For 34 years, it was part of the process: If you wanted to build along the shoreline of the lower St. Croix River, the state needed to sign off on any plans that didn’t strictly adhere to the rules of the federal Wild and Scenic River Act.
Those rules, covering everything from a building’s size to its proximity to the water, were designed to protect the river’s unique character. Requests for variances were rare, about 60 over those years, but more than 90 percent were approved by the Minnesota Department of Natural Resources (DNR), the agency charged with protecting the river.
But the DNR’s role in making those decisions changed in 2010, when the state Supreme Court found that it didn’t have the legal authority it presumed it had when it turned down a variance for an 8,000-square-foot home broadcasting magnate Rob Hubbard requested in Lakeland. That authority, the court said, had never been spelled out in state law.
Now, a bill before the Legislature has reopened the debate over who has ultimate control over future development along the lower St. Croix — the cities and townships lining its shores, or the DNR.
The bill, which had its first hearing Tuesday before the Senate Environment and Energy Committee, was approved by a hand vote and passed on to the State and Local Government Committee. A similar bill has also been introduced in the House.
“It’s an attempt to re-establish that there be some consistent oversight of variances,” said state Sen. Katie Sieben, DFL-Newport, the bill’s author. It will provide needed clarity for local governments, she added, and help them make legally defensible decisions.
As was the case before the Hubbard decision, Sieben said, the DNR would review and certify local zoning ordinances and variances on the stretch of St. Croix from Taylors Falls south to where the river meets the Mississippi River at Prescott, Wis. It also would follow the previous criteria for granting variances.
Since much of the private land along the lower St. Croix is already developed, most variance requests involve razing older structures and replacing them with larger ones.
That was the case last October, again involving Lakeland, in the first post-Hubbard showdown over a variance challenged by the DNR.
The Lakeland City Council, ignoring a recommendation by its Planning Commission, approved five variances for a new river bluff home which, among other things, allowed the home to be taller and closer to the bluff’s edge than rules allow.
Similar variance requests are likely in the future, said Deb Ryun, executive director of the St. Croix River Association.
“Without this bill, the only recourse for the DNR is to take local governments to district court, a costly and adversarial process,” she said.
A patchwork of local zoning standards poses a risk to what makes the St. Croix River a special place, Ryun said. And the river’s value goes beyond the aesthetic. Drawing $25.8 million in tourist dollars last year, the St. Croix is the second-most popular tourist attraction in Minnesota after the Mall of America, according to the AAA, she said.
Ultimately, the DNR opted against going to court in the recent Lakeland case. Bob Meier, assistant DNR commissioner, said the Hubbard decision has now made the legal bar very low for granting variances.
Local vs. state
The issue of local control has become a political flash point on many issues, and oversight of the St. Croix is among them.
“It’s tricky. We like local control, and giving it up is pretty difficult,” said Bill Palmquist, a City Council member in Afton who personally supports the bill because it brings uniformity to zoning regulations.
But the League of Minnesota Cities and the current and former mayors of Lakeland oppose the bill.
“It seems we precipitated this — by winning,” said Lakeland Mayor Bob Livingston, referring to the Hubbard case. People in Lakeland care deeply about the river, he said. “This is an attempt by the DNR to impose a new level of government control in a place which wouldn’t really benefit from local control.”
Brian Zeller, Lakeland’s mayor in 2010, said the bill fails to balance the needs of development and recreation by putting “all of the decisions about the river into the hands of one state employee.”
Craig Johnson, lobbyist for the league, said his group favors local control and fears the bill represents a first step toward asserting authority over other major bodies of water, such as Lake Superior and the Mississippi River.
“We think the tools are already there for the DNR,” he said.
Sieben, however, said those fears are unfounded.
“The bill is certainly tailored just to apply to the lower St. Croix,” she said.