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BOA meeting gets heated over after-the-fact variance request

Jerry Cole's tenure as Board of Adjustment chair ended with the same fireworks as it began a year ago, clashing with lake activists over variances.

Monday Cole threatened to call the police if COLA representative Chuck Diessner didn't stop talking and sit down.

The heated exchange took place during one of three after-the-fact violations before the variance board Monday, in which both board members and Coalition of Lake Associations activists voiced dismay at the number of lake homeowners building without the necessary permits or variance.

"There should be some form of punitive damage for going ahead without permission," BOA member Charles Knight suggested.

The exchange between Cole and Diessner continued after the meeting, in which Diessner objected to "being treated as a criminal" for voicing his opinion.

That was just after Cole announced he would not be returning to the BOA. Ken Grob, past president of COLA, is replacing him. BOA members serve by appointment of the county board member in their district.

County board member Kathy Grell, who was elected in the fall of 2010, chose to replace Cole. Grob's appointment is subject to county board approval. That body meets today.

Whether Grob's presence on the BOA makes the meetings more harmonious remains to be seen. Current COLA officers are at loggerheads with the BOA, and there's usually some type of exchange in disagreement at each monthly meeting.

COLA, which is suing the county and BOA over a variance issue that is currently headed to the Minnesota Court of Appeals, has differed with the BOA on how new variance cases should be interpreted in light of recent Minnesota Supreme Court rulings.

In the case of Kay and John Baker, the issue was a higher pitched roof than allowed under the Shoreland Management Ordinances. The couple's roof on their Deer Lake cabin had been leaking, so they proceeded "in reaction mode," Kay Baker told the board.

In doing so, the roof pitch changed and the building encroached three feet into the shore impact zone.

Bakers, who came late to the meeting, were unaware of the strenuous objections COLA members placed on their project.

Ed Mutsch, the lead plaintiff in the COLA lawsuit, said he was having difficulties understanding why the BOA was entertaining approving the variance request at all.

"There are a number of bases for denial," he implored the board. Then quoting a previous comment Knight made at a meeting, he reminded the board, "the shore impact zone must be considered sacrosanct."

In the Baker case the home addition exceeded the 50 percent allowable addition to a nonconforming structure in the shore impact zone, Mutsch maintained.

"No living quarters can be added," Mutsch said, under the shoreland management ordinance.

"Only a small percent of (homeowners seeking after-the-fact permits) are truly unaware of the need for permits," a frustrated Mutsch said. "That is not the case here."

He said he was tired of homeowners "who spit in the county's eye" and build before seeking permission, "They do what they damned well please," he reiterated, asking for forgiveness rather than permission.

"The board should send a very clear signal" that such offenders should be punished, Mutsch said.

The Bakers said there had always been living space in upstairs of the home and they didn't realize they needed a variance until they tried to get the building permit, the Savage couple told the BOA.

Cole suggested ameliorating the impervious surface effect by putting in a rain garden.

The couple was amenable to that, and suggested they would even remove a shed as a compromise.

The board approved the variance 4-0. Member Lou Schwindt was absent.

n In the second case a Lower Bottle Lake couple improved their screened house with living quarters, knowing they could not. They reasoned because they had removed an improperly placed bunkhouse and needed the sleeping quarters, they could move that same bedroom space above the screened-in building as long as they didn't exceed the size of the bunkhouse.

"We took it upon ourselves to put the sleeping quarters" above the screened porch, Lynne Erickson told the BOA. "It was an error in judgment."

Board members allowed the oversight, indicating "they need a place for their grandkids to sleep."

The couple upgraded the septic system at the time they added on. The guest cottage exceeds the 15-foot maximum height and the lot is shy of the 40,000 square feet residential lot suitable area.

Diessner suggested the "punitive damage" penalty Knight had earlier voiced.

He reminded the board that in an August case, David and Karen Hagert built living quarters above their Deer Lake garage and the board ordered them to remove the $400,000 structure or bring it into compliance. The Hagerts have taken their case to court.

"Where are we going to draw the line?" Diessner angrily asked the board. "This is Hagert," he said, comparing the situations. "It wasn't to be built in this manner. When do we stop this?"

Diessner complained that homeowners "come before you on bended knee and say mea culpa... You damned well better get your permits."

Diessner said the fact that Morris and Lynne Erickson are "nice people with beautiful buildings is irrelevant. A building for their grandchildren is not the test under the law."

This was the point at which Cole told Diessner his five minutes of public speech were over.

"Jerry, don't cut me off," Diessner objected. "We've never been limited before."

Cole said a five-minute limit is in the meeting rules posted on a display table in the boardroom.

"You're done," he told Diessner. "You're wasting your time. I will call the police."

"What?" an incredulous Diessner exploded.

When Cole allowed him to finish, Diessner said, "There is no practical difficulty here. You gentlemen are using the wrong standards. Has this board been trained in using the new law?"

Even Morris Erickson conceded the objections "got some points" but in removing the bunkhouse, "there's less square footage."

"We had sleeping quarters," Lynne Erickson said. "We decreased our living space. All we did was improve it. We apologize but to compare us with these other people (the Hagerts), I take issue with. Each situation is unique."

The board approved the request 4-0.

n In the third request, a visibly crankier board told Brad Bond the Pine Hollow Resort on Hay Creek must tear down a concrete fire pit built without a permit that is 10 feet from the water's edge.

Bond explained the resort had simply relocated and rebuilt an old fire pit for safety reasons, so guests wouldn't burn down the trees. A contractor informed them a slab on grade piece of concrete didn't need a permit.

But just as the board seemed to be agreeing to the newly placed pit with a retaining wall to prevent erosion, member Earl Benson said, "I have a problem with it," questioning what the board would do with the expected deluge of new requests to build along the shoreline.

Benson said the concrete could be torn out, but campers could still utilize the river shore using lawn chairs and picnic tables.

The board denied the variance request 3-1 with Arnold Gustafson being the dissenting vote.

In speaking with Environmental Services Officer Eric Buitenwerf, the retaining wall may stay if it's in compliance with earth removal provisions of the ordinance.

The Hagert issue may come back to the board next month. The Grand Forks couple recently purchased new land adjacent to their lot, which was deemed too small to accommodate a garage with guest quarters above it.

Afterwards, Cole explained to Diessner that as chairman, he felt an obligation to maintain the decorum of the meeting and not let the discussion get out of control.

Diessner disagreed.

Sarah Smith

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

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