City, landowner, at odds over fence

The Elk River City Council has directed City Attorney Peter Beck to proceed with code enforcement action against a landowner who put up a barbed wire fence on his property line in violation of the city’s ordinance.

City ordinance requires such fences to be set back 5 feet from the property line.

But an attorney for landowner Martin Moritz has taken issue with the city’s 5-foot setback requirement.

“I’ve never seen any case similar to this where a governmental body tries to keep a person from putting a barbed wire fence on a property line,” attorney Jim Neilson told the council on Monday, Sept. 17.

Neilson believes that the city ordinance is in conflict with state law, which would allow the fence on the property line, and that state law controls the issue and had advised his client of that.

City Attorney Beck, however, has concluded that state law does not preempt the city’s right to regulate the type and location of fences.

“I don’t see any legal impediment to the council enforcing our ordinance as written,” he told the council.

The fence is located on property near Twin Lakes Road and 201st Avenue.

Council members weren’t happy, in part, because additional fencing had occurred after Neilson had initially appeared before the council in August to discuss the issue.

“They went ahead and willfully violated our ordinance,” Mayor John Dietz said.

Homeowners living on two neighboring properties also are unhappy about the fence and related issues, and asked the council to enforce the 5-foot setback.

While the city will take steps to enforce the ordinance, city staff will also research the larger issue of the 5-foot setback and how other cities handle it and bring it back to the council for discussion at a later date.

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