Do citizens forfeit their rights applying for a variance?
Privacy rights and property inspections clashed Monday at Hubbard County's Board of Adjustment meeting.
If a homeowner applies for a variance, does he or she give up a right to privacy, a Park Rapids attorney questioned. Or can public officials drop by anytime unannounced to inspect the premises?
Steve Bolton's long-running issues with the board began in 2003 when he applied for a variance to erect retaining walls that would stop erosion of his Lake Belle Taine property.
As part of his request, the plans called for him to plant vegetation - grass and trees - on the flat surface of his property to slow runoff into the lake after he'd finished shoring up the land. Instead he sanded a plateau area near the lake.
Monday the board considered and rejected revoking that variance for alleged failure to comply. The grass was barely seeded and the trees, still in containers, had not been planted, said Environmental Services Officer Eric Buitenwerf.
But the board said it seemed counterproductive to force Bolton to plant grass near the lakeshore on ground that will be used for recreational purposes. It will quickly wear out or wash out, the board reasoned. Bolton would also likely have to fertilize the grass to get it to grow on the sand and that would contaminate the lake.
"If you plant those three spruce trees there, in a few years you won't have any grass underneath them anyway," said board member Earl Benson. He and other members felt Bolton had substantially complied with the variance and it was nitpicking to revoke it.
But it was the interim compliance checks from Hubbard County's Environmental Services Office that perturbed Bolton.
He said a United States Supreme Court ruling mandates that regulatory compliance officers need "an administrative search warrant" to come onto a homeowner's property without violating a person's Fourth Amendment rights.
The Fourth Amendment protects citizens against unreasonable searches and seizures of property.
"I don't like people coming out and snooping around," Bolton told the board. "I don't want to give up my Fourth Amendment rights but I do want to get along."
He said it was invasive for "governmental officials coming on to your property anytime." Homeowners shouldn't have to sign away their Fourth Amendment rights by applying for a variance.
"I have long wondered if a person applies for a permit, if he doesn't expect somebody to come by and see if the work has been done," said board chair Charles Knight.
Knight said he doesn't want the ESO to be hamstrung policing variances. Violations and lapses, when found, should be directed to both the board and the homeowner, he said. Bolton agreed to plant the trees properly; the board declined to revoke the variance application.
In other action, the board:
-Approved a request by Reynold and Karen Brix to erect a storage shed on their Big Stony Lake property, over the objections of the Crow Wing Township Board. The Brixes, after measuring their property, learned they were five feet shy of the right-of-way needed to prevent encroachment on the county road. "They're the ones that stole the five feet," Reynold Brix maintained. A wetland near the property has resulted in the right-of-way shifting.
-Approved a request for Tom and Judy Stevens to put a small bedroom addition onto their Big Mantrap Lake home. "I'm wondering why they didn't build bigger," wondered Benson. "They could go six or eight feet more."
-Approved a variance request by Darren Ostendorf to build 82 feet from the high water mark setback on Lake Belle Taine. The Board agreed placement of the structure became a hardship when the DNR moved the lake's high water mark; the homeowners did the best they could under the circumstances.
-Approved a request by Daniel and Patty Saunders to add an upstairs bedroom to their First Crow Wing Lake home that exceeded the 50 percent allowable expansion under shoreland regulations.
"It's a reasonable request and there's no other place to put it," said board member Lou Schwindt.
-Denied a request by Richard and Rita Wilder for an after-the-fact variance requesting permission to leave un-permitted fill in the shore impact zone of the couple's Steamboat Lake property.
Richard Wilder repeatedly told the board it would create a hardship and a hole in his property, and suggested he'd appeal the matter to the district court if his request was denied. In the end, he agreed to work with ESO personnel in restoring the property to its original slope. But he questioned whether he was being picked on.
"There's a lot of other people out there with lawns like this, with sod all the way up to the lake," he protested.
Knight said the board considers the first 50 feet of shoreline "sacred ground."
-Tabled a request by Craig and Melanie Nybo to shore up their Lake Belle Taine property using a retaining wall in the shore impact zone. The Nybos will work with other agencies to see if they can correct drainage problems on their property coming from a farm uphill.
"This plan attempts to remediate the drainage but this plan is a band aid on the problem," said board member Oakley Williams. "There has to be a better solution in my mind."
-Approved an after-the-fact variance for Vickie Nelson to allow her park model trailer to remain on the site where an older mobile home sat on Lake Belle Taine, then allowed her a variance to build a screened in porch on the existing deck.
The Board reasoned it had granted a similar request last month, and it supports upgrading properties even if they encroach slightly on the road right-of-way. Nelson was told she didn't need a permit to move the new mobile home onto the property.
-Approved a request by Denny and Kathleen Ulmer to install a new septic system on their Fish Hook Lake property at less than the 10 foot property line setback.
-Approved request by John and Anne Nelson to build a deck on their Big Sand Lake property that goes further lakeward than the 15 percent allowed encroachment. The Nelsons could have legally built a deck further out on any other side of their home without a variance, so board members reasoned the impact of the request before them was actually less than could have been built.
-Denied an after-the-fact request by Tedd and Ronda Schulte to leave un-permitted shoreland alteration work in place. The board instructed an angry Tedd Schulte to work with ESO employees to move his mobile home back to the required 150 feet and possibly relocate a private access road on Shallow Lake.
Board members were divided as to whether the Schultes should remove existing vegetation because it would cause erosion problems.
Tedd Schulte was frustrated that he relied on county officials to advise him before he began the work, and said, "you need to look into a little education on your part for new property owners."
-Tabled a request by Long Lake homeowner Thomas Horsager to remodel an existing structure and add a bedroom and partial basement onto the home. The board said the project would entail massive renovations, and the homeowner could move the structure into compliance during the process. Horsager was directed by Buitenwerf to come back into the ESO this week to work out a suitable plan.
-Approved a plan by Rolfe and Nancy Ericson to build a lakeward deck onto their Lake George home that does not meet the 100-foot setback. In doing so, the Ericsons will remove a screen porch that encroached much closer on the water's edge.
-Approved a request by Steve and Cheryl Sypal to build a kitchen addition onto their Long Lake home. Although the lot didn't meet the 75-foot minimum width, the addition is on the back of the home away from the lake, the Board said in granting the request over a neighbor's objections.