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County must turn over documents in lawsuit

The Hubbard County Board of Adjustment granted Eagles Landing Resort 11 docking slips at a meeting earlier this year. That decision is at the center of a lawsuit filed against the board and the county. (Sarah Smith / Enterprise)

A district judge has ordered Hubbard County to turn over documents in an environmental lawsuit against its variance board and to pay the costs of the plaintiffs who were seeking the documents.

Meanwhile, a shift in policy has taken place at monthly Board of Adjustment meetings that may reflect repercussions from the suit.

Environmental Services Officer Eric Buitenwerf said in October the change was to comport with a 2008 Minnesota Supreme Court ruling that defines the criteria to use for finding a "practical difficulty," and hence, a variance.

It is unclear if the county is backing away from the criteria that got it sued. Because that is at the heart of the lawsuit, a judge may have to sort it out.

Coalition of Lake Associations president Dan Kittilson believes ultimately it may be harder to get a variance under the new criteria. He hopes that is the case.

And the lawsuit could ultimately be a referendum on Minnesota's open records law. Plaintiffs suggest Hubbard County may be acting illegally when Board of Adjustment members tour a property seeking a variance, discuss county business, yet make no record of the proceedings or the discussion even though a quorum is present.

The local suit that changed it all

COLA, the Middle Crow Wing Lake Associations and COLA member Ed Mutsch have sued the board and the county for failing to follow its own procedures last winter when it granted a Planned Unit Development called Rice Bay Association more dock slips than the law permits.

But the lawsuit lays out a series of what is alleges are missteps by the county and its boards that led to the litigation, including ignoring internal policies and procedures, plaintiffs contend.

Statewide, extra scrutiny is being paid to variance boards, which environmentalists have accused of becoming increasingly lenient in doling out variances.

The local process

When a resort converts to a PUD, it must do so via a Conditional Use Permit. Although the Hubbard County commissioners oversee granting a CUP, the development application process for Rice Bay began at the county planning commission.

There planning board members sent the request upstream to the county board with a recommendation it be approved with all 11 dock slips requested, even though the resort, then called Eagle's Landing, was only entitled to four - one for each cabin on the first tier of the development and one as a common launch site to be used for the day only. The PUD plan envisioned 11 cabins in four tiers of the development.

The plan then went to the county board, which balked at bending the law and granting the 11 docks.

The resort owners then, in what the plaintiffs call "an end run around the county board's decision," went to the Board of Adjustment, which granted the 11 docking slips under criteria the county no longer uses. Typically, a challenge to a county board decision must be made to a district court.

The extra docks threaten aquatic wildlife, the DNR maintains, by promoting more boat activity close to a wetland area near the shoreline. The resort owners contend they've been using 11 docks since an earlier CUP was approved in 2005.

No such documentation exists in the record, the plaintiffs maintain.

The plaintiffs sought information beyond what is included in the official county record, maintaining each board member used that background information to arrive at a decision in the process.

Another factor in the lawsuit is whether the Eagle's Landing request was for a "use variance" or an "area variance." That would determine which analysis of "hardship" the county should have used.

A use variance would require a finding of a "particular hardship," which the plaintiffs say was never reached. Simply for a resort to say it needed 11 docks would not suffice as reason enough, they maintain. The county says it must only find a "practical difficulty" as an obstacle in a landowner's reasonable use of his or her property.

The 2008 court criteria

The county states it used its "alternate findings of fact" form simply as a teaching tool for board members. Under those criteria, the variance board had to answer each of a series of questions about the land use restrictions in the negative to find a practical difficulty that would have allowed the extra boat slips, Buitenwerf directed that day last March.

The form provided to the board that day states: "If you answer even just one question 'yes' then the practical difficulty criteria have not been met and you must deny the variance application."

The board answered one question "yes," yet still granted the variance, a departure from the zoning ordinances.

"Hubbard County is now taking the position that the Board of Adjustment did not act improperly in granting the variance," the plaintiffs' motion states.

Meanwhile the county in October began using criteria similar to those suggested in the 2008 Supreme Court decision.

Called the Stadsvold case, the six questions probe essentially the same issues the county has always sought answers to. But now board members are not constrained to find affirmative or negative answers to each question, Buitenwerf explained in October.

That has resulted in some "shaping" of the answers to fit into an overall scheme of how a property qualifies for relief from zoning ordinances.

Board members have frequently answered the questions "Yes, but..." or "No, but..."

Those questions are:

• (1) how substantial the variation is in relation to the requirement;

• (2) the effect the variance would have on government services;

• (3) whether the variance will effect a substantial change in the character of the neighborhood or will be a substantial detriment to neighboring properties;

• (4) whether the practical difficulty can be alleviated by a feasible method other than a variance;

• (5) how the practical difficulty occurred, including whether the landowner created the need for the variance; and

• (6) whether, in light of all of the above factors, allowing the variance will serve the interests of justice.

"Because the alternate findings of fact form contained information that the Board of Adjustment relied upon considering the variance application, this should have been included in the record but it was not," the plaintiffs stated in their Motion to Compel.

Judge Paul Rasmussen agreed and ordered the county to turn over additional documents not found in the official record.

Violating state laws?

Should the county have taken minutes during a site visitation of the property, which the board does for all properties seeking a variance with a quorum present?

"Hubbard County's practices regarding these tours also present serious questions regarding violations of Minnesota's open meeting laws," the plaintiffs maintain.

The board's mental impressions on site are part of the record used to determine whether a variance is warranted and should be reflected in that record, the plaintiffs contend.

Hubbard County maintains the planning commission did not act illegally, when it simply passed on a recommendation for 11 docks, knowing the county board could take or reject that suggestion.

None of its boards acted "in an arbitrary or capricious manner," the county's attorney asserted.

The county acted reasonably, it maintains, and the court should proceed cautiously in reviewing those actions, the county asserts. The lawsuit does not impose the burden of doing the opposition's homework for them, Hubbard County argued in refusing to turn over the documents sought.

Trial in the case is set for the week of Feb. 14, 2011. The county intends to file a motion for summary judgment, asking Rasmussen to end the case before it can get to trial on the basis there are no factual issues for a judge or jury to decide.

But as more resorts convert to common interest communities, the county - and courts - will face these issues over and over.

Sarah Smith

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

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