Garage variance case heads to Court of Appeals
The case of a $400,000 garage that was denied a variance last summer is headed to the Minnesota Court of Appeals, but not because of the denial.
David and Karen Hagert, whose garage/guest quarters on Deer and Shallow lakes, has been the subject of nine months of legal wrangling, is being appealed due to the way it was appealed.
When the Hubbard County Board of Adjustment denied an after-the-fact variance to Hagerts last summer, the Emerado, N.D., couple announced their immediate intention to appeal that denial.
They did, but Hubbard County, a party to the lawsuit, said their notice of appeal was defective.
Hagerts' attorney, Joel Fremstad, served the papers on County Attorney Don Dearstyne. He did not serve the county board chair or auditor, as required under the rules of civil procedure, and was late in serving the papers, which were due 30 days after the adverse decision.
In his appeal to the appeals court, Fremstad is essentially saying the variance appeal was "good enough."
The county was on constructive and actual notice the variance denial would be challenged, he maintained. That's the purpose of service of process.
Scott Anderson, attorney for the county's insurer, called this the "absurdity test."
"Taken to the extreme, that none of the rules of civil procedure apply to appeals from board of adjustment decisions, the result would be that there are no rules whatsoever governing these proceedings," Anderson's brief indicated, calling the Hagerts' argument "smoke and mirrors."
Judge Paul Rasmussen dismissed the appeal Feb. 15, the day the garage was to be moved or town down. He sided with Anderson, that the appeal method was defective.
Fremstad filed an appeal of that ruling March 15.
The case will be placed on the Court of Appeals docket.
Meanwhile, the variance, that the garage exceeded guest cabin size, and is too close to the lake, remains denied.
But the legal proceedings have stalled any county attempts to get it torn down or removed.