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County files for summary judgement to end case in its favor

Hubbard County wants out of a lawsuit against it and its variance board, arguing the Board of Adjustment correctly applied the standards for a variance it issued last March to a resort converting to a common interest community.

The county's Minneapolis attorney has filed a motion for summary judgment, asking Judge Paul Rasmussen to end the case in its favor.

Plaintiffs suing the county maintain the board acted "arbitrarily and capriciously" in granting 11 dock slips for the former Eagle's Landing Resort, now Rice Bay Association.

The Middle Crow Wing Association and the Coalition of Lake Associations argue only four docks were warranted under a "use variance" standard the board misapplied.

The resort, owned by Dan and Donna Rehkamp, is on the 5th Crow Wing Lake, considered one of the "middle Crow Wings.

"The Hubbard County Board of Adjustment's decision to grant the Rehkamp's variance request was reasonable and supported by evidence in the record," the motion asserts.

The variance sought was an area variance, "those governed by the practical difficulties standard" of a 2008 Supreme Court ruling "that controls area, height, setback, density, parking requirements, etc., for uses that are permitted in the district," the county's motion says.

"All we are dealing with in this requested variance is a density determination: i.e., the number of docking spaces allowed," the county's motion states. "Docks are allowed, mooring is allowed, use is allowed. Therefore this is an area variance."

The county argues that there are no "issues of material fact" that should proceed to a judge or jury for trial.

"A material fact is one that, when resolved, will affect the result or outcome of the case," the county's motion states.

Essentially the county argues it would be a waste of the court's time to allow the litigation to continue when legally, there's nothing to wrangle over.

The defendants, as expected, will file a motion countering that theory, contending the case should be settled by a judge or jury during trial, not before.

The number of docks is important to environmentalists, who maintain the small lake already has too much boat traffic.

But the Rehkamps say their resort has always operated under the assumption it was entitled to 11 docks.

"It would reduce the overall impact on the lake by taking away weekly transitional resort traffic and converting the property to individual homeowners, who statistically use the lake intermittently instead of daily," the county's motion states.

Trial is tentatively set for February 2011 but a ruling by Rasmussen on the summary judgment motion will determine if a trial should even take place.

But because the case's central premise is what type of variance was granted and both sides differ markedly on that matter, it may need to proceed to trial just to sort that issue out.

Sarah Smith

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

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