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Environmental violations are chronic issues

The ever-vexing problem of shoreland ordinance violations reared its ugly head - again - last week at the regular meeting of the Hubbard County Board.

Commissioners increasingly are being asked to refer cases for prosecution involving homeowners who violate environmental regulations.

And the board seems to be divided on how best to handle this chronic issue.

The case brought before the commission Sept. 17 involved a Long Lake homeowner from out of state who relied on a Brainerd contractor to do some landscaping on the property.

"My impression is he took down some dead trees and some other mature trees and replaced them with ground-hugging vegetation," said commissioner Greg Larson, the former county attorney.

The property owner relied on the contractor in good faith, and when notified that he was in violation of an ordinance, tried to rectify the matter, Larson said.

Hubbard County Environmental Services Officer Eric Buitenwerf requested the board refer the matter for prosecution because the clearing of vegetation violated a bluff impact zone provision.

That's when different philosophies clashed. Commissioner Don Carlson, at the urging of fellow commissioner Lyle Robinson, made the motion to refer the matter to the county attorney's office.

The board promptly vetoed the motion.

Ironically, the discussion occurred just after commissioners gave preliminary approval to "Ordinance No. 37," which spells out procedures for developers to obtain various environmental documents for constructing shoreland projects.

The ordinance must undergo legal review and a hearing before approval.

Portions of the ordinance, specifying who should be notified of a pending project, concerned Robinson. To date, the draft ordinance has not received any public comments, Buitenwerf told the board.

"Under these rules I could develop a 500-foot piece and be the only one who got notice," Robinson said of the 500-foot notification provision. "The biggest gripe people have is that, 'I never got notice,'" he said of the angry citizens who show up at public hearings. "It seems like you should have a standard notification policy."

But notification played second fiddle to the issue of how to handle violations.

"I don't see any point in sending it for prosecution when he's going to negotiate a settlement," board chair Cal Johannsen said of the county attorney's likely approach to the situation.

Robinson took a hard line approach. "He has the legal right to do that," he said. "What right do we have to negotiate the ordinance?"

"Why have a law if you're not going to enforce it?" Carlson asked, echoing Robinson's position.

"Are we cutting off our nose to spite our face?" queried commissioner Dick Devine, who questioned the expense of prosecuting a homeowner trying to work out a satisfactory solution.

"We have so many rules, regulations and ordinances we expect homeowners to be walking encyclopedias," he said.

"It's more apt to get settled if it's in the county attorney's court," Robinson suggested.

Robinson, in seconding the motion to refer the matter for prosecution, voiced concern that the homeowner was notified of the violation July 15 and has been working through an attorney to correct the matter. But he said he believes shoreland ordinances should be upheld, even if that means prosecuting offenders.

Commissioners, in the case before them, questioned whether the homeowner would be required to replace the dead trees.

"If you have to re-vegetate it how do you put back a big tree?" Devine asked Buitenwerf.

The homeowner must plant trees "as large as practical," Buitenwerf replied.

Larson, in an interview after the meeting, wondered if the board is acting too hastily in referring such violations for prosecution.

"In my years as county attorney we only had one criminal case and one bad faith violation we actually did prosecute," he said. He said he was concerned that the board is given too little information to act on.

"We authorized one lawsuit where a guy had put patio block on the ground to park his car," he recalled. "We didn't know what it was about; we authorized litigation."

Larson said he was troubled when they learned the exact nature of the violation. "Concrete block on the ground is considered a structure?" he wondered.

He questioned whether the Long Lake homeowner's removal of pine trees actually benefited the environment, rather than harmed it.

"I'm thinking if you've got mature trees especially pine trees you've got black dirt on the ground under most pine trees," he said.

"Once on Long Lake I saw this pine tree plantation so thick you couldn't see the water," he said, describing a similar situation. "Underneath it was black dirt that runs right into the lake and I thought nobody's gaining here. The environment isn't gaining because you have all that runoff and the homeowner isn't gaining because he can't see the water."

Larson said the mish-mash of county, township and other ordinances is confusing. And there are degrees of discretion built into those ordinances, along with degrees of culpability on the part of the homeowner. It can be very subjective, Larson asserted.

The Long Lake homeowner applied for a variance after commissioners extended his time to comply with Environmental Services.

But this is just one case of many facing the board.

"This might be a political no-no but wouldn't we be better off with uniform zoning?' Larson asked.

"The attitude is trying to keep the shoreland as natural as possible and when possible return it" to its natural state if it's been disturbed, Larson said. "But there's the attitude that us north woods people don't want government telling us what to do until my neighbor's doing it and then we want you to make him take his down," Larson said, describing the board's unenviable position.

And that is the vexing question commissioners face every other week, when another shoreland violation comes before them.