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BOA refuses second request for nonconforming garage

Karen and David Hagert and attorney Joel Fremstad argued for allowing their nonconforming garage to stay where it had been built. (Sarah Smith / Enterprise)1 / 2
Attorney Scott Anderson has been retained by the county’s insurance carrier. (Sarah Smith / Enterprise)2 / 2

By Sarah Smith

In a hearing carefully orchestrated to give all sides a say in the matter, Hubbard County’s Board of Adjustment, bolstered by Hubbard County COLA and the DNR, nixed a request to leave a controversial garage where it is.

The $300,000 structure and its owners, David and Karen Hagert, have been at loggerheads with the county since 2011, when the BOA first denied an after-the-fact variance for living quarters the couple had built above the garage for a family wedding.

The county claims the oversight was deliberate and was followed by subsequent violations.

Hagerts maintain the building was an oversight caused during a time of stress and they have tried to rectify the violation since.

A packed house listened to the arguments, many old and some new, in the three-year interim.

Hagerts’ attorney, Joel Frenstad, presented a 90-minute opening statement listing the allegations that he claimed “were inappropriate.”

The county has maintained that the garage encroached on the ordinary high water mark and was never authorized for living quarters.

Fremstad countered that the couple built in a spot that was ample distance from a channel that runs on the side of the property and that the structure is not visible from either Deer or Shallow lakes, which the property is situated next on.

Fremstad also argued that the BOA hadn’t officially adopted by-laws so it wasn’t authorized to act. The board actually adopted its by-laws at the end of the meeting Monday night.

Board chair Tom Krueger pounced on the living space issue.

“There’s 1,200 square feet of living space,” he said accusatorily. “That’s illegal. What’s the purpose of that?”

Krueger noted if the garage was an official guest cabin, only 700 square feet of living space was allowed.

Board member Tim Johnson piled on.

“You had a building permit and it stated what exactly was supposed to be going in there,” Johnson said.

Fremstad accused the board of having pre-ordained thoughts of the variance.

“The board is not to take sides,” he complained. “You are to be impartial. The very information presented to you has not been fair.”

He also faulted the BOA for changing the rules of the meetings during Hagerts’ tenure.

The board passed a measure stating applicants for a variance must wait a full year before they can bring an issue before the board again, and the issue must have substantially changed in that time.

The board and Hagerts argued over whether to call the structure a garage or a guest house.

The subsequent violations included a concrete pad that encroached on the side-lot setback and a children’s playground that had another structure on it.

Fremstad said the playground was nothing new.

Member Ken Grob said the Hagerts and their attorney “have not made any commitments to correct the nonconformities” and said that bothered him and placed the violations in a different light, one of deliberation.

And a septic system buried beneath the concrete floor of the garage was also illegal, BOA members pointed out.

The garage height also exceeds the maximum 25 foot level by six feet, the board noted.

The Environmental Services Office noted the violations in a flyover in the fall of 2010. Hagerts said they were not notified of any violations until 2011.

David Hagert conceded, “I took bad advice” from a struggling contractor who needed the work and built the garage. The contractor had also built the house.

“The upstairs was an evolution,” Fremstad said of the growing design.

The three-story structure has illegal decks protruding from it that also encroach on the shore impact zone.

Fremstad said because the decks are integrally tied to the roof structure, they could not be removed without undermining the entire building.

“The roof is tied to the under-decking,” Fremstad said.

“There have clearly been violations of the shoreland ordinance,” said Dan Kittilson, president of the Hubbard County Coalition of Lakes Association.

He said lakes are at risk from human impact.

“They need to remove the structure,” he said of the garage.

“Let’s assume there are no violations other than the septic,” said COLA member Chuck Diessner. “There’s no way in hell to leave this structure” in its current location. He said lake homeowners have a “duty to know” the shoreland statutes and abide by them.

“We wouldn’t even be here if Mr. Hagert had spent $500 or $700 on a surveyor,” Diessner added.

The Hagerts’ pastor and a parishioner of their Nevis church both attested to the sterling character of the Hagerts, asking the board not to question the couple’s integrity, “but to question their wisdom.”

“There isn’t a bad bone in their bodies,” said church member Doris Mitchell.

Whether the channel adjacent to the property is a public waterway was also a bone of contention.

The BOA’s outside attorney, Scott Anderson, attended the meeting and verbally jousted with Fremstad several times as each tried to make a point.

The two sides also argued over late introduction of exhibits. Fremstad said he assembled the meeting supplements in the time he had after the county made its disclosures public.

Anderson urged the board to admit the exhibits.

“Do you want to hear him talk another hour?” he asked the board.

The case has already been through the court system. Hagert’s next appeal is to District Court.

In other business, the board, acting as the planning commission, granted a Conditional Use Permit to Tim and Deb Skadberg with several conditions attached. The couple is reopening a resort on Lake Ida that has been closed for many years.

As Board of Adjustment, the board also tabled a request by Robert Otto to improve a Duck Lake home until members could see the property without snow cover. Otto said he would downscale the proposal before returning in May.

Sarah Smith

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

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