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Hubbard County and co-defendants seek dismissal of lawsuit against Board of Adjustment, DNR

The attorneys for Hubbard County's Board of Adjustment, the DNR and the owners of a Nevis resort turned PUD are asking that a recently filed lawsuit against their clients be dismissed. They also question whether the plaintiffs have legal standing to bring a suit.

"Standing" is legalese for whether the groups or individuals that filed the lawsuit were the actual parties aggrieved when the board granted extra docking slips for Eagles Landing Resort, now Rice Bay Association development on Fifth Crow Wing Lake.

The plaintiffs are Ed Mutsch, a Fifth Crow Wing resident, the Middle Crow Wing Lake Association and the Hubbard County Coalition of Lake Associations.

The defendants recently filed a response to the lawsuit, which seeks an injunction to preserve the status quo until he District Court can sort out the wrangling over the boat slips.

The DNR's attorney is asking for a dismissal outright, maintaining the suit "fails to state a claim against the state upon which relief can be sought."

The Board of Adjustment's attorney asserts owners Daniel and Donna Rehkamp were encouraged and supported by the county board to pursue the variance adding eight dock slips to their conditional use permit after county board chair Lyle Robinson said the county commissioners did not have that power.

But the Board of Adjustment cannot undo the county board decision that granted the Rehkamps three boat slips, not the 11 requested. The Rehkamps' only remedy at that point was to appeal to the District Court, so the county board's suggestion they go to the Board of Adjustment may have been misleading advice.

But the defendants maintain a court challenge wasn't necessary at the stage where the county only granted preliminary approval of the plat. And they say the Board of Adjustment "has the proper and exclusive authority to order issuance of a variance from a zoning ordinance that places a restriction on the number of docks within a residential planned unit development."

The injunction sought to stop the Rehkamps from recording the final plat of the common interest community, but the county board approved that request March 17. The recorded plat, three weeks later, does not show a docking system, however.

The Rehkamps were seeking a central docking system in which several boats could be anchored, not multiple single docks, the defendants allege.

And the Board of Adjustment's attorney alleged DNR Fisheries supervisor Doug Kingsley erred when he said at the public hearing the variance request would set a detrimental precedent for future developers.

"Each request for a variance stands on its own feet and is considered according to the facts and circumstances of that particular request, regardless of what may occur on some other distinct parcel of land," the board's attorney said in the response.

The defendants also denied that Rehkamps were seeking a "use variance" for the eight additional dock slips.

"Docks and residential PUDs are uses allowed in the district in question, and relief from a density restriction placed on docks is nothing other than what is commonly referred to as an 'area variance,'" the response stated."

The attorney for Rehkamps responded that the resort built in 1950 always had "docks with 11 or more boat slips for the past 60 years."

The defendants point out the Environmental Services Office recommended approval of the 11` dock slips because the request better preserved the lake "by preventing repeated day use boat launchings and retrievals and accompanying damage to the launch area, emergent and floating vegetation and the lake bottom."

Because the lawsuit is in its embryonic stages, a court-ordered schedule will be issued to place deadlines on both sides and set a possible trial date.

Sarah Smith

Sarah Smith is the outdoors editor. She covers courts, business and breaking news in addition to outdoors events.

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