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Access to property on variance law amendments set for public hearing

Two additions to Hubbard County's revised variance ordinance, one concerning county access to private property, could raise some hackles at the upcoming public hearing June 15.

They did with the county board Wednesday.

One provision gives county employees access to private property "for the purposes of administering and enforcing the pertinent (shoreland) ordinances."

"I don't want someone on my property without permission," objected commissioner Cal Johannsen.

Trespassing issues have frequently arisen when county employees such as appraisers have stepped on private land to fulfill a public duty. Board of Adjustment members go on site visitations for all properties requesting variances. Trespassing issues have also been raised there.

"It is implied by the zoning powers granted to counties in statute that a county should have the ability to access properties as a necessary part of administration and enforcement, but the statute does not specifically say this," said a memo to the board from Environmental Services Officer Eric Buitenwerf.

"Thus we are proposing to place a couple of sentences into these ordinances to change this ability from being implied to expressly stated so no questions can be raised on the matter," Buitenwerf's memo continues.

Language in building permit application forms covers the certain items being requested "but does not give the county the authority to go on the property for inspection," Buitenwerf told the board.

When Johannsen asked if such language allowing visitation for county business was legal, county attorney Don Dearstyne said it was.

And Buitenwerf said some property owners build without a permit and if they are allowed to block county access to their property, it could stall enforcement proceedings indefinitely.

"People with violations would refuse permission," Buitenwerf said, using it "as a blockade."

"There should be notification," Johannsen argued. "That's one of the biggest things I get complaints on" from constituents.

"I hear it about township assessors," Johannsen said, shaking his head. "I don't want to open a can of worms with the environmental people doing the same as the assessors."

Johannsen said he was worried that overzealous county employees would potentially be "ramrodding over people's property."

Dearstyne said permission to go onto private property would be limited.

"You still need permission to go inside," he said.

But sometimes permission to access property isn't realistic.

"We have a community of temporary individuals only here on weekends," Dearstyne said. "Eric's staff works Mondays through Fridays."

And there are emergency situations such as dumping raw sewage that would obviate permission, commissioners discussed.

"You would only go there if you have cause to be there," commissioner Kathy Grell ventured rhetorically.

"The key to it is the department can use common sense," Dearstyne suggested. "You're not going out there willy nilly to inspect."

"It's a touchy situation," commissioner Dick Devine said.

In part, the variance revisions were caused by a new state law Gov. Mark Dayton signed last month outlining the criteria for defining what constitutes a "practical difficulty."

The second addition would be a sunset clause on variance requests.

Buitenwerf had requested a year, but commissioner Lyle Robinson said that was unreasonably short.

"You have to have the variance to get the loam from the bank" and then find a contractor to do the work, Robinson said.

"A year is not mechanically logical."

Buitenwerf said variances that are not acted upon for decades cause housekeeping problems for his office and can involve ordinance changes.

"I'm not hung up on one year or two years," he told the board. "We just need a reasonable end point."

Robinson suggested five years. The board agreed it would achieve the purpose without being burdensome.

The public hearing begins at 12:30 p.m.

Sarah Smith

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

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