Judge agrees with lake association variance challenge
Hubbard County lake activists have won a lawsuit challenging a variance granted for a Crow Wing Lake planned unit development.
District Judge Paul Rasmussen ruled Feb. 23 the county's Board of Adjustment did not correctly or completely assess the factors for granting 11 boat slips to Eagles Landing Resort, which is converting to a PUD on 5th Crow Wing Lake. The judge vacated the variance.
Resort owners Dan and Donna Rehkamp received a conditional use permit one year ago to convert to the PUD, but the county board would only allow three permanent dock slips and a daily use dock in granting the permit. That's what the ordinance allowed and that will now stand in place of the variance.
Rehkamps wanted 11 slips, one for each unit in the four-tier PUD, maintaining docks for each residential unit would make the properties more salable.
Opponents argued the extra boat traffic would disturb aquatic wildlife and put too much pressure on the small lake. Eleven slips violated the county's own ordinance, they said in filing suit.
Rasmussen's ruling states lake access for the back lots will now be provided by the communal launching area.
The ordinance specified only one dock slip per unit in the first tier of development was allowed along with a communal dock, so Rehkamps, after obtaining the conditional use permit, went to the county's variance board for the additional slips.
Those were granted in March 2010.
The Hubbard County Coalition of Lake Associations, COLA member Ed Mutsch and the Middle Crow Wing Lake Association sued, maintaining the board didn't follow the ordinance or its own procedures.
Rasmussen essentially agreed in his ruling, citing a 2008 Otter Tail County case that has become a blueprint across the state for granting variances.
What Rasmussen did not decide, however, was what type of variance was at issue.
The Otter Tail County case differentiates between "use" variances, which permit an exception to the land use, or an "area" variance, which involves exceptions to lot restrictions such as setback and density requirements.
An area variance requires analysis for finding a "practical difficulty." A use variance requires a more rigorous "particular hardship" analysis.
Rasmussen noted it was up to the Legislature, not the courts, to more fully clarify those types of variances.
"Furthermore, it is not necessary for this Court to determine the type of variance as the application reviewed by the BOA fails under either standard," Rasmussen ruled. "In addition the County did not follow the requirements of its own ordinance."
In other words, the Board of Adjustment lacked the reasons to grant the variance, the judge ruled.
Simply because the owners wanted more dock slips was not sufficient reason to deviate from the ordinance, Rasmussen noted.
"Indeed, there would be no 'need' for a variance if the landowner would have presented a development that complied with all of the requirements of the ordinance," the ruling said.
COLA president Dan Kittilson praised the ruling.
"I think what we want is the variance process to be fair and consistent and open," he said. "We want to work to protect our lakes. Our goal is to work with the county. Their policy and mission aligns very well with ours."
The county's Environmental Services Office has already incorporated the nine Otter Tail County factors into its analysis in granting or refusing a variance request.
Environmental Services Officer Eric Buitenwerf would not say if the county is thinking about appealing the ruling.
"I have no comment at this time," he said.