Agenda - Council - 03/13/2012 - Special

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• City of Ramsey v. Kiefer - WestlawNext Page 3 of 4 In his reply brief, Kiefer counters that the evidence does not support the decision, that he preserved his constitutional challenges, and that he was prejudiced by the exclusion of his evidence. We have carefully reviewed the record in this matter and conclude that the city's decision is unsupported by the substantial evidence in view of the entire record and is affected by error of law, therefore we do not address Kiefer's constitutional challenges. At the evidentiary healing, the city argued that the van is parked in violation of the code because it is not parked on a bituminous or concrete surface regardless of whether or not it is parked on a driveway. This is illustrated by the city's objection to Kiefer's attempts to prove that his long- existing driveway runs from the street in front of his house, through the side yard to a garage in the rear yard. Counsel for the city stated: The issue isn't whether there's a driveway here or not, it's whether or not there's a vehicle parked on the correct surface." Later in the hearing, counsel for city, objecting to Kiefer's questioning witnesses about the existence of a driveway in the side yard, stated: [T]he questioning as to whether or not there's a driveway or not a driveway is irrelevant for the purposes of this hearing. If we're talking about the particular surface that it's parked on, I think that would be relevant ... [b]ut as to whether or not there is a driveway or its existence at any point in time, I think that's irrelevant ... in the side or rear yard parking requires a bituminous pavement or concrete, residential parking surface ... [w]hether that's a driveway or not." The hearing examiner asked: "So the issue of whether or not it's parked on a driveway is irrelevant. The issue is to [sic] the surface of the spot where the vehicle is parked ?" Counsel responded: "That's correct your honor,' after which the hearing examiner sustained counsel's objection to further inquiry about whether the van is parked on a driveway in Kiefer's side yard. The city council adopted the hearing examiner's findings of fact including a finding implicitly crediting testimony that that the van is parked on a "drive lane" that runs between the street and a garage on Kiefer's property. And the city does not dispute that a "drive lane" is a driveway, defined in Ramsey City Code § 9.02 as "[alit on -site traffic lane leading directly to a garage from the closest street access." Nor does the city dispute that the code does not require a particular surface on a driveway. Additionally, notwithstanding its position at the hearing, on appeal, the city concedes that "Kiefer could park on a driveway (paved or not) that extended into the side or rear yard." On appeal, the city has abandoned the argument that even if parked on a driveway in the side yard, the surface must be bituminous or cement to comply with the code and now argues that Kiefer's van was not parked on a driveway. The city's current argument is contrary to its adoption of the hearing examiners findings of fact. The city now asks this court to credit the testimony of Assistant Community Development Director Sylvia Frolik, who oversees the administration of chapter 9 of the Ramsey City Code, as evidence that the van is not parked on a driveway. Frolik, when asked to opine "[f]rom ... observation of the testimony and ... significant experience in interpreting the City's ordinances" whether the van is parked on a driveway, stated: "[t] he driveway, in accordance with the definition of a driveway in the MUSA, is bituminous or concrete, and the existing driveway falls short of where that van is parked." Frolik acknowledged, however that the most direct route to an "outbuilding" (previously identified by witnesses as a garage) shown on a photograph in evidence, "would be where there's this clearing in the trees, but there's nothing that shows me that it's a driveway." Despite Frolik's opinion, which misstates the city's definition of a driveway, the substantial evidence in the record supports only a finding that the van is parked on a driveway as defined in the city code. We reject as without merit the city's new theory of the case, asserted for the first time on appeal, that the evidence demonstrates that the van is not parked on a driveway. "4 The evidence supports only a finding that the van is parked on a driveway. And the city implicitly concedes that it would be an error of law to interpret the city code to https: / /a. next. westlaw .comlDocunnent /I7ffc800b9 al 11 dea 82ab9f4ee295c21/View/FullTe... 2/20/2012