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Court of Appeals sends variance case back to HC

This resort-turned PUD has been in litigation since 2009. (Sarah Smith / Enterprise)

The Minnesota Court of Appeals has remanded part of a controversial variance case back to Hubbard County's Board of Adjustment for re-consideration.

The unpublished decision came down Monday morning in the case of Mutsch vs. The County of Hubbard et al.

The appeals court upheld one of four issues appealed, overturned one, set aside one and remanded a fourth, the thorniest issue.

The case involves the conversion of the former Eagle's Landing Resort on 5th Crow Wing to Rice Bay (planned unit) Development, a community of permanent residents.

Owners Dan and Donna Rehkamp had requested the same number of dock slips they'd had as a resort in that conversion that began in 2009 with a request for a Conditional Use Permit.

The Hubbard County Shoreland Management Ordinance allowed only three plus a common landing for the PUD. Rehkamps said they doubted they could market the lots and cabins with only day access to the lake.

The issue of dock slips will return to the BOA for that board to articulate more sufficiently why it granted three times the number of dock slips allowed under the SMO's section 1104.

One tradeoff in converting lakeshore property to PUDs is that in exchange for more population density on land, less lake disruption is generally allowed.

The ruling sending the dock issue back is somewhat of a technicality because in 2009, when the issue was debated at the local level, the BOA granted the dock slips using a 2008 Supreme Court case's factors, not necessarily the local ordinance factors. At the time, the BOA was instructed to comport with the 2008 ruling,

Those 2008 factors "do not completely mirror the factors listed in section 1104," the Court of Appeals ruled.

So the BOA must once again review and justify the factors of the county ordinance and base its decision upon those.

After the BOA granted the 11 dock slips, Ed Mutsch, a 5th Crow Wing resident, sued, claiming the decision had the tendency to de-value his property by overcrowding the lake with people and boat traffic.

He was joined by the Middle Crow Wing Lake Association and the Hubbard County Coalition of Lake Associations. Mutsch is a member of both groups.

The Court of Appeals agreed that Mutsch and the lake groups were entitled to sue even though none of the members had attended meetings before the BOA or county board when the resort sought a Conditional Use Permit to convert to a PUD. Anyone who feels aggrieved by a governmental decision can file an objection, the Court ruled.

Mutsch and the lakeshore groups "did not waive their potential statutory standing by failing to participate in the County's hearings," the Court held.

On the second issue, the defendants wanted some clarification as to whether the variance sought was an area variance or a use variance. Here the court ruled those issues were not properly raised before the various county boards, so the Court of Appeals refused to consider it.

"We will not consider issues that were not properly raised before the local government body," the Court ruled.

The type of variance might have given some clarification as to the standards used to grant or deny it, the defendants had argued.

The last factor concerned whether the BOA had properly analyzed the Supreme Court decision's six factors to grant or deny a variance. District Judge Paul Rasmussen had ruled the board didn't. The Court of Appeals disagreed and reversed that part of the ruling. The higher court noted the BOA's findings using those standards "is supported by substantial evidence."

Hubbard County Environmental Services Officer Eric Buitenwerf declined to comment on the decision. Dan Kittilson, president of the Hubbard County COLA, said that group would review the decision with its attorney to determine how to proceed. Mutsch was not available for comment.

Unpublished opinions, according to the Court, "are issued in cases that are less complicated, that involve legal issues that have already been decided in published opinions, or that will affect only the parties to that particular case. These opinions are usually shorter, do not contain extensive discussion of the facts, and are not generally relied on by other courts to the same degree as published opinions."

Sarah Smith

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

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