Hubbard County BOA, COLA continue to differ on variances
Ten days after Gov. Mark Dayton signed a new law into effect regulating the granting of variances, Hubbard County's Board of Adjustment is once again at loggerheads with the local Coalition of Lake Associations.
And once again, the Environmental Services Office is tweaking the criteria for its board to analyze in granting or denying variances.
Monday, the BOA and COLA differed frequently over variance analysis during the monthly meeting. COLA representatives accused the beleaguered board, the defendant in a pending lawsuit, of being inconsistent in upholding its own shoreland ordinances. The lakeshore organization has monitored BOA meetings since suing it last year over a variance.
COLA representative Chuck Diessner especially objected when the board appeared on the verge of granting an after-the-fact variance for a deck built much larger than the permit allowed on an environmental lake.
"They walk out the door and build whatever they damn well please," Diessner said of homeowners once a variance has been granted. "I'm concerned about the message you're giving the public. "Do you enforce variances or don't you?"
Diessner said landowners "should not benefit from their illegal conduct. There should be an incentive to live by the terms of a variance you've granted. I don't think there's any incentive here. It's not right, it's not fair and it's not consistent."
A hardship is no longer required under the law. Now property owners must prove a "practical difficulty" exists preventing them from complying with an existing ordinance.
According to the statute, a practical difficulty "means that the property owner proposes to use the property in a reasonable manner not permitted by an official control; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality."
Those three factors were incorporated into the board's analysis Monday, the second time the board has amended the criteria in the last 18 months. Prior to this month's meeting, the board weighed six factors from a 2008 Otter Tail County variance case the Minnesota Supreme Court suggested following.
Monday, the disagreements started early when the board considered a tabled request from Reynard and Marlynn Stendell to replace their aging Little Mantrap Lake cabin with new construction in the same footprint.
Representative Dana Morrell said the new home would have a second floor and a septic system drain field, not the current tank system in use now. The second floor would be for storage, Morrell said.
That brought objections from Diessner, who predicted the second floor would soon be converted to living space. The nonconforming lot can only have a 50 percent residential addition under the ordinance, he argued. This proposal would have enlarged the structure 54 percent and the drain field would need a setback variance.
"He's creating the need," Diessner said, arguing one of the new law's factors. "The septic system is too close to the water. If it fails there's nowhere else to put it than on top of the system that failed."
The home is 56 feet from the lakeshore. Another lake resident questioned the septic system, too.
Dan Kittilson, president of Hubbard County COLA, urged the board to force the homeowners to put in a holding tank in addition to the proposed pressure bed system. He said other lake residents have been forced to install holding tanks in similar situations.
"Consistency," he reminded board members.
The board approved the request 5-0. In other action, it:
n Granted a variance for a Grace Lake family to subdivide a nonconforming non-riparian lot created out of pastureland.
"There's no impact whatsoever on Grace Lake," board chair Jerry Cole observed.
n Granted an after-the-fact variance to Alan Treece that conditioned a second variance request. Treece said his East Crooked Lake residence's distance from the lake was miscalculated by the previous owner. He asked to screen in a porch built in the bluff impact zone and add a deck 9½ feet into the shore impact zone.
The board determined the bluff was not impacted and the encroachment from the lake was minimal.
n Denied a request by James Eikos to replace an existing Little Mantrap Lake cabin with a two-story home on the same footprint that encroached on the side lot. But when he presented an agreement from the neighbor allowing the drain field positioning, the board recommended a new variance, which was then approved.
Member Lou Schwindt said if the cabin is moved back four feet, the only encroachment would be in the drain field setback while the cabin was brought into compliance.
A platform porch that jutted out into the shore setback would have minimal impact if gutters were added to re-direct the water runoff. So the motion to allow Eikos to encroach into the drain field was passed, in turn allowing the porch in the shore impact zone.
n Approved an after-the-fact variance request by Darren Ostendorf on new construction on Lake Belle Taine. The builder had inadvertently created a gap between the house and deck that was caught on inspection. Ostendorf ran stairs from the deck off the side of the platform, not the front. That brought it into compliance, the board noted.
n Tabled an after-the-fact request by Earl Johnson to allow a storage shed to remain in place that did not comport with the 150 foot setback on Shallow Lake.
Once again the board was on the verge of granting the request although Johnson did not attend the meeting.
"It's more attractive than the outhouse which is closer to the lake" and grandfathered in, Cole said. "Moving the shed would cause more environmental damage" to the lake than leaving it in place, he reasoned, by removing several trees.
The family was elderly and likely needed the shed near the lake to store fishing gear in, board members theorized.
Diessner once again expressed "disappointment" in the analysis. "This is just speculation," he chided the board. "You can't grant variances built on speculation."
Diessner suggested the request be denied or conditioned on the owner's removal of the outhouse.
"The landowner created the need for the variance," Diessner argued. "It's not a balancing test anymore,' he said of the new law's criteria. "It's an absolute."
"I thought we couldn't make tradeoffs," board member Earl Benson said.
That prompted Environmental Services Officer Eric Buitenwerf to say, "It's a gray area. I'd have to consult legal counsel. It's a new statute we're operating under."
Board members voted to table the request until they had more information to work with. Disabled persons can request variances from ordinances if a disability prohibits them from complying.
But Buitenwerf said that was beside the point in this case. The shed is simply too large under the ordinance to remain that close to the lake, he said, even though it has been in place for many years.
n Denied two variance requests by a new Grace Lake homeowner who began making shoreline restorations under the mistaken impression he could.
Deane Stinar said through the sale process last summer, he was assured by a realtor and the former homeowner he could make improvements to a permanent ice shelf on his beach and remove vegetation that included poison ivy.
The day after he took possession, he said he removed two large willow trees on the ice shelf and sprayed Roundup on the vegetation to get rid of the poison ivy.
"The DNR approved that product," he said of the weed killer.
"It's quite obvious quite a few trees were removed," Cole said.
Stinar said after the removal was accomplished he got a shoreline restoration plan from the county, which he was appealing. The plan, formulated by ESO inspector Scott Navratil, was to replace the trees and vegetation and leave the first 25 feet from the water's edge alone to promote regrowth and prevent erosion.
Navratil said he wasn't a pesticide expert, but "any chemical you use there is going to end up in the lake."
The cabin sits 46 feet from the water's edge.
"Not using 2,100 feet of my property doesn't make sense to me," Stinar said, indicating he wanted to plant grass in that area.
"Natural vegetation filters runoff to the lake," Kittilson said, supporting Navratil's recommendation. "Kentucky bluegrass is one of the nastiest aquatic invasive species."
In his second variance request Stinar asked to remove the ice shelf for visibility and safety reasons. He said adults couldn't see children playing on the beach or boaters near the shoreline.
"We don't feel we have full access to our property," he maintained. "We are not willing or anxious to do any harm to Grace Lake."
"I'm opposed to removing the ice ridge to make a beach," Schwindt said, noting it would require the board to act directly opposite to action it required in the vegetation appeal. Both requests were denied, but the request to remove the ice shelf was a 3-2 vote because Stinar said his neighbors had all removed theirs. Board members Charles Knight and Arnold Christianson questioned whether Stinar was being singled out.
n Approved a variance request by the Hansel family on Long Lake, again over Diessner's objections, to place an addition onto a nonconforming residence that does not meet the 100 foot ordinary high water mark setback. The addition of a bathroom and enlargement for the kitchen was too large under the ordinance, Diessner said.
"This variance is based on the landowner's want, not need," he said.
n Approved a variance for Perry Pierce to place two park model trailers on a Kabelona river lot he recently purchase from Greg and Traci Dravis, whose name was on the request.
Complying with a highway setback would have forced him to cram the mobiles close to the river on one corner of the lot, Pierce explained. This way they can be spread over two parcels further away from the river, he explained.
"If our purpose is to preserve the waterways this is the way to do it," Schwindt said.
n Tabled another after-the-fact request from the Johnson family on Shallow Lake when the family could not attend the meeting.
Conrad and Carol Johnson asked for a reprieve for a deck that was not built to specifications according to a variance granted in 2006. The deck wrapped around one side of the house and was two feet wider than the plans indicated.
That was the case that drew Diessner's ire. He said although "all variances are difficult," the board was ignoring the bigger picture.
Not only had the Johnsons violated the variance, but they had also located a trailer home closer to the lake than another variance had granted, Diessner asserted.
Diessner recounted the advice he was given when he built his own home on Potato Lake. It was suggested he build his home 100 feet back, then get a variance to extend his deck into the shore impact zone. He was assured it could be approved.
"Hubbard County should not be a place where you can come back and do something later" that skirts the intent of the ordinances, he said.
The board tabled the request until the applicants could appear and explain why the deck wasn't built to specifications.
"They damn well should understand this is what they should do," Diessner said.