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Appeals Court kicks garage case back to HC; it could be decided by similar case

This garage has been the subject of litigation for the past two years, in part because the flag in the picture signifies a high water mark the building is allegedly too close to. (Sarah Smith / Enterprise)

The case of a $400,000 garage and variance appeal on Deer and Shallow lakes in Hubbard County has been reversed and remanded by the Minnesota Court of Appeals for further action.

David and Karen Hagert got a building permit in 2010 for a garage. When Hubbard County learned they had added living quarters above that garage, it sent the couple a notice of violation. The couple then applied for an after-the-fact variance.

In August 2011, the Board of Adjustment denied the variance, contending the house was too close to the shoreline and that a low spot on the yard should be considered a wetland or the shore impact zone. Hagerts appealed and sent notice to the Hubbard County Attorney Sept. 9. (The wet spot no longer exists because of drought conditions.)

The county appealed, contending that Hagerts had served the wrong county official and that the litigation entailed a new lawsuit. The appeal was defective, the county's outside counsel argued.

Judge Paul Rasmussen agreed and denied Hagerts' appeal on procedural grounds.

But a similar case was winding its way through the court system at the same time via Houston County.

There, a variance was also appealed to the county attorney. Houston County said the appealing party had served the wrong county official, and that appeals should be served on the auditor or board chair.

That led to the larger question of whether the appeal was an ongoing action or the commencement of a new action.

In In Re Application of Skyline Materials, Ltd for Zoning Variance case, the appeals court said, "the rules governing the commencement of a civil action are not applicable to an appeal from a decision rendered by a county board of adjustment because such an appeal seeks 'review of a decision in an ongoing case.'"

The appeals court there stated a notice of appeal does not commence a new legal action, so the notice of appeal was properly served upon the county attorney.

The Minnesota Supreme Court will now hear the Skyline case, so the Hagert case may be piggy-backed onto it or could be ruled by a decision rendered in Skyline, said Hagerts' attorney, Joel Fremstad.

That will delay the local case, in which Hubbard County is seeking to get the Hagert garage removed.

Monday, the appeals court issued what's called an "order opinion" in the Hagert case, essentially saying the Skyline case outcome would govern the Hagert case.

Because the same law firm is involved in both cases, "I assume they will appeal this case to the Supreme Court in the coming days and weeks," Fremstad suggested.

"In some ways we feel this is getting unnecessarily drug out," he said.

He said he doubts the Supreme Court will hear the cases jointly. He said the more likely outcome is that the Skyline case would be decided first "and we'd be bound by whatever they did," he said.

Fremstad says he looks forward to the day when the county, its attorneys, the Hagerts and himself can sit down to arrive at a solution that will be agreeable to all the parties, a solution that does not entail tearing down a $400,000 structure and taking it off 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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