Ordinances Can Help Cities Preserve Streets

The need to maintain street infrastructure is a pressing and real concern for many cities in these tight budget times. It’s no secret that city streets cost a lot of money. The cost of street building materials is linked closely to the cost of oil – as oil prices rise, so do infrastructure costs. Even small street repairs can carry a large price tag.

In recent news reports, the American Society of Civil Engineers estimated the unfunded cost of repairing and updating the nation's roads, bridges, railways, ports, water systems and other critical assets at $2.2 trillion. (See http://tinyurl.com/2uqwsjl).

Since city streets are so expensive to build and repair, it makes good sense to use all the tools available to cities to protect existing roads. Ordinances are one tool available. City ordinances can help cities reduce the wear and tear on city existing streets – thereby reducing the need for costly repairs and extending the life of roads. Here are some suggested ordinance provisions aimed at protecting streets:

Heavy Load Restrictions:

Minn. Stat. § 169.87 allows cities to impose weight restrictions for trucks and commercial vehicles on city streets. In addition, weight restrictions may be imposed on all vehicles when the street, by reason of deterioration, rain, snow, or other climatic conditions, will be seriously damaged or destroyed by the use. Restrictions must be imposed by local ordinance and signage must be added to streets before the restrictions take effect. Local restrictions will not apply to:

• some implements of husbandry;
• school buses and HeadStart buses;
• some trucks transporting milk;
• some garbage and recycling vehicles; and
• some city vehicles (such as fire trucks).

Violation of city weight restrictions may subject a vehicle driver (or owner) to stiff civil penalties. In addition, Minn. Stat. § 169.88 requires the driver (or owner) to compensate the city for the damage to the street.

Once weight restrictions are in place, cities may also permit heavier loads pursuant to Minn. Stat. § 169.86. Terms for issuance of permits should be stated in local ordinance. In issuing a permit for a heavier load, cities may:

• prescribe conditions for operation of the vehicle to prevent undue damage to the road;
• require insurance, bond or other security in an amount necessary to compensate the city for any injury or damage to any roadway or road structure;
• require insurance, bond or other security in an amount necessary to compensate third parties for any injury or damage to persons or property.

The ability to permit heavier loads when needed, allows cities to set reasonable weight limits, while still retaining a degree of flexibility to accommodate special projects or events.

Damage from Negligence and Overt Acts:

Minn. Stat. § 160.2715 criminalizes obstructing and damaging state, town and county right-of-ways. Because of the peculiar wording of this chapter of law, these protections might not apply to cities (See Minn. Stat. § 160.02, Subd 25). As a result, cities may wish to adopt local ordinance provisions that prevent and criminalize:

• obstructing any street or ditch;
• digging any holes in any street;
• removing any earth, gravel, or rock from the street or ditches;
• committing actions that mar, damage, or tamper with any structure, work, material, equipment, tools, signs, markers, signals, paving, guardrails, drains, or any other street appurtenance on or along any street.

Organize Solid Waste, Garbage Collection:

Large solid waste (garbage) and recycling trucks can generate wear and tear on city streets. In part to limit such traffic, cities are authorized to organize (and limit) collection of garbage and recycling in their communities through local ordinance. It is important to note, however, that organizing collection involves more than passing a simple ordinance. State law requires cities to publish notice of intent to organize collection, hold public hearings and meet with stakeholders under very specific timelines.

Work, Excavation and Maintenance in the ROW:

The right-of-way (ROW) of city streets is a popular place to be. The ROW typically includes the traveled street as well as the ditches, shoulders and additional easement area on each side. All sorts of utility and cable lines may be located in the ROW, as well as private facilities of abutting landowners (for example, fences, signs and sprinkler systems).

Unfortunately, all this activity can result in damage to city streets. A solid ROW ordinance will require workers or contractors in the ROW to:

• notify the city that work in the ROW will occur;
• obtain a city permit prior to commencing work;
• repair any damage they create;
• adequately address safety issues (for example, warning cones and signs); and
• carry adequate bond or insurance to guarantee that damages are repaired.

A good ROW ordinance will insure that damages to the street created by private contractors to further their business interest are not being repaired by city taxpayers. LMC has a model ROW ordinance available at this link: http://www.lmc.org/media/document/1/modelrowordinance.pdf

The LMCIT memo Do You Know What’s In Your Right-of-Way? is a helpful guide to crafting provisions as well. This is available at: http://www.lmc.org/media/document/1/doyouknowwhatsinyourrightofway.pdf

Allowing Alternative Traffic:

Wear and tear from heavy vehicles may also be reduced by allowing residents to use alternative (and lighter) means of transportation on city streets. Minn. Stat. § 169.045 authorizes cities to adopt a local ordinance allowing special vehicle use on designated roadways – including motorized golf carts, four-wheel all-terrain vehicles, or mini trucks.

City ordinance must designate the specific roadways where the special vehicle traffic is allowed (this can only cover city streets – not state or county roads). In addition, the ordinance must require a city permit and insurance. More on this topic (including a sample ordinance) can be found in the LMC memo Special Vehicles Operating on City Streets at http://tinyurl.com/23fou6e

Some cities have also adopted ordinances that assist in the creation of “complete streets.” These ordinances facilitate greater use of non-motorized traffic such as bicycles on city streets. See this link for a recent news item for the City of Rochester: http://tinyurl.com/3ab75j7

Conclusion

Maintaining streets can be a daunting and expensive task for cities. While not a complete solution to the problem of deteriorating infrastructure, ordinances can help cities preserve and extend the useful life of their streets.

photo provided by: http://www.publicdomainpictures.net/view-image.php?image=2973&picture=construction-zone

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