COLA members are sounding the clarion call to environmentalists to fill up a Hubbard County courtroom tomorrow when a district judge will conduct a hearing on its lawsuit against Hubbard County.
The county, which is being sued over a variance issued last winter, filed a motion to end the case in its favor because, essentially, the Board of Adjustment acted within its purview when it granted a variance for extra docks to Eagle's Nest Landing, which is converting to a Planned Unit Development on 5th Crow Wing Lake.
Attorneys for the Coalition of Lake Associations filed briefs last week in opposition to the county's request for summary judgment, to end the case before trial.
In a case characterized by environmentalists as "having your cake and eating it too," the plaintiffs said Eagle's Nest had tried to do an end run around the county's Shoreland Ordinances, which grant resorts the right to convert to PUDs but condition those rights on curbing the number of docks that increase in density can impose on a lake.
More people on land, fewer boats offshore, is the tradeoff.
The county granted the required Conditional Use Permit for the resort to have three docks plus a community launch site, one dock for each cabin in the first tier of development along the lake.
The resort owners then sought a variance from the number of docks so each of the 11 cabins in the development could have one. The Board of Adjustment in March 2010 granted the variance permitting a dock for each residence, 11, plus the communal launch.
"Are they willing to accept the restrictions under the ordinance to gain the benefits that may be achieved by converting to a planned unit development?" asks COLA's brief. "This case involves an attempt by the County and the (resort owners Dan and Donna) Rehkamps to do an end-run around the legislative policy contained in the Shoreland Ordinance and to allow the Rehkamps to 'have their cake and eat it too.'"
The plaintiffs, COLA, the Middle Crow Wing Lake Association and Ed Mutsch, a 5th Crow Wing Lake resident, sued when they alleged the county didn't follow its own procedures in denying a variance instead of granting it and seemed confused as to what their mission was during last winter's vote.
As a result, they allege their properties have been harmed and a dangerous precedent has been set for lake congestion.
"The Board of Adjustment also expressed concern immediately after the vote that they had just created a 'legal problem' by voting to approve a variance when, as admitted by Mr. (Eric) Buitenwerf, (Environmental Services Officer) the approval was 'contrary to your findings.' This 'legal problem' is at the heart of this lawsuit," COLA's brief states.
Eight extra docks on the small lake will "impair the water quality, fish and wildlife, and overall condition of the lake," COLA maintains.
The two sides are also embroiled as to what type of variance was granted, a use variance or an area variance. Determining that issue will also determine the standard used to grant the variance.
If the variance is a use variance, it was not within the BOA's legal authority to grant, COLA maintains.
"A 'use' variance is one that 'permits a use or development of land other than that prescribed by zoning regulations,'" the plaintiffs' brief states.
"In contrast, an 'area' variance 'controls lot restrictions such as area, height, setback, density, and parking requirements.'"
Absent the variance, the plaintiffs argue, "use of the property as a residential PUD with eleven boat slips would not be an allowed conditional use under the Shoreland Ordinance" and Minnesota law.
The variance was a use variance because it allowed the Rehkamps to use the property in a manner otherwise prohibited under the law, the plaintiffs allege.
And as a use variance, the plaintiffs say the Rehkamps never demonstrated the "particular hardship" required for the BOA to grant it.
The hearing is set for Jan. 13.