by Tom Beaver
With the ink barely dry on the Minneapolis Star Tribune four part series on Minnesota's declining natural shoreline, wetlands, and water (part three of the series concentrated on the Brainerd lakes area), we see a Crow Wing County variance decision being challenged in court by Crow Wing Environmental Protection Association (CWEPA), Crow Wing Lakes and Rivers Alliance (LARA), and eight individuals.
The litigation was brought about by a decision of the County Board of Adjustment (seven citizens appointed by the County Commissioners to hear, weigh, and decide land use requests that deviate from the county zoning ordinance or are existing violations of this ordinance). The Board of Adjustment (BOA) voted 4-3 to grant an after-the-fact variance (this means the work was already done before the homeowners applied for permission to do it) to allow the construction of what is essentially a new house (only one non-load bearing wall remains from the original structure) 15 feet from the water's edge. It is estimated the new roof overhang brings it to 7 feet from the shore. The floor of its new full basement is below the ordinary high water level.
The question is, in light of what we now know about the connection between run off and ground and surface water quality, (set aside for the moment the visual intrusion this structure has on the lake), how can four individuals approve of such a blatant and obvious violation of the State and County Shoreland Conservation Act as well as of the County Zoning Ordinance? This is a question eight residents of the lake in question, CWEPA, and LARA want brought to the judicial table.
So far, over 20 individuals and lake associations have contributed funds to the litigation effort being handled by Brainerd attorney, John Erickson, who is working for half his standard fee. The township in which the lake is located also wants some answers as to why someone was allowed to so blatantly violate the zoning laws.
There is another disturbing factor that may have influenced the four board members to vote to allow the violation to stand, with the only penalty being a fine and the requirement of flood insurance. On July 17 the County Enforcement Officer reported the violation and issued a cease and desist order. On September 11 a County Zoning Inspector did an on-site visit and noted in her memo that there was no hardship that had prevented reasonable use of the property before the violation; the violation significantly altered the character of the neighborhood, and the violation conferred on the applicant special privileges. All these are reasons for not granting a variance. She suggested several options for rectifying the violation, including removal of the structure, restoration of the site, and filling the basement.
On September 18, the County Planning and Zoning Office Coordinator noted all violations in a memo to the BOA. She cited Section 4.1.1 of the Zoning Ordinance which states non-conforming structures (which this was before it was "remodeled") cannot be "rebuilt, except in conformity with the provisions of this ordinance." However, she then recommended approval of the after-the-fact variance.
This inconsistency on the part of county zoning staff was enough to confuse even the most diligent BOA members. Why did a well trained and experienced county staff seemingly do a 180 degree turn and support this obvious and monumental violation of the County Zoning Ordinance?
In a more recent hearing of an after-the-fact variance involving blatant violation of the ordinance, the same board upheld the Zoning Ordinance and unanimously denied a request to allow a landscaping violation to remain. The property owner was directed to remove what he reported to be $30,000 worth of terracing, interlocking stone, flagstone, and fill and to restore the lakeshore to its original condition. He was also advised to take legal action against the landscaper who did the work for him. I'm sure such decisions are not easy for board members to make, but they must remove themselves from all emotion, empathy, and sympathy and base their decisions on the Zoning Ordinance alone.
It would be folly for me to try to explain the thinking of individual BOA members in deciding these cases. But allow me to set forth several points for you to ponder:
*The educated and experienced judges on the U.S. Supreme Court voted down party lines in their decision on the Florida presidential vote count.
*Although there are no political parties in Crow Wing County government, there are different "zonal" philosophies that could affect decision making when evaluating county laws.
*I have been involved in county land use issues for six years, and in that time the county has had three Planning Administrators and numerous changes in staff, board appointees, and elected officials. Can these citizens be expected to make sound decisions without training? With human ego, greed, intimidation, competition, et al, it is amazing that regulatory government units (RGUs) work at all.
Back to the appeal. If you would personally like
to help support the legal effort to get this bad decision reversed,
LARA has established a legal fund to which you may contribute. Any
amount is welcome, and it is tax deductible. And, if you would personally
like to see your county, township, or city RGU function with consistent
integrity, work for qualified and educated/trained representatives, be
they elected or appointed. Or, get involved yourself. It can
be rewarding work.
UPDATED May 1, 2002
