Retroactive Right of Way Encroachment Request - 560 Mill. (Roll Call)

City Council Agenda Item Report FROM:

Luke Thompson, Director of Planning/Zoning

MEETING DATE:

January 27, 2025

SUBJECT:

Hardscaping in Right of Way Request – 560 Mill Street

DESCRIPTION: In September of 2024, staff received a retroactive right of way application for the installation of existing hardscaping on Simonson Dr. They have submitted the attached request to allow the decorative hardscaping such as a water fountain and sprinklers on site to remain but have agreed to remove the stone wall which runs along Simonson Dr. The owner estimates that the existing hardscaping is situated within 20ft of the Southeast property line (Exhibit A). Recently, a neighboring property had a retroactive request for hardscaping denied. There are some key differences between the properties such as the encroachment of Mill St onto the applicant’s property. However, due to the length of time the encroachment has been in place, the City likely has equitable title and the property owners could be viewed as similarly situated. The City’s new hardscaping policy prohibits decorative concrete, boulders, permanent planter pots and fountains from being constructed in the right of way. However, the new ordinance states City Council “may issue a permit for a use prohibited under the Policy that has been installed or constructed prior to the implementation of this Section.” Permit applications shall be assessed by the City Council based upon the following criteria: (1) The proposed cost of installation; (2) The potential risk of harm associated with such installation, including, but not limited to potential for the installation to encroach on the motorway, break, malfunction, and cause harm to pedestrians and motorists; (2) The ease and cost of removal of the installation;

(4) Whether the installation aligns with the surrounding area and provides an aesthetic benefit to the community; (5) Whether the installation pre-exists the passage of this Ordinance; (6) The proposed size of the installation, including height and width; (7) The material of the installation (i.e. plant matter, wood, brick, mulch, and plaster); and (8) Review, comment, and recommendations of City staff and departments. The City Engineer reviewed and noted the following if Council were inclined to approve the request: •

The hardscaping should be pulled back, not necessarily to the property line, but at least enough to allow for parallel parking along the Simonson Street frontage away from Mill Street and better clear vision at the intersection. Any approval should come with a requirement to keep bushes, shrubs and other visual obstructions (individual trees can probably be exempted, based on the nature of the intersection) trimmed down below a driver’s eye. 3.5 feet is commonly used for sight distance analyses, so I would suggest 3 feet as the maximum height for bushes, shrubs and other visual obstructions in the clear vision area here.

LEGAL REVIEW: The City Attorney has reviewed and will be available at your meeting to answer any questions you may have. SAMPLE MOTIONS: Motion to deny the request to maintain hardscaping within the City’s right-of-way at 560 Mill Street, on the basis that the hardscaping at issue encroaches upon and may interfere with the City’s current and planned use of the Mill Street right-of-way for vehicular traffic and parking.

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