In the spring of 2002, Tom Beaver wrote about a recent decision of the Crow Wing County Board of Adjustments (BOA) decision to allow an after-the- fact variance for a property on Placid Lake (near Deerwood). The Crow Wing Environmental Protection Association (CWEPA), The Crow Wing County Lakes and Rivers Alliance (LARA), and a coalition of Placid Lake neighbors filed suit against both the county and the property owners. In a ruling of August 27, 2003, a district court opinion said that the variance granted by the BOA was declared invalid.
In August 2000, the property owners sought a variance from the Crow Wing county Board of Adjustment to build an addition and make improvements to a lakeside cabin that was only 15 feet from the shoreline. the variance was granted, but county inspectors found 10 conditions of the variance had been violated. The excavation needed to install a basement placed the floor below the ordinary high water line. The county issued a "cease and desist" order in May of 2001. In October of 2001, the county BOA agreed that the terms of the original variance had been far exceeded. The property owner argued that restoring the property would cause more environmental harm than benefit. On a close 4-3 vote, the BOA granted a second "after-the-fact" variance. That was when the suit was filed leading to the repeal of the BOA decision.
The following column by Charles Marohn appeared in the Lake Country Echo of November 12, 2003. Charles Marohn, Jr. is a professional engineer and planner and is president of the Community Growth Institute, a rural land use think tank that provides planning and zoning support to many area communities. His columns appear periodically as guest submissions in Echo publications, focusing on planning, zoning and land use topics.
In planning-zoning, offenders often
prefer to ask forgiveness--rather than permission
By CHARLES MAROHN Guest
Columnist
Sometimes it is easier to ask for forgiveness than for permission.
That has historically been true as it pertains to zoning issues, where locals write the laws and neighbors judge the requests of neighbors. There can be few things more uncomfortable than to be under the interrogation lamp in front of a local planning commission or city council, pleading your case to a body that often seems as ignorant of the minutia in the local zoning code as you are. To those outside the system, sometimes it seems to be not what you know, but who you know. Not what you are asking for, but how you are asking for it.
Cities and counties are, by law, generally given very broad discretion over how they interpret their own ordinances. This freedom is greater than most governmental bodies understand they have, or would be even willing to exercise if they did. Enforcement powers do have their limits, however, and those begin and end with the courts.
It is not a simple decision for a city or county to bring a court case against one of its own. Doing so involves spending thousands of tax dollars, will often extend through more than one election and ultimately local politicians run the real risk of losing outright. And there are always two sides to every issue. Few are without at least some friends who will argue the offense is not that great, the remedy not justified and can’t we all just get along.
For property owners who do not bother to get permission, the court system has historically provided a great way to, if not attain forgiveness, at least find mercy. Often the only way to fix a land-use violation is to tear down a structure: an expensive and unpalatable proposition. For the savvy or the well-heeled, there is a trump card in the fact that Central Minnesota courts have been reluctant to force property owners to remove illegal structures.
That reluctance may be fading slightly.
The Crow Wing Environmental Protection Association, the Crow Wing County Lakes & Rivers Alliance, and a coalition of Placid Lake neighbors recently won a decision against Crow Wing County and a pair of property owners who had constructed in violation of the County’s ordinances and the conditions of a special permit that had been granted.
In a decision that has many implications, Judge David Ten Eyck found that Crow Wing County had failed in its responsibility to protect the public interest when it issued a second special permit after the unauthorized construction had occurred. The Judge ordered restoration of the site, which will force removal of most if not all of the new structure.
With respect to zoning matters, Judge Ten Eyck stated that “The axiom of ‘It’s better to ask for forgiveness than permission’ is clearly a standard which should come to an end or not be used to begin with.”
Hopefully Central Minnesota
is listening.
UPDATED November 17, 2003
