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Board of Adjustment ends dock variance matter without comment

Outside counsel Scott Anderson, left, and Hubbard County Attorney Don Dearstyne advised the BOA not to reopen a controversial variance hearing. (Sarah Smith / Enterprise)

Hubbard County's Board of Adjustment, which appeared Monday to have been well coached by legal counsel sitting three feet away, refused to reopen a hearing into a controversial 2010 dock variance and quickly ended the matter without allowing public comment.

The dramatic and packed hearing thus ended the matter of Mutsch versus Hubbard County, a two-year plus bitter legal saga over how variances should be handled.

"They treated the public with contempt," said lead plaintiff Ed Mutsch after the meeting. Mutsch and others sued the county on behalf of the Fifth Crow Wing Lake Association and COLA over the 2010 decision, contenting the BOA had abused its discretion by allowing more dock slips at Eagle's Landing Resort than the shoreland ordinance prescribed. The resort was in the process of a conversion to a Planned Unit Development called Rice Bay.

Furious members of the Hubbard County Coalition of Lake Associations confronted the attorneys in the hallway immediately after the refusal to hear the matter or the public.

The gist of the hallway conversation from inside the boardroom was not clear but the angry tone was.

The Minnesota Court of Appeals remanded the 2010 variance for possible further consideration to the county in a decision April 30.

The BOA refused. Members considered, then quickly voted not to reopen a hearing into the dock slips on Fifth Crow Wing Lake. The Appeals Court's directions had only specified the board was to determine if the 2010 record was adequate to base their decision upon.

The board had granted 11 dock slips in 2010. The suit maintained only three were allowed by ordinance.

BOA members had received terse instructions from the Environmental Services Office and two attorneys in their monthly packets advising them to review the 2010 minutes and the Court of Appeals decision thoroughly.

Their instructions Monday were not to reopen the record.

They followed the script to the letter.

"There is no reason to open the record and a good number of reasons not to reopen it, such as minimizing the potential for new legal arguments to be raised/made in any possible new appeal(s), and insuring that the inquiry is confined to the issues considered in earlier proceedings," stated an ESO office memo to the board.

"I was extremely disappointed," Mutsch said. "My understanding of the appellate court's conclusion was that the Hubbard County Board of Adjustment did not do a thorough job of assessing this particular variance request. Specifically with respect with not evaluating it vis-à-vis the county shoreland management ordinance.

"They did evaluate it vis-à-vis the state rules, but not the county's so they remanded it back and in their opinion it would be at the BOA's discretion whether they wanted to make their re-worked decision based on the existing record or whether they wanted to open the record," he said.

Mutsch said a number of COLA members attended the meeting in the belief they would "at the very least entertain some public comment as to whether others felt it should be open or closed."

COLA members wanted the hearing reopened and left disappointed shaking their heads.

COLA member Chuck Diessner early on voiced unhappiness with the proceedings when new BOA member Ken Grob, also a COLA member, removed himself from discussion, citing a conflict of interest.

The board appointed alternate Tim Johnson. Diessner's objection was that the board could not appoint a reserve member to hear one item on the agenda.

The county's outside counsel, Scott Anderson, after conferring with Hubbard County Attorney Don Dearstyne, agreed Johnson would only be there to break a tie vote if needed, not participate in the discussion.

But the drama didn't stop there. Dan Rehkamp, owner of Eagle's Nest, let out an exaggerated sigh, placed his hands on his head and made faces of annoyance to Diessner and the board.

Without Grob, the board quickly voted 4-0 not to reopen the 2010 hearing. Board chair Lou Schwindt tersely told Diessner no public comment would be allowed, then proceeded to the next agenda item.

"We were most disappointed at the perfunctory and obviously well-greased manner in which the whole situation was handled," Mutsch said.

"What are they afraid of?" he questioned. "They were authorized to make the final decision in any event. They could have at least gone through the motions of pretending to care about what anybody else said."

In other action, the board:

n Approved 5-0 a settlement agreement with Steve and Mary Kusske to a new property line boundary on their Lake Plantagenet lot.

The couple had previously appeared before the board in 2011 and agreed to subdivide two riparian lots that would each meet duplex requirements. Each could then contain a home and guest cabin.

Monday the board approved allowing two structures' roof height to exceed the maximum 15-foot height.

A 2002 variance had allowed the building of a new residence on the property and a guest cabin that exceeded the 700 square feet allowable.

n Refused 5-0 to allow Gerald and LaDonna Erickson to let a mobile home remain on a small lot as a guest cabin. The trailer encroached on the shore impact zone.

"We bought it in 2003," Gerald Erickson told the board. "It would have been nice if the realtor had told us what we could or couldn't add to the property. I'm ignorant of the variance rules."

The board instructed Erickson that the trailer could intermittently be placed on the lot for guest accommodations as long as it was out of the shore impact zone.

n Refused 5-0 a request by Deane and Colleen Stinar to remove a portion of an ice shelf on the beach at their Grace lake cabin. The Stinars had appeared before the board in 2011 with a similar request, which also was denied.

Colleen Stinar told the board the reduced beach area posed a safety concern for children swimming when neighbors' boats and jet skis were using the same beach in close proximity to the kids.

Grob explained that shaving down the ice ridge would contribute to erosion into the lake.

"You already have very reasonable use of the property," he told the disappointed couple,

Sarah Smith

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

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