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This is the Hagert garage with guest quarters and decks above it as seen from Shallow Lake. The low spot Board of Adjustment members were concerned about is in the lower left portion of the photo, marked by a small flag. The home is in the background of the left side of the photo. (Sarah Smith / Enterprise)

Grand Forks couple says no variance was needed

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A Grand Forks couple denied a variance in August will return to the Hubbard County Board of Adjustment next month to seek a declaration that none was needed for their $400,000 garage addition.

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David and Karen Hagert were denied an after-the fact permit and variance for guest quarters they added above their garage last year.

In a filing to the Hubbard County Environmental Services Office dated Dec. 20, attorney Joel Fremstad, the Hagerts' authorized representative, makes numerous legal arguments indicating the board erroneously denied the couple a variance, and alternately that no variance is even required.

One issue is what the small depression in the yard is. The home sits on Deer and Shallow Lakes, with a channel connecting the two. Fremstad contends the channel was man-made or at least improved upon by humans. The ESO maintains the yard depression is either wetlands or part of the ordinary high water mark of the confluence of the bodies of water, which makes the garage too close to the water.

The Hagerts were issued a letter after that August meeting to bring the garage into compliance.

Fremstad, in his variance filing, maintains the depression cannot be considered a body of water and shouldn't be figured into setback ordinances. Any pond under 25 acres can't be regulated by shoreland ordinances, Fremstad claims, unless the DNR commissioner declares it such.

The channel connecting the two lakes has no shoreland classification, Fremstad asserts, so the Board of Adjustment cannot arbitrarily assign it one, especially the most restrictive one, Fremstad said in a filing that resembled a legal brief.

Shallow Lake is classified as a natural environment lake, requiring a 150-foot setback. Deer Lake is classified as a recreational development lake, requiring a 100-foot setback.

The garage additions sits 70 feet from the depression, but more than 150 feet from Shallow Lake and more than 100 feet from Deer Lake, Fremstad and the builder maintain.

The depression may have been caused by power crews drilling to set lines, Fremstad suggested. It doesn't constitute a "public water" that is subject to regulation, he maintains.

"It must also be emphasized that no one is arguing that the garage itself is not permissible," Fremstad wrote.

Fremstad noted numerous other cases in which the Board of Adjustment has allowed building in the shore impact zone, and cited each by name, alleging inconsistencies by the Board in its decisions.

But the Hagerts maintain they cured the issue of not enough residential land suitable area for building by purchasing an adjacent parcel, making their enlarged lot 2.76 acres.

The board denied the variance on several grounds, one being the home and garage addition were concentrated on too small a parcel of land.

The addition of the extra land solves the density issue, the Hagerts maintain.

The board also based the original denial on the fact that the guest quarters exceeded the maximum 700 square feet of living space, exceeded the height requirement of 25 feet and members questioned the impervious surfaces the new structures added to the property.

Fremstad pointed out other inconsistencies in variances that allowed a 900 square foot guest home in the past and have allowed other guest quarters on lots that were markedly smaller than the Hagert lot.

And the Hagert garage doesn't exceed the 25-foot height requirement, nor does it add to the allowable amount of impervious surface, the attorney argued. Further, the structures are invisible from either lake, Fremstad said.

Calling the compound a "duplex lot," Fremstad argues there is ample room for both structures.

"Simply put, there is no density problem," Fremstad wrote. "The Hagerts have a large lot. They would have every right to add an addition on to their home that would have just as many square feet as the space that is above their garage... It makes no sense at this point to force interior portions of the garage to be removed."

Fremstad said it would cause "more damage to the property to remove the living area than to leave it... It would obviously also cost an enormous sum to either move the cabin or remove the interior improvements."

The variance request was also for a "graywater" septic system, which was denied. Fremstad said the Hagerts would connect the garage's septic system to the treatment system that services the house, if necessary.

Fremstad also accused the Environmental Services Office of delaying its disapproval of the building until it was completed, then acting.

Because the county is facing a lawsuit over the matter, county officials have declined to comment on the case.

The case should go before a revamped board on Jan. 17, 2012. Former COLA president Ken Grob has been appointed to replace BOA member Jerry Cole.

The Hubbard County Coalition of Lake Associations has been at loggerheads with the BOA over the issuance of variances and is currently suing the county over a 2010 variance.

Grob did not want to say how he would deal with any variance issues, but said, "I'm not COLA anymore."

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Sarah Smith is the outdoors editor. She covers Hubbard County, courts and breaking news.

(218) 732-3364
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