State is sending a message with lakeshore lawsuit

  • Article by: JIM SPENCER , Star Tribune
  • Updated: August 4, 2010 - 11:03 PM

In the rare challenge, DNR sues a township for giving permission to build house 14 feet from a lake.

As more homes creep closer to Minnesota's environmentally sensitive lakeshore, the state Department of Natural Resources is pushing back by suing a western Minnesota township that allowed a property owner to build a house 14 feet from Ida Lake. The rare move could signal a new statewide emphasis on controlling building on waterfront land.

"This is a shot across the bow on the part of DNR," said Brad Karkkainen, an environmental law expert at the University of Minnesota.

Karkkainen said the new suit against Cormorant Township will send a message to localities that are allowing more buildings -- often expansive vacation homes -- that exceed state standards for size and distance from the water's edge and create polluting stormwater runoff. "The importance of the suit," he said, "is in setting a policy precedent that DNR will use state resources to prosecute."

The DNR may have been emboldened to act by a June 24 state Supreme Court decision that narrowed the definition of when variances are allowed.

DNR legal actions against localities are rare -- perhaps only one a year -- said Kent Lokkesmoe, director of the agency's waters division. But they are usually meant to have an impact beyond an individual community. "We don't sue local governments very often," Lokkesmoe explained. "When you do sue, these [local governments] talk to each other."

The DNR suit, filed July 6, came less than two weeks after a Star Tribune series revealed that many municipalities in the state routinely grant variances on lakefront development. In some places, the newspaper found, variance approval rates rise to nearly 9 percent.

The Cormorant suit, filed by the state attorney general's office on behalf of the DNR, questions why the township in northwest Minnesota's Becker County agreed to let Richard Hanson build near the lake's edge a house roughly five times larger than a 576-square-foot family cabin. State law allows replacement buildings only the size of the older structures at their original sites. In Hanson's case, the law required that a home larger than 576 square feet be built 100 feet from the lake. But like many local governing bodies, Cormorant's Board of Supervisors exempted a lakefront property owner from the rules, even though planning officials advised against it.

Cormorant Supervisor Steve Sorenson said that most property owners who apply for variances get them. Sorenson, who has held office for 12 years, estimated that during his tenure the township approved 70 to 80 percent of variance requests from lakeshore property owners. Since 2007, the township's lawyer said, Cormorant has granted 12 of 17 or 71 percent of variance requests.

The Star Tribune found an 88 percent variance approval rate from 2005 to 2010 in Cass and Crow Wing counties in north central Minnesota.

DNR's Lokkesmoe said 80 percent approval rates "seem high," but added that variance requests must be judged individually.

What is a hardship?

The state's suit challenges Cormorant's application of the "undue hardship" rule that is supposed to govern who qualifies for a variance. Lake conservation advocates believe loose, inconsistent interpretation of the hardship rule has led to the widespread approval of variances that collectively endanger the states' lakes. On June 24, the Minnesota Supreme Court tightened the undue hardship rule in landmark fashion by saying variances can be issued only if property owners have absolutely no other "reasonable" way to legally use their land.

"Using that standard, a lot of those lakefront variances won't stand up," Karkkainen said.

In the Cormorant case, the state charged that "[t]he variance was unjustified because, among other things, the applicant did not demonstrate undue hardship and Cormorant Township failed to create any record demonstrating that Hanson met the required standards ..." Hanson had room to build his new home with a legal 100-foot setback. Instead, the township let him build entirely in what is supposed to be a restricted area.

"I have a client who thought he was doing exactly what he was supposed to do," said Hanson's lawyer, Charles Ramstad. "He was told he needed a variance, and he got one."

Once the town approved the variance at a May 11 meeting, Hanson had a contractor pour concrete footings for his new house. The footings are now 14 feet from Ida Lake, well inside the environmental impact zone that scientists say could seriously pollute and otherwise hurt Ida Lake's public waters. Ramstad refused to say how much Hanson spent on the concrete, but he called the expense "significant."

Kristi Hastings, a Fergus Falls lawyer hired by the township, declined to discuss the details of the township's actions. But the suit says the board knew that Hanson had room to build 100 feet from the lake and didn't make him do so.

The state wants the variance ruled illegal and Hanson's footings dug out. Hastings and Ramstad hope to meet with state lawyers to settle the case.

With or without a court hearing, the DNR suit in Cormorant leaves localities across the state with a new message, Karkkainen said:

"Variances are not a matter of convenience for property owners."

Jim Spencer • 612-673-4029

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