BOA to the public: Zip it; Fifth Crow Wing variance passes second time
Sixty people stood and raised their hands to object to the way Hubbard County's Board of Adjustment conducted its July meeting on a dock variance Monday.
Once again, no public comments were allowed at the "public meeting" portion of the agenda. The BOA, as it had 2½ years earlier, awarded 11 boat slips to Eagles Landing Resort on Fifth Crow Wing Lake. In March 2010, the board was sued for making a similar decision when lake activists contended the Shoreland Management Ordinance only provided for three slips.
Monday the boardroom was standing room only as the BOA reconsidered part of the 2010 decision after the Minnesota Court of Appeals remanded the case back to Hubbard County.
Under what appeared to be strict orders from the county's insurance attorney, sitting at the board table, and obeying to the letter a tersely worded staff recommendation, the five-member board dispatched with the variance request in minutes, leaving audience members angry and stunned.
The board voted 4-0 to affirm the minutes of the March 2010 meeting on the findings of fact and accept the Environmental Services Offices staff report recommending approval of the request. Member Ken Grob, also a member of the Hubbard County Coalition of Lake Associations, removed himself from the discussion, citing a conflict of interest.
The appeals court essentially determined the matter on a technicality. A 2008 Otter Tail County variance appeal decided by the Minnesota Supreme Court laid out a number of factors to consider in determining if a "practical difficulty" exists to warrant granting a variance.
The Eagles Landing case was correctly analyzed using these standards, the Appeals Court found in the Hubbard County case.
But the board needed to analyze the variance request under the Hubbard County Shoreland Management Ordinance, the Appeals Court ruled on April 30. Some of those standards mirror the Otter Tail County factors. Some don't.
One factor looks at hardship factors, not practical difficulties.
"The hardship was partly created by the State of Minnesota when it created the dock/lake access regulations found (in the Shoreland Management Ordinance) that were mandated for the County to administer," the staff report indicates. Those standards are only applied to residential and commercial planned unit developments, which Eagles Landing is.
Because the resort has a significant wetland area near its shore, the resort-turned PUD was limited in the amount of first tier units it could build, which in turn limited the number of boat slips it could have after the conversion.
"The protection and preservation of the wetland area penalizes the landowners in terms of the number of tier 1 dwelling units accompanying permanent watercraft skips they are allowed," the staff memo states.
Because individual homeowners are allowed an unlimited number of docks and watercraft slips, Environmental Services Officer Eric Buitenwerf reasoned it would be more disruptive to the lake to launch and re-launch boats daily for the residents of tiers 2 and above at Eagles Landing than it would be to give them permanent slips.
"Daily watercraft launching damages the shoreline, lake bottom, and near-shore emergent and floating vegetation more than permanent boat slips," the staff memo states. Permanent watercraft would only be launched in the spring and fall.
In awarding the eight extra slips, PUD owners would be treated similarly to the other riparian owners on the lake, the memo notes.
"There is no evidence anywhere in the record that allowing 11 boat slips will be damaging to the property values in the vicinity," Buitenwerf's staff memo states.
But that is where COLA representatives have a problem.
Theoretically, if the PUD is only using one landing site, a dock would stretch 100 feet into the water to safely accommodate 11 boats, COLA member Chuck Diessner suggested. And a 100-foot dock would be a major disruption to the lake, the plaintiffs in the lawsuit contended.
The audience repeatedly shouted they could not hear the BOA at the conference table, and board members only made token gestures to move the microphones closer to themselves.
When Diessner suggested members remove the microphones from their stands and hold them near their mouths, Buitenwerf implored the angry crowd to "please bear with us" and move closer if they couldn't hear. The meeting was almost inaudible from the Enterprise desk five feet away from the board table.
The issue was dispatched in five minutes. Board chair Lou Schwindt called for a quick recess to clear the room.
When the meeting resumed, Diessner stood up from the front row, turned to the crowd and admitted, "I know I'm out of line but everyone who disagrees with how this meeting was run, please stand up and raise your hands."
The entire room responded.
In other action, the board:
n Approved 5-0 an after-the-fact variance request by Wayne Luksik and Dawn Canada to make adjustments to a Lake Belle Taine lot that would allow a shed and a paved driveway to remain closer to the ordinary high water (OHW) mark than the required 100 feet. The request also sought to adjust the property line between two lots.
"The nonconforming change is very minor," Grob said. "It's a minor incursion into the setback and will have absolutely zero impact on the lake."
n Approved 5-0 an after-the-fact variance request by Charles and Gail Sheridan to leave a lakeside deck expansion into the ordinary high water mark.
"The department does not object to the deck expansion," the staff memo suggests. "It does not encroach closer to the lake than the existing deck and is a small addition relative to the rest of the deck."
Grob commended Charles Sheridan for having "an excellent buffer area" that mitigated any potential harm to the lake.
n Approved 5-0 a request by Greg and Jeanne Mehlhop to replace their modular home on Garfield Lake with a permanent one including basement.
In 1980, a variance was granted setting the OHW mark at 90 feet. That essentially squeezed any home to meet both the OHW mark of 100 feet and a 50-foot right-of-way on other portions of the property.
Schwindt disagreed with the staff report, noting he felt this "deprived the owner of reasonable use of his property.
"He's putting in the basement for safety reasons," Schwindt said as Grob pointed out the severity of the summer storms the region has experienced this summer.
n Approved 5-0, with conditions, an after-the-fact request by Christopher Roberts to leave two platforms on his Gilmore Lake property that didn't comply with the 100-foot OHW setback. One is a fire pit near the lakeshore surrounded by flagstone.
Board members reasoned removing the fire pit would cause too much erosion on the site.
"The ordinance doesn't address the issue of individual fire rings," Buitenwerf said.
Roberts agreed to add a rain barrel and rain gutters to divert water from running into the lake.
The staff report recommending removal of the fire pit was amended and reversed after the site visitation, Buitenwerf said. The erosion possibility was too great if the fire pit was torn out.
The board pointed out that Roberts had made a substantial effort to clear the lot from debris left by the previous owners.
n Approved 5-0 and denied 5-0 an after-the-fact request by David and Barbara Kocer to their Lake Belle Taine property, The board approved a variance in 1992 to build the home and in 2006, "our department erroneously permitted a deck on the structure when a variance...should have been required," the staff memo indicates.
The deck was then built larger that shown on the permit application.
Builder Russ Hensel said he wanted to bring the deck into compliance and screen in a porch underneath it.
"I don't think the porch should be allowed at all," BOS member Earl Benson said. "It's an addition closer to the lake."
Grob said there was "no buffer zone" to protect the lake from erosion, so the board permitted the earlier dock to remain but told Hensel the screened in porch concept was denied.
n Approved 4-1 a request by Wayne and Barbara Jordahl for a garage addition on their Lake Belle Taine home that exceeds the 50 percent square footage allowed by permit.
It is a proposed addition to a nonconforming structure that doesn't meet the 100-foot OHW setback.
Jordahl's builder said an attached garage is needed because one homeowner is ill and needs the accommodation.
Grob voted against the plan, saying there was no medical documentation to support the necessity for the attached garage.
n Approved 5-0 with conditions an after-the-fact request by Tom Fox et al to leave a porch addition on a Shallow Lake nonconforming home that extends into the 100 foot OHW mark.
Fox's partners agreed to mitigate the incursion by placing a buffer zone near the lake. The deck in question was permitted as part of the original construction on the lot.
Diessner asked that the staff report be corrected to reflect that Shallow Lake is a natural environment lake with an OHW setback of 150 feet, not 100 feet.
n Approved 5-0 a request by Melanie and Dan Leger for a proposed guest cottage that exceeds the allowed 700 square feet,
Melanie Leger said the couple built a garage and a loft to live in while constructing the home. Now they want to connect the bedroom there to the finished home with a breezeway. In 2010 when they started construction, it was allowable to attach a covered walkway, Melanie Leger said. Now guidelines mandate a walled in attachment.
Schwindt questioned whether the variance request was "for an addition or a guest house?"
If it's considered part of the house it might only need an administrative appeal to make it comport with the statutes, Buitenwerf suggested.
But the variance specifically requested it be treated as a guesthouse.
Grob was uncomfortable approving an oversized guesthouse because the county is currently embroiled in a lawsuit over a guest cabin on Shallow Lake that the BOA said is oversized.
But in honoring what the ESO staff had told the Legers before, Grob said he felt compelled to stand by the interpretation of the ordinance officials gave Legers in 2010, so the request was approved.
n Approved 5-0 a request by Robert Wroblewski to build up a road to his property on Spider Lake, Wroblewski said he purchased a large parcel from State Bank of Park Rapids that had been foreclosed on.
Neighbors worried he was building up the road with the eventual plan to put a development on the acreage. Wroblewski repeatedly denied he had such plans for the land.
The road would be only 86 feet from the OHW in one spot.
The board approved the request on the condition that the part of the road that encroaches on the OHW mark be left at a 16-foot maximum width.