall control.” (See City of Cary, North Carolina Code Appendix A, Chapter 9 § 1.4 (http://tinyurl.com/22w9y3l).

Secondly, cities who are eager to use images may encounter resistance from a surprising source – their codifiers. This past April, when I attended the Government Training Services Land Use lecture “So You Want to ReWrite Your Zoning Ordinance,” this was a concern voiced by both the presenters and audience members.  Some codifiers may be using software that doesn’t have the capacity to incorporate images. This can be an unfortunate surprise for a city, if this ocurs after it has drafted an ordinance or hired a codifier.

As a result, when hiring a codifier, cities should directly ask their vendor if they have the ability to incorporate images into codebooks. Even if the city isn’t interested in doing this now, it may wish to at some point in the future. In addition, it may be helpful to ask the codifier to provide samples of codebooks it has recently finished that incorporate images. Not all codifiers approach this task in the same way.  Cities may find that they have pointed preferences for how images should be include.  For example - should an image be directly in the text?  only available in an appendix?  linked electronically?

Conclusion

A simple picture can go a long way in making complex ordinance provisions understandable. Images simplify the regulatory process for all people involved – city staff, council and residents. Some cities are doing innovative things with images in their ordinances. I would particularly recommend reviewing the sign code provisions for the City of Cary, North Carolina, as an example of great innovation. Cary uses LMC’s codification partner, American Legal Publishing. The ordinance is available on the American Legal website at this link: http://tinyurl.com/22w9y3l.

City Regulation of Smoke Part 2: Recreational Fires

Welcome to Our Series on Regulating Smoke

One thing I’ve noticed as a city attorney over the years – where there’s smoke, there is likely to be fire, but also heated complaints to city hall. Hard to tell which burns hotter from some of the meetings I have attended. Smoke can be the result of residential heating, recreational fires or industrial activities. Whatever the source, smoke is a frequent topic of city regulation. This article is the second in a 4-part series of LMC Codification blog entries on city ordinances and smoke regulation. This week's focus is on recreation fires – typically small fires (under 3 feet) for roasting marshmallows and singing camp songs.

Recreational Fires

Controversy over recreational fires – and the smoke they generate - are common at city halls in Minnesota and nationally. The Sun Press carried a story from Mounds View just this past week:

http://www.mnsun.com/articles/2010/07/16/mounds_view/news/mv15council.txt

In Mounds View neighbors are upset about recreational fires on an adjacent property being carried on "six or seven nights a week” and sometimes at 2 pm. They recently brought their concerns to City Hall, as reported in the press. The smoke generated by the fires is bothering the neighbors – one of whom is asthmatic. The neighbors are also concerned because the adjacent property owner appears to be burning “roofing, siding, decorated logs (treated with arsenic and other chemicals), carpeting, clothing, garbage and green wood.” According to the neighbor testimony before city council, aside from the smoke, these materials “smell bad.”

State law already prohibits the burning of garbage and certain prohibited materials. This includes rubber, plastics, chemically treated materials, tires, etc. This is discussed extensively in the LMC Memo “Open Burning in Cities” (available at this link: http://www.lmc.org/media/document/1/openburning.pdf).

Common Local Restrictions

Many cities choose not to regulate recreational fires. Commonly, recreational fires are exempted from the permit requirements for other types of open burning. The LMC Model Ordinance on open burning takes this approach (linked above). However, some cities do choose to regulate recreational fires for public safety reasons and to limit the affects of smoke on neighboring properties.

Common restrictions on recreational fires include:

• Requiring a permit;
• Limiting the number of permits issued per property per year;
• Limiting the number of fires burning simultaneously on a property;
• Requiring setbacks from buildings and property lines (i.e. 50 feet);
• Limiting times for burning (i.e. from 8am-midnight);
• Setting fuel requirements (i.e. clean, dry wood); and
• Prohibiting fires when wind speeds are high (i.e. over 7 mph).

Sample Language Regulating Smoke

In reviewing recreational fire ordinances, some cities do include language that attempts to directly regulate smoke that may become an irritant to neighbors.

For example, this language from Cottage Grove, MN:

The fire chief may order any recreational fire to be immediately extinguished if the fire poses a nuisance to surrounding residences. A nuisance is deemed to exist if the fire generates flying embers that pose a hazard to property or generates smoke or odors that unreasonably interfere with the use or enjoyment of neighboring properties.

The City of Waconia, MN uses this language:

Burning Prohibitions.

Any smoke generated from a Recreational Fire that becomes a nuisance or irritant shall be due cause to extinguish the fire, regardless of the fuel source.

The City of West Concord, MN uses this language:

920.02. The City Fire Chief or Police Officer and/or designee may perform periodic on-site inspections.

920.03. Open fire for recreational purposes must satisfy the following requirements:

The Fire Chief, Police Officer or its designee is authorized to require that recreational fires be immediately discontinued if smoke emissions are offensive to occupants of surrounding properties or if the Fire Chief, Police Officer or its designee determines that the fire constitutes a hazardous condition.

Subd. 9. Smoke: A recreational fire shall be extinguished immediately if it generates smoke that becomes a nuisance to adjacent or nearby properties, including imposition of smoke into a neighboring structure.

Conclusion

The City of Edina website notes that “in recent years, backyard fires have become more common in suburban cities, where the confines are much tighter than you’d find in the 'great outdoors.'" The new popularity of recreational fires has prompted many cities to consider adopting new regulations on smoke and fire. However, in addition to new regulations, many cities are concurrently urging old fashioned courtesy to neighbors. For example, on the burning permit webpage for Minnetonka, it is noted that “the city of Minnetonka asks its residents to be considerate of their neighbors when having a recreational fire, such as smoke traveling onto adjoining property where breathing problems with the residents may exist.”

2010 State Law Changes Affecting City Codes

We have reached the end of the 2010 MN state legislative session. Here is a "hit list" of new laws that may require changes to local city codes.

This entry is meant to complement the LMC Intergovernmental Relations Department’s 2010 Law Summaries available on the League of MN Cities website at http://www.lmc.org/page/1/currentlaw-summaries.jsp.

I have summarized the law change briefly and listed the page number in the 2010 Law Summaries to consult for more detail.

1. BUILDING CODES, NUISANCES AND LAND USE

Property Maintenance/Nuisance Structure Ordinances. Minn. Stat. § 326B.121 amended to affirm city authority to adopt local ordinances requiring structures to be maintained in a safe and sanitary condition or in good repair. Local ordinance may establish timelines for completion of exterior work on a structure, so long as the regulation does not require completion of exterior work earlier than 180 days following the issuance of the permit. This statute addresses city concerns after City of Morris v. Sax Investments, Inc., 749 N.W.2d 1 (Minn.,2008) and Wessman v. Mankato, No. A08-0273. (Minn. App.2008). (See page 4 of the 2010 Law Summaries for more information).

Sign Ordinances. Minn. Stat. § 211B.045 amended. City must permit all noncommercial signs of any size to be posted in any number from 46 days before the state primary in a state general election year until ten days following the state general election. Previously this statute allowed the postings beginning August 1. (See MN Laws 2010 Chapter 184 Section 42 at this link: https://www.revisor.mn.gov/laws/?year=2010&type=0&keyword_type=all&keyword=211B.045&doctype=Chapter&id=184).

Shoreland Ordinances. Minn. Stat. § 103F.351, subdivision 4, is amended permit the MN DNR to engage in rulemaking to set conditional use permit standards for zoning and land use ordinances for lands protected by the federal Wild and Scenic Rivers Act, and the federal Lower St. Croix River Act of 1972. These rules will pre-empt local requirements. (See page 39 of the 2010 Law Summaries for more information).

2. CITY ADMINISTRATION

City Administration Ordinances/City Charters. Minn. Stat. § 410.191 and § 412.02 were amended to prohibit the mayor or city council members from being employed by the city in a permanent full-time position. The city does not need to adopt an ordinance to effectuate this provision, but conflicting ordinance or charter provisions may need to be repealed. (See page 23 of the 2010 Law Summaries for more information).

3. LICENSING

Liquor Licensing & Regulation Ordinances.

Minn. Stat. § 340A.409 Subd. 1 amended to raise minimum insurance requirements for retail liquor licenses.

Minn. Stat. § 340A.409 Subd. 4 amended to exempt wholesalers who donate wine to an organization for a wine tasting conducted under section Minn. Stat. § 340A.418 or Minn. Stat. § 340A.419 from the minimum insurance requirements.

Minn. Stat. § 340A.419 amended to allow the tasting of malt liquor and other spirits at wine tastings.
(See page 42 of the 2010 Law Summaries for more information).

Tobacco Licensing & Regulation Ordinances. Minn. Stat. § 297F.01, Minn. Stat. § 325F.77, Minn. Stat. § 461.12, Minn. Stat. § 461.18, Minn. Stat. § 609.685 amended to allow city ordinance to regulate tobacco related products (including new devices for snorting, sniffing and inhaling) along the same lines as traditional smoking tobacco. Minn. Stat. § 609.6855 was created to read to criminalize selling/providing tobacco related products and the sale of nicotine delivery products to minors. (See page 34 of the 2010 Law Summaries for more information).

Tattoo, Body Piercing & Body Art Ordinances. New law Minn. Stat. § 146B was created to regulate body art establishments (including piercing, branding, scarification and tattooing). City ordinance may regulate these establishments, provided that their requirements are as strict as the state requirements. Individuals working at the facility must obtain a state professional license. (See page 34 of the 2010 Law Summaries for more information).

4. UTILITIES

Sewer/Water Ordinances. Minn. Stat. § 326B.43 amended to permit the State Plumbing Board engage in rulemaking to set minimum statewide standards for all new plumbing installations performed anywhere in the state. These rules will pre-empt local requirements for installations. (See page 4 of the 2010 Law Summaries for more information).

Air Conditioning Standards. Minn. Stat. § 326B.52 & § 326B.53 amended to permit the State Plumbing Board to engage in rulemaking to set minimum statewide standards for all new water conditioning servicing and water conditioning installations, including additions, extensions, alterations, and replacement. These rules will pre-empt local requirements for installations. (See page 4 of the 2010 Law Summaries for more information).

5. VEHICLES AND STREETS

Abandoned & Junk Vehicles/Impoundment Ordinances.

Minn. Stat. § 168B.06 was amended to exclude weekend and legal holiday days from the time period for giving written notice of a vehicle being impounded. (See page 71 of the 2010 Law Summaries for more information).

Minn. Stat. § 168B.06 was amended remove this language “or has a household income at or below 50 percent of state median income” from the provisions allowing certain low-income persons to retrieve belongings from impounded cars. The same language was removed from the notice of impound provisions. (See page 71 of the 2010 Law Summaries for more information).

Minn. Stat. § 169.041 was amended to clarify authority to tow vehicles in numerous situations, including where a vehicle blocks signage, driveways, hydrants and alleys. (See page 73 of the 2010 Law Summaries for more information).

New State Traffic Offenses.

Minn. Stat § 169.15 was amended to designate “gridlocking” as a state traffic offense. Local ordinance on this subject is pre-empted. (See page 73 of the 2010 Law Summaries for more information).

Minn. Stat. § 169.26 was amended to designate pedestrian entrance into railroad crossings when the bars are down or when a signal is audible as a state traffic offense. Local ordinance on this subject is pre-empted. (See page 73 of the 2010 Law Summaries for more information).

All-Terrain Vehicles. Minn. Stat. § 84.92, Subd 9 & 10 changed the definitions related to weights for Class 1 and 2 all-terrain vehicles (ATV). Local ordinances may have utilized the previous definitions and need to reviewed. (See MN Laws 2010 Chapter 361 Section 15 & 16 at this link: https://www.revisor.mn.gov/laws/?year=2010&type=0&keyword_type=all&keyword=84.92&doctype=Chapter&id=361).

Street Regulation Ordinances/Heavy Vehicle Permits. Minn. Stat. § 169.801 - 169.87 were modified related to heavy vehicles. If the city regulates vehicle weights on its streets or issues permits for heavy vehicles pursuant to city ordinance, these provisions should be reviewed. (See page 74 of the 2010 Law Summaries for more information).

CONCLUSION

State law changes can often require a concurrent local change to city ordinance. In fact, a busy legislative year can poke numerous holes in an otherwise sound local code. Out of date codes can create unwanted liability for a city or may render needed provisions unenforceable. On a more positive note, sometimes legislative changes grant new powers and authority to cities—also requiring changes to local ordinance.

Hot Topic: Fence Ordinances

The Star Tribune recently ran an article identifying a new trend in home improvement – the construction of large “privacy” fences in residential neighborhoods. These fences tend to be in the 6 to 8 foot range, dwarfing the standard front yard white picket fence of yesteryear. The article notes “the passion for fences has led some cities to refine their ordinances to prevent people from erecting too-tall fences or building fences with the ugly side facing out.”

The article muses that the fence trend may be related to the recent problems in the real estate market. Homeowners, who in a hotter housing market may have moved to avoid the sight of “their neighbor in the hot tub,” can’t move – so they build a fence instead. State law provides only limited regulation of fences. For example, Minn. Stat. § 561.02 prohibits “spite fences” as a private nuisance. The lack of state regulation means that most fence regulation will be an entirely local, city matter.

The Star Tribune article prompted me to review the cache of fence ordinances at LMC. I was curious also, to investigate whether or not challenges to city fence regulations were common. Challenges have occurred – most notably the recent unpublished case of State v. Enright, A09-795 (MN Ct. App. 2010)(this case is discussed in previous blog entries). Generally, the city’s authority to regulate fences for the public welfare has been upheld in Minnesota and nationally.

A. City Regulation of Fences.

Why do cities regulate fences? There is certainly an aesthetic concern at play. Tall, front yard fences and poorly maintained fences can have a negative effect on neighborhood surroundings. However, most cities do not regulate out of concern for aesthetics alone. Common public safety concerns leading to fence regulation are:

• Preventing tall fences from obstructing clear view on streets for vehicles, children and pedestrians;
• Greater ease of access for fire personnel;
• Clearer view of streets for patrolling police,
• Prohibiting dangerous materials (such as barbed wire and electrified fencing) from use in residential areas;
• Prohibiting poorly maintained fences (which may fall into the right of way or on passersby).

In reviewing the cache of LMC ordinances, the most common features in fence ordinances are:

• Limiting height in front yards (usually under 4 feet);
• Allowance for taller backyard fences (usually 6 feet);
• Regulation of fences on corner lots that may limit sight lines/sight triangle;
• Fence construction materials requirements (some list either prohibited materials, permitted materials or both);
• Requiring the fence installer to construct fence solely on their own property (and demonstrate property lines);
• Requiring the “finished” side of the fence to face outward towards the neighbors;
• Requirements for fence maintenance and repair;
• Setbacks from property lines or natural features such as lakes.

B. Fence Ordinances and Void for Vagueness Concerns.

As demonstrated in Enright (cited above), fence ordinances are susceptible to challenges that they are void for vagueness. All ordinances, including fence ordinances, must be clearly drawn as to give an ordinary person an idea of the type of conduct prohibited. State v. Newstrom, 371 N.W.2d 525 (Minn.,1985).

1. Definitions: Fence

In reviewing numerous city fence ordinances, I noted that some significant definitions were missing. This is potentially problematic should an ordinance be challenged in court. Specifically, some ordinances did not define the term “fence.” If the term fence is undefined, you may run into problems enforcing your “fence” ordinance against properties where the clever property owner insists they have constructed “walls.” In addition, you may wish to consider – can shrubbery be a fence (when planted along a property line)? How about a trellis or a landscaping berm?

2. Definitions: Good Repair

Cities also tend to require that fences be “kept in good repair.” It may be helpful to spend some time thinking about criteria that indicate good/bad repair and put those specific criteria into the ordinance itself. For example, does good repair mean the fence is painted or treated with a weather resistant coating? Free of rust? Has strong supports so it won’t fall? Does a fence in bad repair have missing slats, holes or protruding pieces? General language such as “good repair” is permissible in an ordinance – and needed so that the ordinance can apply to a variety of situations. But an ordinance must also contain direction to the staff enforcing the ordinance that limits their discretion to avoid arbitrary enforcement. State v. Newstrom, 371 N.W.2d 525 (Minn.,1985). As noted in State v. Reha, 483 N.W.2d 688 (Minn.,1992), one person’s concept of “clean” or “well-maintained” can be wildly different from another’s.

Here is some good sample language related to fence maintenance from the Apple Valley City Code § 155.351.

C) Fence regulations. A fence is a public nuisance and prohibited accordingly if it does not comply with the following requirements:
(1) The fence shall be firmly fastened and anchored in order that it is not leaning or otherwise in the stage of collapse.
(2) The fence shall be maintained in sound and good repair and free from deterioration, loose or rotting pieces, or holes, breaks, or gaps not otherwise intended in the original design of the fence. The fence shall be free from any defects or condition which makes the fence hazardous.
(3) All exterior wood surfaces of any fence, other than decay resistant woods, shall be protected from the elements by paint or other protective surface coating or treatment, which shall be maintained in good repair to provide the intended
protection from the elements.
(4) No fence section shall have peeling, cracked, chipped or otherwise deteriorated surface finish, including but not limited to: paint or other protective coating or treatment, on more than 20% of any one linear ten-foot section of the fence.
(5) Any link fence, where permitted, shall be constructed and maintained in such a manner that no barbed ends be located at the top of the fence.

3. Definitions: Standards for Measuring Height

It may also be helpful to check if your ordinance specifies how height will be measured. Specifically, will the height be measured from the bottom of the fence or the grade? For example, this seems like a good provision from the Lake Elmo City Code § 154.129:

(B) Fence height in interior yards. No fence shall be constructed exceeding 72 inches in height measured from grade in interior yards; and, any portion of such fence above 42 inches measured from grade shall be open to light and air over 75% of the surface area.
(D) Grade defined. The grade from which fence height measurements are calculated shall only be from either natural grade or grade modified responsive to a grading plan approved by the city; and, shall not include the height of berms or introduced increases in ground elevation that would raise the effective fence height over that which would be otherwise permitted by this subchapter, except that a combination of raised grade and fence that would exceed in sum the fence height permitted by this section may be specifically approved by the City Council as an element of a subdivision plat or commercial site plan approval establishing specific property grading and topography.

This type of definition will prevent the clever/determined homeowner from shoring up an earthen berm underneath the actual fence structure intended to increase the height of the fence.

C. Enforceability and Potential Conflicts with Other Provisions:

In order to facilitate ease in enforcement, the city may wish to consider any conflicts that may arise among chapters in its code book. Many cities may have a standalone fence ordinance as a portion of their zoning or nuisance provisions. Other cities have fencing provisions scattered throughout the code. It is important to make sure that all the fence the provisions harmonize. For example, do your general fencing requirements take into account other ordinance provisions for fencing in dangerous dogs? Do they take into account required fences for private recreational facilities such as pool and tennis courts? How about screening in industrial/commercial areas for outside storage or refuse collection areas?

You may also wish to consider (and build into your ordinance) areas where different fencing regulations may be appropriate. For example, you may consider ordinance provisions that allow:

• Residents on busy highways to build taller fences abutting the road;
• Residents near commercial or industrial uses to build taller fences;
• Agricultural districts to utilize different fencing materials.

Recognizing that a “one size fits all” approach may not work for your city when drafting an ordinance can reduce the inevitable requests for zoning variances and ease administration.


D. Conclusion

LMC has sample fence regulations in its files going back to the 1920s. As a result, I’m not so sure that the Star Tribune has identified a “bonafide” new trend in privacy fences. However, the article serves as a nice reminder to review and consider older fence ordinances. These ordinances, just like the fences they regulate, could always be spruced up with a new coat of paint.

The Star Tribune article referenced herein is available at this link:
http://www.startribune.com/lifestyle/homegarden/95161789.html?page=1&c=y

Here is a link to help you find the Lake Elmo and Apple Valley City Codes (used as samples above): http://www.amlegal.com/library/mn/index.shtml