City council sides with staff in pool fence dispute

Posted 6/15/22

By John McLoone After lengthy discussion at its meeting Monday, June 6, the Hastings City Council voted to affirm a city staff decision that a fence around a swimming pool at a city residence is …

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City council sides with staff in pool fence dispute


By John McLoone

After lengthy discussion at its meeting Monday, June 6, the Hastings City Council voted to affirm a city staff decision that a fence around a swimming pool at a city residence is climbable, which makes it in violation of city code.

The cable rail fence surrounds a pool at the residence of Shane Hudella, 152136 Ravenna Trail. Hudella installed the fence and contended that the combination of the fence and a locking pool cover makes the pool safe. He also pointed out that the city, with a previous inspector, permitted three pools with similar cover systems without a fence surrounding the pool.

The council discussed Hudella’s appeal of building inspector Travis Dunn’s ruling that the type of fence Hudella installed isn’t allowed under code at a May 16 meeting. At that time, the council directed staff to get an opinion on the issue from the Minnesota Department of Labor.

Community Development Director John Hinzman said the agency wouldn’t provide an opinion, because the matter wasn’t related to state building code.

City code states, “Fences installed around swimming pools from ground up must be a minimum of 4 feet high and nonclimbable with a selfclosing, selflatching gate.”

Hudella was not present at the meeting. An email from him to Hinzman was included with council materials.

“At the end of the day I want to do right / play by the rules with the city, but I feel really strongly on this one too. Other pools with this type of auto‐cover haven’t even been required to have fencing in the past, and I do think mine meets code with the cabling being 3.5 inches apart,” he wrote.

In a memorandum to the city council, Hinzman wrote, “Appellant argues that the pool has a lockable cover, however, this does not negate the requirement that the fence be nonclimbable. It has been found that lockable covers are not foolproof and wear out over time or are left unlocked, leaving them accessible.”

City staff said the fence could meet code by removing the cabling, putting in a top bar between existing posts and covering that with chain link fencing material.

Hinzman said the original permit applied for with the city indicated that the fence would be four foot high and constructed of “decorative aluminum.” Hinzman said the material change was made after the initial permit was grated.

“We presumed that the fence would be as permitted, which would be the fourfoot decorative fence. On inspection in October, there was a cable rail fence, and the cable rail fence was determined to be climbable,” Hinzman told the council.

Hinzman warned Hudella by email that it was not likely the city council would overturn the decision by staff.

“In my 20 years at the City we’ve had less than five of these type of decisions before the Council, and I don’t believe the Council has overruled staff,” he wrote.

The council would have had to act unanimously at the meeting, as one councilmember – Trevor Lund – was absent. Generally, it would take six of seven votes to overrule the staff decision.

City councilmembers Mark Vaughan and Lisa Leifeld voted against passage of the resolution affirming staff decision. Vaughan expressed concern that there was precedent that pools were permitted with just the lockable cover.

“I feel comfortable with the current fence, as long as there’s a safety cover,” he said. “I think there were some mistakes made here, and I think Mr. Hudella made a big investment in a cover, and I think we need to recognize that. That’s where I’m at with this. I think there was some mistakes made in the process.”

“I really don’t like to get in the habit of going against staff’s recommendation, because you guys are our experts. But in this particular case, I think we need to take a step back and look, down the road, at our ordinance in general and its wording,” he said.

Leifeld reiterated a point Vaughn made, which was that Hudella’s insurance company had approved the construction with the cable rail fence and the locking pool cover.

“The cover, that’s the doall right there,” she said. She also said that a fourfoot high fence of chain link material won’t keep anyone from climbing it if they wish to.

“As a fivefoot, twoinch individual, I can get myself over any four foot object,” she said. “Right now, I feel as though we have to support this particular situation.”

Hinzman admitted that in the future the city brochure on what is acceptable could include language to the effect that a cable rail fence isn’t allowed.

Several council members voice support for the staff decision and resolution.

Tina Folch said that if the detail of the fence construction was missed, Hudella expressed in his email that he would work with the city.

“I think that it’s important that we all recognize that we sometimes miss details, and that we have to do what’s right. And I think that he was more than willing to do what was right if the council gave that direction,” she said. “I’ll be supporting the staff’s recommendation,” said Folch.

Said Jenn Fox, “I also will be supporting staff’s recommendation on this resolution. Our job today is to be the Board of Adjustments and Appeals. That is a really hard role to play, but once in a while we have to do that. I have a fence similar to this in my business, and I see children climbing it often.”