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Regular Meeting <br />February 14, 2005 <br /> <br />Council does not make this determination. <br /> <br />Ms. Welsch then asked if the Council approved the subdivision as requested, would the <br />subdivision have the ability to go to court. Mayor Adams said they may or they may not. <br />Mr. Ollendorff said the developer has been “put on notice” and advised there are some <br />restrictions which may in some way put the title in question. It is the private property <br />owners who must enforce the covenants because the City cannot. Ms. Welsch said this <br />made her “uncomfortable with this and she wanted the guidance of her colleagues who <br />had been working with the neighborhood and the City on this.” Mayor Adams then said <br />that even if covenants have been written they may not exist. It is not for the City to <br />determine their validity. If the City did make these decisions, it would be “practicing law <br />without a license.” Mr. Ollendorff added the City has no standing. <br /> <br /> Mr. Koby asked if the Council could envision two houses on that piece of property and <br />Mayor Addams answered it was not for the City to determine. Mr. Wagner said he finds <br />the covenant issue very confusing and would prefer to hear a definitive statement from <br />an attorney, rather than from one who is not an attorney. Mayor Adams said a <br />statement from an attorney would only be an opinion. The only person or persons who <br />can make a determination is the court. Mayor Adams said the reason he said the <br />“covenants may or may not exist because a) he has not read the covenants, and b) he <br />is not an attorney, c) certain covenants contain statements relating to maintenance <br />which may become moot points. The courts must make the determination. Mr. <br />Ollendorff said the position he expressed was not that of the City Manager but that of <br />the City Attorney: the covenants are not enforceable by the City; they are only <br />enforceable by private parties. Mr. Wagner said the Mayor may disregard the attorney’s <br />advice and Mayor Adams said he did not disregard it. Mr. Wagner continued that he <br />would like to see, in writing, what the attorney had to say about this issue. He asserted <br />that it is important for the Council to hear directly in writing from the City Attorney and <br />not as a passed-on opinion. <br /> <br />Ms. Welsch said she understood Mr. Koby’s point but she also looked at the subdivision <br />law which states there is space to legally subdivide under City Ordinances and in her <br />opinion since there is no strong tree ordinance yet, to bring trees into legal question on <br />this particular issue, so she does not see legally how the lot may be preserved. As a <br />Councilmember she has been advised to look at the law. She has also been advised <br />against legal contest, at cost to the City, so she considered what she regards as a legal <br />subdivision on the books, and it appears to be legal. She asked if by approving this <br />legal subdivision if we are putting the City into the position of being challenged? She <br />feels time and caution would be appropriate. Mayor Adams responded that if the <br />subdivision is approved by the Council, the City would not be party to any legal <br />consequences, because it would then be between the property owner and the <br />subdivision. It is up to the courts to determine. If the Council disapproves of it, then the <br />City could be party to a legal question. Ms. Welsch wanted to know if there was a <br />challenge, would it be the neighbors against the developer and the response was yes. <br />Page 11 <br /> <br />