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Lawsuit against Hubbard County gets first court hearing

In the hotly contested legal battle against Hubbard County and its variance board, both sides came to an accord of sorts Thursday at a packed hearing in District Court: What are we doing here?

And they agree the lawsuit and Thursday's summary judgment hearing isn't just about three dock slips versus 11 at a 5th Crow Wing resort that obtained a variance last year as it converted to a planned unit development.

Attorneys Thursday would like precedents set as to how variances are handled, what types of variances require what kinds of analysis and who can sue over a variance.

James Reichert, attorney for Dan and Donna Rehkamp, owners of Eagle's Landing Resort, argued the plaintiffs, the Middle Crow Wing Lake Association, the Coalition of Lake Associations and 5th Crow Wing resident Ed Mutsch, don't have legal standing to even bring the lawsuit that is before the court.

"The plainitffs have to take some action to preserve their rights," Reichert said. "They didn't come to any of the public meetings to raise the issues they now pretend to raise in court."

The PUD conversion went through an initial hearing to present the plan, a hearing on the conditional use permit required to convert from a resort to a PUD and to the variance board after the county only granted the resort three docks plus a pubic launch on the CUP.

The Rehkamps said not having a dock for all the 11 units would hinder their ability to sell the lots and cabins.

The plaintiffs did not appear at any of the public meetings to protest the conversion or variance.

"You have to own the right you're bringing into the courtroom," Reichert argued. "There's not an aggrieved person here. "

Reichert said Eagle's Landing, now called Rice Bay Association, is operating just as it did before the conversion.

"There's no live controversy before this court that can be adjudicated," he said.

Attorney Scott Anderson, representing Hubbard County, said affidavits submitted on behalf of the plaintiffs "are insufficient under the law to establish damage" to their claims of harm or any damage to the lake.

And that was something Judge Paul Rasmussen honed in on.

He kept asking both sides where a demonstrated, factual basis for the damage the plaintiffs claim would happen to the lake exists in the records of the county meetings.

At the variance hearing last year, DNR Fisheries Superintendent Doug Kingsley said more boat traffic tended to disrupt aquatic life near docks, but he also said the DNR already had a permit to remove vegetation in the affected area.

"There will be no change to the property, no detriment to the neighboring property," Anderson said. "The PUD conversion would likely minimize the impact on the lake."

And he objected that the court was being asked to "second guess the facts" put before the Board of Adjustment a year ago.

"There only needs to be a rational basis for the decision."

"What if I make a finding that one or two of those (factors granting the variance) is shaky or erroneous?" Rasmussen asked.

Anderson said one of those factors is whether denying a variance "would be in the interests of justice" and urged Rasmussen to consider the "totality of circumstances" rather than single out one factor that may not have supported granting the variance,

The BOA has the authority to issue variances and did here based on the facts before it, Anderson argued. The resort/PUD met all setbacks and the board was allowed to grant relief "from any official control" limiting the docks to three.

Any inconsistency between the CUP, which granted three docks, and the variance, which granted 11, could be reconciled by amending the CUP, he said.

"The (county) board specifically sent Rehkamps to the BOA and understood there might be a variance granted and the conditional use permit would come back to them," he said.

Rasmussen questioned whether a standard summary judgment motion analysis applied, given the complicated facts of the case. The lawyers, not surprisingly, disagreed.

By requiring an "aggrieved person" to have to show up at the hearings to register opposition "would be grafting a new requirement" to the law, plaintiffs attorney Brian McCool argued.

He said that would impose a "huge burden" on any persons dissatisfied with a governmental action, to require them to attend a public meeting and have their dissent recorded for posterity.

The type of variance granted "is a critical issue in this case," McCool said, arguing that it was a "use variance" the county incorrectly analyzed during the BOA meeting. And the Rehkamps never showed there was a hardship that necessitated granting the extra docks. Inability to sell the properties cannot be considered a hardship because hardships can't be based solely on economic factors, McCool said.

But Rasmussen once again asked where there was evidence in the record supporting any harm to the lake.

"If I have one dock and 1,000 boats coming in and out or if I have 20 docks no one uses," Rasmussen asked, "is there evidence in the record where I go either way on that?"

Dan Rehkamp said last year the lake would get far less use by permanent residents than resort guests, who tend to use the lake hard knowing they are only there for a week.

By tinkering with the CUP, the board stepped outside its authority into legislating, McCool argued. Factors for conditional use permits are enumerated in the law. Adding extra boat docks was "legislating" on the part of the variance board, he said.

"The Board of Adjustment doesn't make legislative decisions," McCool said.

Rasmussen said he would take the matters under advisement and rule as quickly as possible. It is likely that regardless of the way he rules, one side will appeal. Trial, set for March, will likely not occur, Rasmussen agreed with the attorneys.

Holding up a 4-inch stack of papers, he told the attorneys, "You left me quite a bit of material to chew on. These are interesting, complex, novel issues."

The lawsuit has attracted the attention of environmentalists outside the county, who wonder if it will set a precedent in the way variances are granted or denied.

"Not all of us are in favor of this lawsuit," said Bill Jones, president of the Upper Bottle Lake Association, who attended the hearing Thursday. "I want that to be known."

Sarah Smith

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

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