Res 2014-99
CITY OF FRIDLEY
RESOLUTION NO. 2014-99
A RESOLUTION AFFIRMING THE DECISION OF CITY CODE ENFORCEMENT OFFICER
RELATED TO 1627 and 1631 RICE CREEK ROAD NE
WHEREAS,
the City of Fridley, Minnesota (the “City”), through its Community Development
staff, including the Planning Manager and Community Development Director, conducts routine and
systematic zoning code enforcement inspections throughout the City to help protect the health, safety,
general welfare and good order of the public;
WHEREAS,
an owner of property is liable for violations of the Fridley Zoning Ordinance
pursuant to City Code Section 205.05.10, which specifically states:
10. ENFORCEMENT
Violation a Misdemeanor; Penalty.
The owner of a building or premises in or upon which a violation of any provisions
of this Chapter has been committed, or shall exist;
or the lessee of the entire building
or entire premises in or upon which a violation has been committed or shall exist; or the
owner or lessee of any part of the building, or premises in or upon which such violation
shall be guilty of a misdemeanor, and subject to all
has been committed or shall exist,
penalties provided for such violations under the provision of Chapter 901 of this
Code
each and every day that such violation continues. Any such person who, having
been served with an order to remove any such violation, shall fail to comply with said
order to remove any such violation, within ten (10) days after such service, or shall
continue to violate any provisions of the regulations made under authority of this Chapter
in the respect named in such order shall be guilty of a misdemeanor and subject to all
penalties provided for such violations under the provisions of Chapter 901 of this Code.
Each day that such violation continues shall be a separate violation.
(emphasis added).
WHEREAS,
James Kiewel (“Owner”) owns real property located at 1627 Rice Creek Road NE
in the City (the “1627 Property);
WHEREAS,
Owner owns real property located at1631 Rice Creek Road NE in the City (the
“1631 Property”);
WHEREAS,
the City Zoning Code requires a land alteration permit whenever earth moving
equipment is involved in major land disturbance activities on real property;
WHEREAS,
while the Fridley City Code only allows minor landscaping that can be completed
with hand tools to be conducted on residential property without a land alteration permit;
WHEREAS,
on or about June 28, 2005, Owner applied for a land alteration permit (the
“Permit”) for the 1631 Property (Exhibit 2);
Resolution No. 2014 - 99 Page 2
WHEREAS,
the materials that the Owner submitted to the City indicated that the proposed
change on the 1631 Property in the land alteration work for which he sought the Permit included a
retaining wall and depicted a four (4) foot grade difference from one end of the lot to the other (Exhibit 2)
indicating a retaining wall under four (4) feet tall;
WHEREAS,
if the Owner’s land alteration permit application indicated a retaining wall over four
(4) feet in height, City policy would have required additional engineering drawings in order to
demonstrate and certify that the retaining wall was properly designed;
WHEREAS,
while the State Building Code provides that any retaining wall over four (4) feet in
height requires owners to obtain a building permit, City practice is to fulfill and administer the State
Building Code permit requirement through issuance of the land alteration permit because City Public
Works staff is more qualified to review, analyze and approve such plans as they relate to grading and
erosion control;
WHEREAS,
in administering the building permit requirement in this manner, the land alteration
permit, issued under the City’s Zoning Ordinance, requires an owner as one of its conditions to submit
engineering plans to demonstrate that the retaining wall was properly designed;
WHEREAS,
in enforcing the terms and conditions of its land alteration permit, the City is
enforcing its Zoning Ordinance rather than the State Building Code;
WHEREAS,
in the application, the Owner requested the Permit to “fill low lying areas of [the]
backyard” on the 1631 Property (Exhibit 2);
WHEREAS,
on or about June 30, 2005, the City approved the Permit for the 1631 Property
(Exhibit 2);
WHEREAS,
the Permit only authorized land alteration and dirt and fill moving on the 1631
Property and not the 1627 Property (Exhibit 2);
WHEREAS,
Owner moved dirt on the 1631 Property during the timeframe allowed pursuant to
the Permit;
WHEREAS,
the Permit expired on September 30, 2005 (Exhibit 2);
WHEREAS,
on or about October 4, 2005, the City received a noise complaint that Owner had
been moving dirt on the 1631 Property with heavy equipment;
WHEREAS,
subsequent to the October 4, 2005 noise complaint, the City, through its Assistant
Public Works Director, discovered that the Owner had constructed a six (6) foot tall retaining wall on the
1631 Property consisting of two levels of three (3) foot tall plastic barrels (Exhibit 3); and
WHEREAS,
in some areas on the 1631 Property, the retaining wall is topped with three rows of
railroad ties, for a total height in excess of eight (8) feet in some areas on the Property (Exhibit 9); and
WHEREAS,
City Code Sections 206.01.1 and 206.01.2, as well as Minn. R. 1300.0120 require
the issuance of a building permit for the construction of any retaining wall that exceeds four (4) feet in
height;
Resolution No. 2014 - 99 Page 3
WHEREAS,
the City issues its building permit for retaining walls that exceed four (4) feet in
height through inclusion of the retaining wall authorization in the land alteration permit and is reflected in
a condition that the retaining wall design be certified by a professional engineer;
WHEREAS,
the Permit did not authorize or allow the Owner to construct a retaining wall on the
1631 Property that exceeded four (4) feet in height and did not authorize any retaining wall construction
or land alteration or earth moving at all on the 1627 Property;
WHEREAS,
on or about December 14, 2005, the City Assistant Public Works Director sent a
letter to the Owner notifying him that: (1) the Permit had expired; (2) he needed to provide structural
engineering certification to approve the constructed retaining wall; and (3) directed him to obtain a new
land alteration permit by December 31, 2005 (Exhibit 3);
WHEREAS,
the Owner never obtained another land alteration permit for the 1631 Property;
WHEREAS,
the Owner has admitted that the retaining wall exceeds four (4) feet in height;
WHEREAS
, after the expiration of the Permit, the Owner continued to move more dirt, and fill
on the 1631 Property without a valid, unexpired land alteration permit and moved dirt and fill on the 1627
Property (Exhibits 5 and 7);
WHEREAS,
on or about July 29, 2007, the City received a noise complaint through its Police
Department regarding the 1631 Property and, upon arrival, the responding officer observed the Owner
driving a bobcat and moving dirt on the 1631 Property (Exhibit 5);
WHEREAS,
on or about July 29, 2007, the Owner did not have a land alteration permit
authorizing land alteration and dirt moving on the 1631 Property;
WHEREAS,
on or about August 6, 2007, City Community Development Director, Scott Hickok,
sent the Owner a letter informing him that he needed to obtain a land alteration permit for the excavation
continuing to occur on the 1631 Property and provided an August 10, 2007 deadline to obtain the land
alteration permit (Exhibit 6);
WHEREAS,
the Owner failed to obtain any land alteration permit for the 1631 Property after the
expiration of the Permit on September 30, 2005;
WHEREAS,
on or about September 5, 2011, the City, through its Police Department, was
dispatched to the 1627 Property and, on arrival, the responding officer observed the Owner, who had not
yet taken title and possession to the 1627 Property, on a skid loader moving dirt (Exhibit 7);
WHEREAS,
on or about September 5, 2011, there was no existing land alteration permit for the
1627 Property;
WHEREAS,
the responding police officer observed during his visit to the 1627 Property that
there was no vegetative cover left in the rear yard of the 1627 Property (Exhibit 7);
WHEREAS,
the Owner used heavy equipment and altered the land and moved dirt on the 1627
Property without ever having applied for or received a land alteration permit from the City;
WHEREAS,
on or about January 24, 2013, the City’s Assistant Public Works Director sent the
Owner a letter regarding the “Non-permitted Soil Disturbance” at the 1627 Property (Exhibit 8);
Resolution No. 2014 - 99 Page 4
WHEREAS,
in the January 24, 2013 letter, the City’s Assistant Public Works Director informed
the Owner that: (1)“significant grading of soils has taken place” on the 1627 Property; (2) that he had
observed “stockpiled soils, a skid loader, and non-stabilized soils on-site” and (3) that these activities
required a land alteration permit (Exhibit 8);
WHEREAS,
subsequent to the City’s Assistant Public Works Director’s January 24, 2013 letter,
the Owner never applied for a land alteration permit;
WHEREAS,
on September 5, 2013, Julie Jones, City Planning Manager, and Scott Hickok, City
Community Development Director, conducted an exterior inspection of the 1631 Property, and observed
the plastic barrel retaining wall on the 1631 Property and observed that it was failing in that at least one of
the plastic barrels in the second row had shifted out of line and was susceptible to falling, one of the
barrels had ripped open, and run off water was being diverted off of the 1631 Property (Exhibit 9);
WHEREAS,
with respect to the 1631 Property, on September 11, 2013, Julie Jones, City
Planning Manager, sent the Owner a First Notice of Non Compliance of the Fridley City Code advising
the Owner that: (1) his Permit had expired when he had done earth moving work; (2) the Permit had not
authorized construction of the plastic barrel retaining wall; and (3) the State Building Code required a
building permit when installing a retaining wall in excess of four (4) feet (Exhibit 10);
WHEREAS,
with respect to the 1627 Property, on September 12, 2013, Julie Jones, City
Planning Manager, sent the Owner a First Notice of Non Compliance of the Fridley City Code advising
the Owner that he had extensively altered the rear yard and constructed a retaining wall in excess of four
(4) feet tall without a land alteration permit (Exhibit 11);
WHEREAS,
on September 26, 2013, the Owner served the City with a “Notice of Contested
Case” for each the 1627 Property and the 1631 Property objecting to the City’s determinations
concerning the grading and construction of a retaining wall without a valid land alteration permit and
building permit (Exhibit 12);
WHEREAS,
with respect to the 1631 Property, on October 9, 2013, the City Planning Manager,
sent the Owner a letter advising the Owner that he had constructed a retaining wall without a building
permit or land alteration permit, that the retaining wall is failing and creating a public nuisance and that
he needed to provide structural engineering certification for the wall by December 31, 2013 or remove it
by June 15, 2014 (Exhibit 13);
WHEREAS,
on November 1, 2013, the City, through Scott Hickok, its Community Development
Director, mailed the Owner notice of the scheduling of an Appeals Commission hearing for November
13, 2013 at 7:00 p.m. to hear the Owner’s appeal from the Planning Manager’s order to provide structural
engineering certification of the retaining wall by December 31, 2013 or remove the retaining wall by June
15, 2014 (Exhibit 15);
WHEREAS,
on November 7, 2013, Darcy Erickson, the Fridley City Attorney, sent the Owner a
letter advising the Owner that the November 13, 2013 Appeals Commission meeting at which the
abatement of the retaining wall constructed without a valid land alteration permit and building permit was
cancelled, because the City abatement hearing was premature at that time, as the October 9, 2013 Notice
provided a deadline for removal of the retaining wall by June 15, 2014 (Exhibit 16);
WHEREAS,
the Owner failed to remove the retaining wall from the 1631 Property before the
June 15, 2014 deadline;
Resolution No. 2014 - 99 Page 5
WHEREAS,
Owner failed to provide the City with an engineering report that certifies that the
retaining wall is structurally sound before the June 15, 2014 deadline, despite City requests for said
report;
WHEREAS,
on or about July 9, 2014, the City sent letters to the Owner regarding the 1627
Property and the 1631 Property directing the Owner to remove the retaining wall constructed without a
proper building permit and rebuild it with proper permits or that he provide structural engineering
certification for the retaining wall by August 9, 2014 (Exhibits 17 and 18).
WHEREAS,
on or about August 8, 2014, the Owner provided the City with “Contested Case”
packets on both the 1627 Property and the 1631 Property (Exhibits 19 and 20).
WHEREAS,
on or about August 20, 2014, the City, through Scott Hickok, its Community
Development Director, mailed the Owner notice of the scheduling of an Appeals Commission hearing for
September 3, 2014 at 7:00 p.m. to hear the Owner’s appeal from the order of the Planning Manager to
remove and rebuild the 2-tier blue barrel retaining wall with building and land alteration permits or
provide the City with a structural certification for the retaining wall from a licensed professional engineer
(Exhibit 21);
WHEREAS,
on or about August 28, 2014, the Owner mailed motions he filed with the Anoka
County District Court concerning requests for information, which he classified as “discovery” (Exhibit
22);
WHEREAS,
on or about September 3, 2014, the City received a letter, dated August 29, 2014,
from Anoka County District Court advising the Owner that it was unable to consider the Owner’s motions
(Exhibit 23);
WHEREAS,
aerial photography depicts significant changes in the topography of the 1627
Property and 1631 Property have occurred since 2000 (Exhibits 24 through 27 and 29 through 33);
WHEREAS,
a valid land alteration permit existed for a three (3) month period from June 30,
2005 through September 30, 2005;
WHEREAS,
significant topographical changes occurred between 2008 and 2011, when there
were no land alteration permits for either the 1627 Property and the 1631 Property (Exhibits 24 through
27);
WHEREAS,
at the September 3, 2014 Appeals Commission hearing, the City continued the
hearing to October 1, 2014 so that it could prepare and provide the information requested by the Owner;
WHEREAS,
on or about September 12, 2014, City staff mailed the Owner a copy of the
materials responsive to his request;
WHEREAS,
the City, through its Planning Manager, Julie Jones, Community Development
Director, Scott Hickok, Assistant Public Works Director Layne Otteson, and the Owner, appeared before
the Appeals Commission on October 1, 2014 and presented their respective arguments, evidence and
testimony to the Appeals Commission;
WHEREAS,
the Appeals Commission affirmed the Order of the City’s Planning Manager in
Resolution 2014-02;
Resolution No. 2014 - 99 Page 6
WHEREAS,
on October 30, 2014, the Owner filed an appeal with the City Manager; and
WHEREAS,
City staff scheduled the appeal before the City Council on November 10, 2014, and
the City Council continued the hearing to November 24, 2014 upon request by James Kiewel, and again
to December 22, 2014 upon written request by Mr. Kiewel; and
WHEREAS,
the City received a letter, dated December 20, 2014 from Henry Estephan, P.E.
from the Owner but the letter does not address the retaining wall on both 1627 and 1631 Rice Creek Road
and the City Engineer has indicated it is not sufficient on its fact to satisfy the structural certification
requirements of the City with respect to the retaining wall;
WHEREAS,
the Owner has now appeared before the City of Fridley Appeals Commission and
City Council and thereby exhausted his administrative remedies with the City of Fridley;
WHEREAS
, the City, through its Planning Manager, Julie Jones, Community Development
Director, Scott Hickok, Public Works Director, James Kosluchar, and the Owner, appeared before the
City Council on November 10, 2014 and December 22. 2-14 and presented their respective arguments,
evidence and testimony to the City Council;
NOW, THEREFORE BE IT RESOLVED
by the City Council of the City of Fridley after listening to
all of the facts presented hereby makes the following FINDINGS OF FACT:
1. That each and all of the preceding statements are true and correct and are incorporated herein
as part of the findings of fact and record of these proceedings.
2. That each and all of the exhibits are incorporated herein as a part of the record of these
proceedings.
3. That Fridley City Code Section 205.04.4.I(2) states:
I. No land shall be altered and no use shall be permitted that results in water run-off
causing flooding, erosion or deposits of minerals on adjacent properties. The
following standards shall be implemented:
(2) A grading and drainage plan shall be submitted in conjunction
with a building or land alteration permit and shall be drawn at a scale no
smaller than (1) inch equals two hundred feet….
4. That Fridley City Code Section 205.04.4.I.3 states:
(3) A grading and drainage plan is not required for the following
development activities:
(a) minor land disturbance activities such as home gardens
and individual residential landscaping, repairs, and
maintenance work….
5. That Fridley City Code Sections 205.04.4.I.3 exempts only those residential landscaping and
home gardening activities performed with simple hand tools such as shovels and wheel
barrows.
Resolution No. 2014 - 99 Page 7
6. That Fridley City Code Sections 205.04.4.I(2) and 205.04.4.I.3 require land alteration and
grading permits for residential projects involving earth moving equipment.
7. That Fridley City Code Section 206.01.1 adopts the State Building Code and states:
1. Building Code. The Minnesota State Building Code, established pursuant to Minnesota
Statutes 16B.59 through 16B.71, one copy of which is on file in the office of the City
Clerk of Fridley, Minnesota, is hereby adopted by reference as the Building Code of the
City of Fridley and incorporated in this Chapter as completely as if set out here in full.
8. That Fridley City Code Section 206.01.2 incorporates Minnesota Rules Chapter 1300, which
governs permitting and states:
2. The following chapters of the Minnesota State Building Code including the following
chapters of Minnesota Rules are adopted by the City:
A. Chapter 1300 – Administration of the Minnesota Building Code
9. Minn. R. 1300.0120 exempts retaining walls four (4) feet and less in height from building
permitting requirements but requires a building permit for any retaining wall in excess of four
(4) feet and states:
Subp. 4. Work Exempt from permit.
Exemptions from permit requirements of
the code do not authorize work to be done in any manner in violation no the code
or any other laws or ordinances of this jurisdiction. Permits shall not be required
for the following:
A. Building:
(4) retaining walls that are not over four feet (1,219 mm
in height measured from the bottom of the footing to the
top of the wall, unless supporting a surcharge or
impounding Class I, II, or III-A liquids.
10. While the State Building Code provides that any retaining wall over four (4) feet in height
requires owners to obtain a building permit, City practice is to fulfill and administer the State
Building Code permit requirement through issuance of the land alteration permit.
11. In administering the building permit requirement in this manner, the land alteration permit,
issued under the City’s Zoning Ordinance, requires the owner, as a condition of the land
alteration permit, to submit engineering plans to demonstrate that the retaining wall
construction was properly designed and as such, the City is enforcing its Zoning Ordinance.
12. Appeals from the City’s enforcement of its Zoning Ordinance are heard pursuant to Chapter
205.
13. The Owner has engaged in extensive and significant earth moving on both the 1627 Property
and the 1631 Property that exceeds a reasonable definition of minor land disturbance such as
individual residential landscaping, as he has utilized earth moving equipment and has
performed grading work that could not be accomplished with hand tools alone.
Resolution No. 2014 - 99 Page 8
14. The Owner’s Permit for the 1631 Property expired on September 30, 2005 and the Owner
continued earth moving activities long after the expiration of the Permit and in violation of
City Code Section 205.04.4.I(2).
15. The Owner constructed the six (6) foot high retaining wall on the 1631 Property without a
building permit for the 1631 Property in violation of Fridley City Code Sections 206.01.1 and
206.01.2, and Minn. R. 1300.0120.
16. The Owner never obtained a land alteration permit for the 1627 Property and engaged in
extensive and significant earth moving on the 1627 Property in violation of City Code
Section 205.04.4.I(2).
17. The Owner constructed the six (6) foot retaining wall on the 1627 Property without obtaining
a land alteration and building permit for the 1627 Property as required by Fridley City Code
Sections 205.04.4.I(2), 206.01.1 and 206.01.2, and Minn. R. 1300.0120.
18. The Owner received several notices from the City’s duly authorized code enforcement agents
over a period of years notifying the Owner that the retaining wall must be removed and
replaced pursuant to a valid land alteration and building permit or that, in lieu of said removal
and replacement, the Owner could provide structural engineering certification for the
retaining wall.
19. The Owner has failed over that same period of years to remove and rebuild the retaining wall
pursuant to a valid land alteration or building permit for land alteration and construction of
the retaining wall on the 1631 Property and 1627 Property.
20. Pursuant to City Code Section 205.05.10, each and every day a violation exists constitutes a
violation and, as a result, the statute of limitations has not run on the Owner’s violation of the
City Code and, it specifically states:
10. ENFORCEMENT
Violation a Misdemeanor; Penalty.
The owner of a building or premises in or upon which a violation of any provisions
of this Chapter has been committed, or shall exist;
or the lessee of the entire building
or entire premises in or upon which a violation has been committed or shall exist; or the
owner or lessee of any part of the building, or premises in or upon which such violation
shall be guilty of a misdemeanor, and subject to all
has been committed or shall exist,
penalties provided for such violations under the provision of Chapter 901 of this
Code each and every day that such violation continues.Any such person who,
having been served with an order to remove any such violation, shall fail to comply
with said order to remove any such violation, within ten (10) days after such service,
or shall continue to violate any provisions of the regulations made under authority
of this Chapter in the respect named in such order shall be guilty of a misdemeanor
and subject to all penalties provided for such violations under the provisions of
Chapter 901 of this Code. Each day that such violation continues shall be a separate
violation.
(emphasis added).
Resolution No. 2014 - 99 Page 9
21. The Owner has failed over that same period of years to ever provide the City with structural
engineering certification as to the integrity of the retaining wall on the 1631 Property and
1627 Property.
22. The Appeals Commission appropriately heard the Owner’s appeal pursuant to City Code
Chapter 205 from the City Planning Manager’s order to remove the retaining wall on 1631
Property and 1627 Property and reconstruct it pursuant to valid land alteration or building
permit; or (2) provide the City a structural engineering certificate concerning the structural
integrity of the retaining wall on the 1631 Property and the 1627 Property.
23. Because the City permits retaining walls governed by the State Building Code through the
City’s land alteration permit issued under the Zoning Ordinance, Chapter 205, the appeal
from the City’s enforcement of its retaining wall permitting requirements are heard pursuant
to City Code Chapter 205 rather than as building code appeal.
24. Whether the Owner’s retaining wall constructed on the 1631 Property and 1627 Property
required engineering data to fulfill the State Building Code requirement administered through
the land alteration permit issued pursuant to the Zoning Ordinance is a zoning matter issue
than a technical State Building Code issue and the Appeals Commission is qualified and
authorized to hear such matters.
25. The City received a letter, dated December 20, 2014 from Henry Estephan, P.E. from the
Owner but the letter does not address the retaining wall on both 1627 Rice Creek Road and
1631 Rice Creek Road and the City Engineer has indicated it is not sufficient on its fact to
satisfy the structural certification requirements of the City with respect to the retaining wall.
26. Mr. Kiewel has now appeared before the City of Fridley Appeals Commission and City
Council and thereby exhausted his administrative remedies with the City of Fridley.
BE IT FURTHER RESOLVED THAT
based on these findings, the City Council of the City of Fridley
hereby affirms the order of the City Planning Manager directing the Owner to either: (1) remove the
retaining wall on the 1631 Property and 1627 Property pursuant to a valid land alteration permit and, if
reconstructed, reconstruct it pursuant to valid land alteration or building permit; or (2) provide the City a
structural engineering certificate concerning the structural integrity of the retaining wall on the 1631
Property and the 1627 Property as required by Fridley City Code Section 205.05.5.I(2), 206.01.1, and
206.01.2, as well as Minn. R. 1300.0120 by February 23, 2015.
nd
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FRIDLEY THIS 22 DAY
OF DECEMBER 2014.
__________________________
Scott J. Lund, Mayor
Attest:
____________________________
Debra A. Skogen, City Clerk