Variance board accused of violating Open Meetings Law
Hubbard County's beleaguered Board of Adjustment came under fire again Monday as the attorney for the Coalition of Lake Associations accused members of illegal conduct.
Going on site visitations as a group to determine whether variances should be granted is a violation of Minnesota's Open Meeting Law, attorney Chuck Diessner alleged at the board's monthly meeting.
Board members denied discussing requests for variances or other county business on those trips, but Diessner said that's beside the point.
If a quorum of board members gathers in any one place it's an open meeting, he asserts, and should be recorded. Even in a county van.
"I usually sit in the back of that van and I can't hear anything that's being said in the front seat," BOA member Earl Benson noted.
"Maybe we need to get an opinion from the county attorney," member Jerry Cole suggested.
Aside from the alleged meeting violations, the board also came under fire for conducting site visitations in the winter when snow obscures property lines, wetlands and other features that are integral to making a decision on a variance, the COLA representative for Little Sand Lake maintained.
"It didn't give us a good understanding of what the lot looked like," complained Mary Jo Groehler of a controversial variance request adjacent to a pending planned unit development conversion on Little Sand.
The variance request attracted numerous lake officials, who not only urged the board to deny it but also criticized board members for trying to assess the physical characteristics of the lot in three feet of snow.
The Little Sand request on a triangular piece of property adjacent to the Northern Star Resort drew immediate objections.
R&R Partnership requested a variance to build a three-bedroom spec home off County Road 7 south of the resort, which is converting to a planned unit development. And who exactly R&R was and its relationship to the resort sparked a heated debate.
"There is common ownership between that lot and the resort," asserted Little Sand Lake Association president Maggi Yerkes. The fear is that combining the two properties into the eventual PUD would not only strain density requirements, but would accomplish the development of a lot that previously lacked the setback requirements. Yerkes urged denial of the request.
R&R obtained a warranty deed on the resort, which was foreclosed on in 2009, agent Tom Miller explained. R&R is apparently Roger Pabst and Robert LeSage of Redwood Falls. Neither attended the meeting.
The separate lot was part of the original 1988 plat and had previously received an 85-foot setback variance to place a residential structure on the property. The variance was granted because a hill on the lot obstructed the view of the lake.
But the lot was never developed as part of the plat and was eventually subdivided between the resort and adjacent property owners, Miller told the board. That subdivision rendered the prior variance of questionable validity, opponents argued, even after the halves were rejoined.
Miller and Kevin Lindow of Lindow Surveying sought the variance to the nonconforming lot to improve it for sale. The lot lacks the required 20,000 square feet of Residential Lot Suitable Area building space. The lot has a wetland area near the highway; surveyors envisioned nestling a home in between that and the lake, leaving the lot more than 5,000 feet short of RLSA.
R&R was also seeking a variance to place the septic system on the property lines because the lot lacked the space to put two drain fields in it.
Miller explained the absorption areas could each be moved 10 feet within the side lot lines, but that still bothered board members.
"My concern is about the septic system being on the lot lines and the closeness to the property on the other side," board member Charles Knight said.
Opponent Dan Kittelson, a Little Sand Lake resident and COLA president, reminded the board its mission was to police the "uncontrolled use of shoreland property," while preserving the lake quality.
"So far your concern is the side lot lines," he said. "I haven't heard a lot of talk about the lake."
Putting a residence and septic system close to the lake has the potential to leach nitrates and phosphorus into clean waters, he said.
"You cannot find a practical difficulty or hardship here," Kittelson insisted. "That septic system is too close to the lake."
But Miller pointed out the state setback requirement for septic systems is 75 feet; Hubbard County requires twice that.
"The Hubbard County Board in its wisdom made the setback larger to minimize the impact on the lake," said DNR Fisheries supervisor Doug Kingsley, who urged a denial of the variance.
Diessner said in reviewing the statutes, "once you have common ownership you're not permitted to do anything with the lot."
If the previous owners could not develop the lot, Diessner questioned why it should be any different now.
The board denied the variance request 5-0, especially troubled by the ownership issue.
In other matters the board:
n Tabled a variance request from Brent and Catherine Prouty for dock slips for the same resort/PUD. Proutys, who did not attend the meeting, were seeking relief from an ordinance that would allow only three docks. They wanted nine.
This is precisely the subject matter of a lawsuit the county is currently facing on another PUD on 5th Crow Wing Lake.
"Given the pending lawsuit between the county and COLA, we thought it was better to wait," Yerkes said the lake association advised the applicants. "We would recommend denial."
Due to snow cover the resort was not part of the site visitation, in which the county van got stuck in the snow.
n The board also tabled a request from a Pickerel Lake homeowner to subdivide the "tornado lot" because deep snow prevented its viewing also.
Gail Bliss and Linda Sharkey, whose parents' home on a point on Pickerel was demolished in a June 2008 tornado and had been rebuilt, were seeking a variance to divide a riparian lot into two lots. The second lot would lack suitable RSLA. The request will come back in April when the lot can be accessed.
n It granted a variance for Paul and Leslie Bellig to move and add on to a guest cabin on the Lake Plantagenet property that would contain a wood shed. The additions would exceed the maximum 700 square feet allowed and be out of compliance with a 10-foot setback on the side lot. The affected neighbor wrote a letter in support of the project and said he would even assist in the building.
n The board also granted a variance to Mark and Linda Halbur to subdivide a Deer Lake lot into two tracts. One would not meet the minimum lot size. Attorney Mark Thomason said the case is currently being litigated and the parties have spent a great deal of time working out a solution that was palatable.
"A resolution is long overdue," said Cole.
n The board also approved a variance for Margaret Ann Heisel and Frank Kurth to place a new residence on a Potato Lake lot. Contractor Joe Mastley brought the issue before the board since the house has changed shape, but not footprint, since variances were granted in 2006 and 2007.
"The footprint isn't changing. The roof is," he said.
"If not for the existing variances they could move the whole thing back but we're bound by the previous actions taken on the property," Cole noted. The home sits closer than 100 feet from the ordinary high water mark of the lake.
After the meeting Diessner asked for a few extra minutes to address the board and struck a more conciliatory tone.
"It's important to recognize that COLA is not opposed to what you do," he said. The group has been monitoring board meetings since August and has voiced objections to numerous variance requests.
"We appreciate what you're doing," Diessner continued. "It's a difficult job."
He said in monitoring the number of variances granted, COLA members frequently agree with board actions or recommendations from Environmental Services Officer Eric Buitenwerf.
In only 9 percent of the cases where the board followed Buitenwerf's recommendations on a variance, COLA disagreed.
"Ninety percent of the time we agree," Diessner said.