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Builder mulls appeal of BOA rejection

BY Sarah smith

A Laporte homebuilder, on behalf of his clients, said he might appeal an adverse decision last week by Hubbard County’s Board of Adjustment denying installation of an open loop geothermal heating system.

Bryan Kerby of Northwoods Log Homes said he was astounded at the decision to deny Greg and Jeanne Mehlhop a variance for their Garfield Lake home to have such a system, when he’s built many other homes outside Hubbard County that allow them.

Kerby questions whether the Mehlhops were unfairly targeted after a neighbor complained to the Environmental Services Office that their heat pump was discharging into the lake, causing “erosion problems.”

Kerby maintains the running water was a temporary situation caused by “a disconnection of the well system plumbing into the house” and only lasted 24 hours.

Because the Mehlhops’ drain system hadn’t been completed due to winter, it didn’t handle the volume of water. But he disputes there was any erosion into the lake.

“The discharge from the drain tile was contained behind the existing ice ridge and did not progress into the lake prior to being absorbed in the ground,” Kerby and heating contractor Justin Isaacson wrote in a lengthy rebuttal to an ESO letter stating their clients had violated a Shoreland Management Ordinance.

The contractors also disputed that a closed loop system, which the ESO had favored, was possible.

It would have cost twice what the open loop system had, would have required a massive amount of excavation near the shoreline and would have required more space than was available on the lot.

“No, a closed loop system is not a viable option on this lot,” the rebuttal states. But such systems are allowed.

“Discussion with several installers and the local hydrologist and well drillers indicate that there are a significant number (of) ground water open loop systems in operation in Hubbard County, the contractors’ rebuttal states.

The BOA, in part, denied the variance because part of the system and the well was within the lake’s ordinary high water mark. But members also questioned whether the technology of the expensive system was environmentally sound.

“Surprisingly, the DNR does not yet regulate/prohibit discharge from such a system into a lake – although the area hydrologist has indicated that the DNR will likely be studying the issue in the near future and that regulations may be developed as a result of researching the matter,” the ESO staff recommendations indicated.

Kerby argued at the meeting that the BOA could not refuse to issue the variance on the basis of laws that might be passed in the future.

“A literature review clearly shows that ground water open loop heat pump systems are the oldest form of functional heat pump technology,” the contractors’ rebuttal states.

Kerby suggested at the meeting that oversight might be the primary responsibility of the state, not Hubbard County. And he said if Hubbard County has a problem with heat pumps, it should register its concerns with the DNR, which could then initiate legislation.

Kerby especially disputed the ESO’s findings of fact, which the BOA adopted as the basis for its rejection of the system.

In the variance process, a number of questions are asked in finding whether a variance is warranted.

Since the board has been sued over past variances, the ESO office now answers those “findings of fact” questions and urges the board to adopt them in its final consideration.

Kerby maintains the findings in the Mehlhops’ case were erroneous, yet still formed the basis of the denial.

The couple has 30 days to appeal the BOA decision in court.

There is currently another Hubbard County variance before the Minnesota Court of Appeals dealing with a guest house built above a garage on Deer and Shallow Lakes.

That case has been in the court system for more than a year.

Sarah Smith

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

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