State law says property owners can rebuild aging structures on lakes
A year-old state law that gives property owners the legal right to replace substandard structures threatens to turn local environmental ordinances on their ear.
Hubbard County commissioners and Environmental Services director Eric Buitenwerf engaged in a spirited discussion Wednesday as to what the ramifications of the law will be on the county's stricter prohibitions on such liberal construction allowances.
The state law essentially runs counter to a Hubbard County ordinance prohibiting homeowners from rebuilding nonconforming structures without demonstrating a hardship or qualifying for a variance. It allows owners of nonconforming properties to rebuild their lake homes in the exact spot as their old structure was.
No new "footprint" is allowed, but traditionally owners of aging lake cabins have not been able to tear down an older structure and rebuild on the same foundation. Those older structures were designated as nonconforming when stricter environmental requirements were passed with the intent to reduce the carbon footprint lakeside cottages posed to the ecosystem.
Hubbard County commissioners discussed the ramifications of the law Wednesday at their regular board meeting, because a county permitting process also allows lakeshore property owners to add 50 percent to the size of their nonconforming cottages, provided the homeowner meets certain conditions.
"We've never said much about it because we were hoping the law would be repealed," newly re-elected commissioner Lyle Robinson said. State lawmakers seem inclined the let the rebuilding law stand, he said, and now counties must reconcile their own ordinances with it.
"The theory on zoning is that when you have substandard structures that are too close to the water, that are too big or too small that wouldn't be allowed under our current ordinance, when those structures cease to exist, they're eliminated," said commissioner Greg Larson, the former county attorney.
"When they've gone beyond their useful life they're gone," Larson said. "The idea is that all of these cabins that are built on the shoreline eventually get built back when they fall down or burn down or get hit by lightning. You don't replace them. You move the new cabin back to where it belongs" to meet stricter setback requirements.
In the end, the board took no action after discussing several options including a variance process.
"What difference will it make if the 'God Squad' grants all of the variances anyway?" Robinson asked.
The Board of Adjustment, which oversees the issuance of variances, has been dubbed the "God Squad" by property owners and county officials because of the power it wields in overseeing controversial property issues.
The commission's inaction Wednesday means that homeowners can avail themselves of both laws. They can replace their aging abodes, providing they stay within the same floor plan under the state law, then take advantage of the shoreland ordinance, Section 704, to apply for a one-time permit to enlarge an existing nonconforming structure by half - not necessarily in that order.
They could enlarge first, then replace a home that sits right on the waterfront and is not in compliance with setback requirements.
In the past, the county prohibition against doing just that prompted vigorous public debate and lawsuits as environmental officials tried to contain the spread of lakeshore developments on the water's edge.
Homeowners meanwhile argued that the prohibition on replacing their older structures on the same foundation amounted to an unconstitutional taking of their property.
"This law came out of the blue," Larson said. "It's so contrary to zoning theory or zoning philosophy ... when it came in we thought it was a mistake."
Commissioners met with state lawmakers last year to seek answers as to the permanence of the law. It's still on the books.
Larson said after Wednesday's board meeting he thinks any discussion about reconciling the county and state laws it moot.
"To me, the answer is obvious," he said. "State law is state law. Our ordinance is meaningless. It should be consistent with state law or simply be repealed.
"If they can tear down a substandard structure and replace it, in my mind we shouldn't be allowing them to replace it plus 50 percent. But the state law says they can do it and we can't prohibit it.
"The state law trumps us," he added. "They're bigger than we are, simply put."