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Defendants in Hinds Lake case challenge court decision

Hubbard County, City Sanitary Service, Dale Anderson and Nick Davis — defendants in a lawsuit by a Hinds Lake resident to stop the garbage-hauling business from operating on the lakeshore — have asked the Ninth Judicial District Court judge to amend his "findings of fact, conclusion of law, order and judgement."

Their motion was filed Feb. 8 and a hearing held March 26 at the Hubbard County Courthouse.

County 'fails to perform duty'

The case originally went to trial in September. In a decision filed on Dec. 30, Judge Paul Rasmussen concluded that Hubbard County "negligently and incorrectly" took the position that the business predated the county's own shoreland management ordinance (SMO) and "failed to perform its duty" of enforcing the rules.

Rasmussen issued a writ of mandamus, ordering Hubbard County to enforce the SMO and requiring defendants "to complete relocation of the business" by Sept. 1, 2018. Rasmussen awarded lake resident John Knoblauch $20,000 in nuisance damages, which must be paid by Anderson and City Sanitary Service.

Hinds Lake is a "recreational development lake" pursuant to the Hubbard County Shoreland Management Ordinance, enacted in 1971.

Knoblauch owns property adjacent to Dale Anderson on the lake. Anderson owns two lakefront lots with a home and an outlot. Both of Anderson's properties are located within the shoreland management district.

During the trial, Anderson testified that he started using the lot for his garbage-hauling business in 1976, operating under the name "City Sanitary Service."

Anderson's grandson, Nick Davis, purchased City Sanitary Service in 2012. Davis is currently the sole owner.

Under the county's SMO, a waste-hauling business is not allowed.

The county also has a solid waste ordinance that defines and regulates junkyards. It, too, prohibits operation within the shoreland impact zone.

John Knoblauch's father and neighbors began complaining about the garbage business in 1978.

Tuesday's hearing

On Tuesday, Scott Anderson, a Minneapolis attorney representing the county, disputed Rasmussen's conclusion that county officials "conducted no investigation whatsoever regarding the most serious complaint of all — that the garbage business shouldn't even be there." Anderson said the county conducted an investigation "by reviewing its files and consulting with long-time county employees."

"What facts are there in the record that explain or establish an investigation?" asked Rasmussen.

When the first complaint was made in 1978, Vern Massie was Hubbard County's Planning/Zoning Administrator and Solid Waste Officer. In a letter, dated May 1978, Massie took the position that Anderson's garbage business was "grandfathered in as a preexisting, nonconforming use."

"Massie relied on his own knowledge and understanding at the time," said Anderson.

In a memorandum to the court, Anderson further explained that current Environmental Services Officer Eric Buitenwerf relied on the determination that City Sanitary Service was operating legally "from a former zoning administrator and long-serving staff."

"Is that an investigation?" asked Rasmussen. "What did the county do? What was gathered? That is the crux."

Rasmussen pointed out that another place the county could've looked was the county recorder's office.

"I look at what action could've been done then and I don't have record of that. All I have is he (Massie) relied on his recollection," he said. "So the burden was shifted to the private individual to do the investigating."

Anderson argued that the court's statement that "the county's determination that there is no business activity on Outlot 2 is arbitrary and capricious as to constitute a clear abuse of discretion" should be deleted because "they are not the legal standard in a mandamus claim, which is the only legal claim plead and litigated."

Anderson asked the court to delete the statement that "a single phone call to (Dale) Anderson would likely have revealed the correct start date." Anderson called the statement "speculative" and "inconsistent," given that the court found Dale Anderson "not to be a credible witness."

Rasmussen indicated it was not "a huge leap" that Dale Anderson would tell the start date of his business, if he had been asked by the county.

Finally, Anderson said "the factual findings do not support the conclusion that plaintiff is presently suffering harm, or that plaintiff has no adequate remedy at law." He also said the court decision was ambiguous as to what should be relocated.

"As to Davis and City Sanitary Service, the county has no idea what to require in order to have him comply with the order," he wrote in the memorandum. Since the ruling is unclear, it could lead to further disagreement, "given the acrimony involved here," Anderson said, noting there have been threats of ongoing litigation against individuals.

The county does not believe any business-related items remain on the property, he said.

Alter damages to $0

Anna Finstrom and Alex Mastellar of St. Cloud are the attorneys for Dale Anderson, Nick Davis and City Sanitary Service. Their motion for an amendment primarily challenges the court's $20,000 award in damages.

"This award does not have any reasonable basis in the record and is fundamentally unfair in light of the facts," states their memorandum to the court.

At Tuesday's hearing, Finstrom said the nuisance standard was "glossed over" and there was "no nuisance." Damages must be a reasonable amount, she said, adding that "Loss of enjoyment of property is difficult to measure."

They asked that the award be reduced to $0.

Their memorandum states that the only evidence provided during the trial was Knoblauch's "baseless assertion that the market value of his property suffered a 20 percent drop as a result of defendant's business operations — an assertion the court properly disregarded."

The memo also says "the proper measure for the degree of discomfort in a nuisance action must be according to the standards of ordinary people in relation to the area where they reside." "Ordinary people" of rural Hubbard County are "those who reside there throughout the year rather than those who visit seasonally or occasionally," the memo continues. The defendants "have been unfairly held to an improper standard based upon the sensibilities of vacationers."

Finstrom said Hubbard County repeatedly told the business owners that their operation was acceptable and in compliance with the law.

'Intentional or reckless' conduct

Steve Peloquin of Park Rapids represents Knoblauch. In his memorandum, Peloquin countered that "not only did Hubbard County not do any investigation at all concerning when the solid waste operation commenced on the shores of Hinds Lake, but it ignored Massie's written reply to an attorney written in 1978 on behalf of the residents pointing out specifically its illegal operation."

Peloquin noted that "residents up and down the shoreline" testified about the noxious smell from the garbage business, resulting in devalued properties. In the memorandum, he argued there is no evidence the nuisance only caused discomfort to the "overly sensitized eyes, ears and noses of 'vacationers.'"

"The court was within its discretion to come up with the number it did," he said Tuesday.

According to the memorandum, Knoblauch's testimony at the trial that the devaluation of his property was 20 percent, or $40,000, was based on his experience as a licensed realtor and home builder. During cross-examination, Knoblauch testified he spoke with an appraiser who provided a written opinion supporting the 20 percent devaluation.

Peloquin suggested increasing the damage award to $40,000 and "a finding be made that the conduct of Hubbard County was intentional or reckless."

In the memo, Peloquin wrote, "Hubbard County's environmental services department should have the expertise to determine whether a solid waste business is operating on a property within its shoreland management districts, and if one is, how it should enforce its ordinance so as to terminate and remediate an operation which is clearly illegal. Instead, Hubbard County wants to place the burden on the plaintiff or the court to determine, for example, what items might be required to be removed from Outlot 2."

Peloquin continued, "It does not take specialized knowledge to determine whether dumpsters, packer bodies, garbage trucks, waste oil and the like are remnants of the solid waste hauling operation that is located on the premises."

He wrote that buried debris and oil-polluted soil also be removed.

On Tuesday, Peloquin asked the court to keep its original findings and conclusions as is or adopt the proposals he set forth.

Rasmussen said he would review all issues raised, pour over the record and reach a decision.

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