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Garage variance litigation continues as owners seek new variance

The Hagert garage is too close to the orange flag in the yard denoting a low spot, Hubbard County says. (Sarah Smith / Enterprise)

By Sarah Smith

A Fargo attorney is disappointed that his clients have been branded Hubbard County’s Public Enemies just as he was trying to de-escalate a three-year legal battle over a variance.

At a county board meeting Tuesday, Environmental Services Officer Eric Buitenwerf, through outside counsel Scott Anderson, asked for a hefty increase in legal fees above Anderson’s $5,000 retainer for what Anderson claims will be a “complicated and messy” fight over David and Karen Hagert’s garage on Shallow and Deer Lakes. Anderson got the OK and the money.

He is counsel for the county’s liability insurance carrier.

County officials have called it the most egregious shoreline violation in the county’s history.

Hagerts and their attorney, Joel Fremstad of Fargo, call it an oversight that the county has blown way out of proportion.

The Emerado, N.D. farm couple received a permit to build a garage onto their summer dream home nestled between Deer and Shallow Lakes.

Preoccupied by their daughter’s upcoming 2012 wedding and in a crunch for extra housing, David Hagert said he completely forgot about a small sign on the garage indicating the building was not for human occupancy. He directed his builder to proceed.

In 2011 the builder added a luxurious space above the garage. Fremstad maintains the county flew over the garage to take aerial photos of the building, but never informed the Hagerts there might be problems.

In 2011, the couple was hauled before Hubbard County’s Board of Adjustment, notified of numerous after-the-fact violations of the shoreland ordinance.

By this time the garage was completed.

The county said the couple’s lot was not big enough to hold the added density of a garage apartment. So the couple bought an adjacent parcel of land to remedy that.

The couple was told the garage was too high, too close to the water and could not contain a bathroom.

Initially David Hagert estimated he’d spent $400,000 on the structure and that figure stuck. His recent estimate, for legal purposes, is $280,000.

“Hagerts went ahead and built the most luxurious garage/guest house I have ever seen up there,” Anderson wrote in a letter to the county in which the pitch for additional legal funds was contained.

The case went to the Minnesota Supreme Court on technical grounds after the county denied the variance and ordered the couple to tear down the garage.

The Supremes kicked the can down the road, sending the case back to the Court of Appeals for further review.

The actual merits of the variance denial have never been debated.

The latest saga

While the case is pending before the Appeals Court, Hagerts in September applied for another variance, asking the county to rule on whether the garage could remain where it is.

While Hagerts’ first case was pending, the Board of Adjustment passed new rules saying that homeowners could appear only once a year before it.

Hagerts waited out the year and filed the paperwork for the new variance.

The county quibbled over the paperwork, according to Fremstad, and by the time a voluminous stack of materials had been produced in support of the second variance, including copies of what Hubbard County’s Environmental Services Office already had in the first file, the September BOA meeting had come and gone.

So had October and November’s meetings, even though the county informed Fremstad Oct. 8 it was reviewing the new application and would let the Hagerts know when the lot viewing would be scheduled.

To simplify the process, Fremstad had only asked the BOA to rule on the garage location, not the bathroom or sleeping quarters. Those were matters for another day.

Fremstad meanwhile got ready for the December BOA meeting, since he’d missed November’s. He’d assembled 2,000 pages of materials, 30 exhibits and three years of prior board decisions.

“Please let me know if anything’s missing,” he wrote in late November.

On Dec. 4 he was told the materials were being reviewed.

“We detailed the extraordinary cost to this building and the terrible financial tragedy” it would be to tear down the structure and take it off the tax rolls, Fremstad said.

The Hagerts were not scheduled for the December BOA meeting.

However, Anderson’s letter to the board indicated the second variance application “is the first one we have allowed to be judged a completed application.”

There was no explanation of why the case didn’t make the December BOA agenda and the county has refused to discuss the matter due to the pending litigation.

The letter and fuel on the fire

Anderson labels Fremstad “difficult to deal with and difficult to pin down as to what he is claiming.”

The Hagerts don’t fare much better in the letter.

Anderson said their “conscious and callous disregard for the regulations of the county” will no doubt spark a second lawsuit.

“It is my opinion that the County should avail itself of outside legal assistance in processing this request,” Anderson stated. “It is necessary to rebut the information being submitted by Mr. Fremstad, help plan for the presentation of evidence at a hearing on the request, and help prepare Findings (of Fact) that will be sufficient to withstand the numerous legal attacks that Mr. Fremstad will mount. That assistance is outside the scope of the retainer.”

Anderson went on to characterize the initial violation as significant.

“We have landowners who appear to have the time, inclination and money to fight until they get what they want,” Anderson told the county. “We have everything being orchestrated by an attorney for them at this juncture to try to set them up to have a winning hand with the Courts.”

Fremstad said at a time he was offering an olive branch, it was difficult to read this language.

Hagerts, he said, are heartsick that their actions have been interpreted so sinisterly. They love Hubbard County and hope to be good neighbors.

Sarah Smith

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

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