Memo Tietjen/WolfDate: December 4, 1995
Re: Tietjen /Wolf
C I T Y O F H O P K I N S
MEMORANDUM
To: Mayor and Members of the City Council
Attention: City Manager
From: Jerre Miller
At a regular meeting of the City Council on November 21, 1995, a
Petition was received from certain Hopkins residents requesting
that the City consider passage of an Ordinance involving the
relationship of adjacent owners of residential property who share
a driveway access to individual garages from either an alley or
public street.
The submission of the Petition was motivated by a homeowner who,
for a number of years, had utilized the property of the adjacent
homeowner in backing from and driving into his garage. The
neighboring owner had for years been similarly situated so that
each property owner had the benefit of and was subjected to the
use In this particular instance, the garage of each property
owner face each other and the surface between the two garages is
entirely covered by concrete.
The owner of the Tietjen property has recently applied for a fence
permit which she intends to construct from the alley across the
concrete on her side of the property adjacent to the common
boundary line of the two properties. The Wolfs who own the other
property have alleged they have acquired a prescriptive easement
over the Tietjen property. No action has yet been commenced to
establish this right by law.
The Application for the fence permit is in conformance with the
fencing ordinance.
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1010 First Street South Hopkins, Minnesota 55343
Phone: 612- 935 -8474 Fax: 612- 935 -1834
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ISSUE
Would passage of such an ordinance be a lawful exercise in
promoting the health, safety, morals or general welfare of the
City?
DISCUSSION
The Hopkins City Charter has a paragraph on ordinances that reads
as follows
"SECTION 12.14. CERTAIN ORDINANCES AND POWERS.
Subdivision. 1. For purpose of promoting the health,
safety, morals or general welfare of the City, the
Council may by ordinance regulate, structures and land
for trade, industry, business, residence or other
purposes. It may declare the existence of and provide
for the rehabilitation of blighted areas. It may provide
for the acquisition and management of privately owned
lands, buildings and other real and personal property
interests by the City for any purposes in the public
interest or welfare, and for the sale or any other
disposal thereof provide methods of procedure for any
such purposes, and make any other provisions as may
appear desirable for the purpose herein expressed.
Subdivision 2. The Council shall by ordinance make such
regulations as may be necessary to carry out and make
effective the provisions of this Charter.
There is also a power clause within the Charter as follows:
"Section 1.02. POWERS OF THE CITY. The City shall have
all powers of local self - government and home rule
possible for a municipal corporation to have under the
constitution of the State, and all powers possessed by
municipal corporations at common law and that now or
hereafter may be granted to municipalities by the laws of
the State, including all powers which shall be necessary
to preserve, promote, advance and protect the health,
safety and general welfare of persons, and preserve and
protect property, and to any and all of these ends, to
levy taxes and to borrow money and issue and negotiate
bonds or other instruments evidencing indebtedness; to
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enter into contracts, to purchase, exchange, develop,
operate, improve, lease, barter or sell any property.
All such powers shall be exercised in the manner
prescribed in this Charter and by the laws of the State,
or if not so prescribed, as shall be provided by
ordinance of the Council."
The City passes ordinance as part of its legislative duty to
maintain uniformity within the City and among its citizens to
protect the health, safety and welfare of such citizens in doing
so.
Legislation of this nature must provide for the equal protection of
and be uniformally applicable to all. Threaded throughout this
concept and in the exercise of the powers granted legislatively and
constitutionally is the intent that such laws serve the common
good.
When these concepts are applied to the facts of this situation, it
is evident that the legislative authority of the City is sought in
this instance to resolve a local, private dispute between two
neighbors. The entry by a city into the private sector to resolve
personal disputes is not only ill - conceived and dangerous but can
provide a backlash such as an action by the aggrieved neighbor who
would commence a legal claim that the City had exceeded its
constitutional bounds by invading a private dispute and . obstructing
a legitimate request to use one's private property without a public
purpose supporting it. This could generate all sorts of headaches
and I cannot see where the City would prevail.
The private disputes and disagreements between citizens or neighors
are properly resolved in the civil arena where an adequate remedy
at law following a fair and impartial hearing is provided.
The longevity of a citizen's residence or the annual payment of
real estate taxes does not give rise to a reliance upon city powers
to resolve personal disputes between or among prospective
litigants.
OPINION
I do not see the passage of such an ordinance to be an appropriate
constitutional exercise of the legislative powers of the City;
rather, I see it as an unlawful intrusion into a private dispute
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which favors in this instance one party over the other and serves
no useful public purpose.
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JAM