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Deadline to tear down garage is today

David and Karen Hagert's disputed garage addition sits at left in this photo. (Sarah Smith / Enterprise)

As the clock ticks down on a disputed variance for a $400,000 garage addition in Hubbard County, both sides remain entrenched in a legal battle over who should blink first.

David and Karen Hagert of Emerado, N.D., have appealed the denial of a variance last August to the Hubbard County District Court. That case is pending before Judge Paul Rasmussen, but the county has ordered the structure to be moved or torn down by today, Feb. 15.

In August the Hubbard County Board of Adjustment denied two variance requests by the Hagerts to sanction an already-built guest home above their garage that the county said exceeded the size limit and height requirement, was too close to the water's edge and wouldn't have had a suitable septic system under the septic ordinance.

That is what the couple is appealing in court. The county had granted the couple approval to build a garage with storage at the 150-foot setback. The county contends the garage sits at 70 feet from the water's edge.

Hagerts maintain the county measured the 70 feet from a depression in the lawn, which the Shoreland Management Ordinances do not address.

Meanwhile, Hagerts' request for the board to consider a new variance has been denied on numerous grounds.

Changing the rules

While the issue of their guest quarters on the lot that borders Shallow and Deer lakes headed to court, the Hubbard County Board of Commissioners amended a provision of the Shoreland Management Ordinance in November to prohibit a landowner from asking for a re-hearing of a variance request or administrative decision appeal for one year from the date of the decision.

An applicant or landowner may request a re-hearing of a denied variance "when substantial new information is obtained that is relevant to the issue," said a Jan. 12 letter to the Hagerts' attorney from Environmental Services Officer Eric Buitenwerf.

The new variance

Hagerts applied for a new variance in December on numerous grounds, the main one being they had purchased an adjacent lot to accommodate the garage addition and density.

Buitenwerf informed their attorney the .6-acre parcel "consists of land located below the ordinary high water mark of Deer and Shallow lakes and thus cannot be counted toward the lot area per the 'lot area' definition" of the ordinance and "has no impact on the location of the (ordinary high water mark)."

He also informed the couple their new variance application was incomplete and needed to be substantially updated before the board would consider it. The county returned the variance fee and no Board of Adjustment hearing was held in January.

The court case

The court case is based on mostly technical grounds. Hubbard County is seeking a dismissal because it alleges the Hagerts did not serve the proper county officials in the legal challenge, served the notice of appeal too late, and that the district court lacks jurisdiction to hear the appeal.

Hagerts dispute all of these issues, maintaining they served Hubbard County Attorney Don Dearstyne, who was representing the county at the time, that the only place to appeal a decision of the Board of Adjustment is the district court, and that the appeal was filed within the 30-day deadline.

The request for a dismissal is pending before Rasmussen.

Now what?

Meanwhile, no one is sure what the next step is.

Buitenwerf said he can't discuss the case.

Fargo Attorney Joel Fremstad, who represents the Hagerts, admitted he was frustrated and a bit perplexed by the repeated obstacles he believes the county is throwing at the couple.

"You have the issues of the setback, a fill issue, a size of the structure issue and then you have a plumbing issue," Fremstad acknowledged.

To date, no compromise on any of them has been reached. Because of the litigation, neither side can sit down with the ordinances before them to see how the situation can be rectified.

Fremstad now wonders if he will get a letter from the county ordering Hagerts to tear down the structure, or whether a county wrecking ball will remove the two-bedroom guest residence from the tax rolls.

Sarah Smith

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

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