Eagles Landing Resort subject of heated debate again
Just when the ink dried on a lengthy lawsuit and appeal against Hubbard County over a PUD variance, commissioners may have voted Wednesday to position themselves for COLA versus Hubbard County, version 2.0.
The issue of Eagles Landing Resort, aka Rice Bay Associates, came before the board to reconcile the 2009 Conditional Use Permit with a 2012 Appeals Court decision on the Fifth Crow Wing entity.
The resort began the conversion to an 11-unit Planned Unit Development in 2009.
A CUP was approved then with a condition that "the docking system consist of three permanent boat slips plus a launching dock as permitted by the Ordinance." The owners had requested 11 slips, one for each unit.
Owners Daniel and Donna Rehkamp then took the matter before the county's Board of Adjustment to get a variance for the 11 permanent dock slips, which were granted and were the basis of the lawsuit filed by Coalition of Lake Association members and members of the Fifth Crow Wing Lake Association.
The county's outside legal counsel indicated recently the condition on the CUP was unusual and possibly inappropriate since any person has a right to seek a variance from the Shoreland Management Ordinance and the condition was worded to potentially deprive a person of that very right. Attorney Scott Anderson questioned whether it was a real condition or merely part of the discussion preceding the vote.
And conditioning a CUP upon compliance to the statute is moot since compliance is already mandated.
The Court of Appeals remanded the case back to the county for two housekeeping matters, which the county executed last summer.
But because the original CUP and the variance no longer meshed, one granting three boats slips, the other granting 11; the county was advised to amend the CUP to align with the court ruling.
It wasn't that simple.
The Planning Commisssion, which is where the CUP process starts, recommended removing the condition concerning the number of boat slips allowed (three). In doing so, it adopted findings of fact to support the removal.
When the CUP came to the board Wednesday, COLA members Ed Mutsch and Chuck Diessner objected. So did commissioner Greg Larson, a property attorney.
"Didn't the variance change the CUP?" he asked as Daniel Rehkamp and his attorney nodded. "We don't have the authority to change a CUP," Larson added.
"You have two documents that conflict," explained County Attorney Don Dearstyne. The request to remove the condition on the CUP was to get it into alignment with the variance.
"We have new information not brought before the board," said Diessner, who is also an attorney.
"Legally when a variance is granted on a CUP, Minnesota law requires you to amend the CUP," he said.
"I don't even know why this is in front of us," board chair Dick Devine said.
The two sparred about how much time the COLA members should be allowed for discussion.
Mutsch said he and Diessner were not opposed to amending the CUP to allow 11 dock slips. But he said the PUD doesn't need a launch site if every unit has its own mooring.
And because the launch site would get the most traffic and cause the most harm to the ecosystem of the lake, the COLA members argued it should be conditionally removed from the amended CUP.
"The law says no ramp is needed when there is a public access available," Mutsch said. "I launch on Sixth Crow's public access."
Rehkamp said the Hubbard County Sheriff's department and DNR both use his launch, as do other lake residents.
"I know exactly who goes in and out of that launch," Rehkamp said, adding that he washes boats destined for the lake.
"My sole intent is to protect the body of water I live on."
"Once he chose to convert to a PUD, the ordinance doesn't allow him to use that that way anymore," he said of the launch. "He can't let the sheriff or the DNR use it. It's for the property owners" solely.
The PUD can no longer operate as a resort, Diessner said.
Environmental Services Officer Eric Buitenwerf said the boat ramp "predates the ordinance so there's a legal nonconformity."
The COLA members disagreed.
"This is more complicated than it should have been," commissioner Kathy Grell said. "We can only act on the 11 slips, not the launch."
"That is wrong," Diessner said.
With commissioner Lyle Robinson absent, the board voted 3-1 to make the amendment that allowed the launch plus 11 slips, with Grell voting no.
The COLA members left the meeting clearly unhappy.
But the county may be in luck. COLA members are still collecting donations to defray legal expenses of the first lawsuit, so members might be hesitant to jump into another one.