A recent Minnesota Court of Appeals ruling against Crow Wing County sets the stage for a rare citizen appeal of a variance granted to allow recreational vehicles to park closer to the water than usual on a lakeside property on the Whitefish Chain.

Seeking dismissal of the variance appeal, the attorney representing Crow Wing County argued it wasn’t filed in time and the appellant failed to serve a formal summons. The district court judge disagreed and the state appeals court upheld that ruling, finding the appeal was timely and could move forward.

The precedential opinion establishes case law on the matter, meaning other courts will use the decision to contemplate similar issues in the future. It also means a forced change in notification practices for the county and represents an expanded view of the rights of those who disagree with decisions of the planning commission/board of adjustment on land use.

“That’s neat for the establishment of law,” said Mark Severson, one of the attorneys representing the group of neighbors upset with the granted variance, during a phone interview. “Before pursuing this appeal, I said, ‘Don’t be surprised if this ends up in the Supreme Court.’ Because this has been an issue in a few CUP (conditional use permit) cases, parties not really able to get an appeal in on time. The cards are really stacked against property owners that want to contest decisions from a board.

“ … We really made it an access to justice type of issue, where how can you really expect an aggrieved neighbor to have the opportunity to appeal if they never get true notice of a final decision?”

Crow Wing County Administrator Tim Houle said the appeals court decision means the county must alter its notification procedures for planning and zoning public hearings moving forward, although the scope of what’s required remains unclear from this recent ruling.

Typically, the county sends written notice of public hearings concerning land use to anyone who owns property within one-quarter mile of the site in question. The ruling, however, means the county is also obligated to send written notice of the final decision to at least this group of people, if not a wider net. Providing a copy of draft minutes from the hearing is not sufficient notice, the appeals court ruled, because they’re a draft, not the final version, which is reviewed and approved by the board at its next meeting.

“We had never, after the fact, then sent a copy of that decision to all of the people we had notified about the public hearing,” Houle said. “I’ve never seen this requirement come forward, but in order to preserve their appeal right, we have to provide them notice. That’s what I tease out of this decision.”

Crow Wing County did not appeal the latest ruling, letting the decision stand.

Variance on Arrowhead Lake

The 2019 requests for a conditional use permit and multiple variances at issue originated with owners of a parcel located on Arrowhead Lake, along the channel with Lower Whitefish Lake.

Property owner Henry Hansen of Sunset Shores WF, LLC, sought the permit for dirt moving within the shoreland impact zones after the fact — meaning they’d already moved dirt and filled in some wetland areas without approval. By the time the public hearing on the matter came before the planning commission in August 2019, Crow Wing County had already taken action to order some removal of dirt from wetland areas on the property.

As part of the same application, Sunset Shores also sought three variances from the county’s land use ordinance: one allowing three dwelling units instead of two (in this case, RVs intended to be parked longer than 14 days straight); one allowing a driveway to be constructed in the shoreland impact zone; and one allowing the RVs to be 50 feet from the ordinary high water level, instead of the required 100 feet.

The requests were met with staunch resistance from neighbors in the area along with the Whitefish Area Property Owners Association and the Minnesota Department of Natural Resources, all of whom recommended denial of the application. The DNR went further, indicating the county’s own application of its ordinance, in this case, allowing a dwelling and guest dwelling on the property — or two RVs — was also not in step with the state standard.

“This lot is not large enough for 3 units, and the planning report omits lot size considerations. … This lot is only big enough to accommodate 1 unit,” wrote Heidi Lindgren, area hydrologist with the DNR, in a June 19, 2019, email. “ … If the setback variance is considered, the DNR recommends denial. The need for the variance is not due to the unique circumstances to the property; it is due to the personal preference of the landowner. Having three travel trailers is the preference of the landowner. This lot and many other riparian lots in Crow Wing County and the State of Minnesota are not large enough or suitable to accommodate three travel trailers.”

Neighbors cited water quality concerns, impacts on wildlife and unsightly aesthetics of the property, alongside appeals to the planning commission for fairness. The owners should have known the property was unbuildable when they purchased it for a price below market value, some argued, and granting the requests would be a slight to those who follow the rules.

“The ordinances pertaining to how much and where you can alter the shoreline and wetlands seems written to protect against this exact action,” wrote Tom and Sharon Hermel, who live on Sunset Shores Road. “ … Granting the conditional use permit for dirt fill that has already transpired is rewarding bad behavior and a message transmitted to the public that applying for a permit ‘after the fact’ is acceptable.”

During the hearing, Hansen defended his requests and his family’s use of the property. He said he could share his own concerns about ways he sees neighbors impacting the lake but knows they have rights to use their property as he does.

“It seems to me like it’s somewhat one-sided. There’s a fair amount of inaccurate statements that have been said, which I kind of take offense to and feel harassed,” he said during the August 2019 hearing. “ … I feel like I’ve earned the right to own and occupy a parcel of property within certain guidelines. I don’t have trash and I’m not trailer trash. I feel I can choose to enjoy what everybody else gets to enjoy.

“Where everybody else’s cabin sits now was at one time very natural as well. There was fill brought in to build your cabins, there was roadways put in to build those, you know, beaches built. … I hope you guys take everything into consideration and vote positively on this.”

The planning commission ultimately approved the conditional use permit for dirt moving with no additional fill allowed and the requirement for vegetative screening to the public waters. It also gave the OK for one of the three variance requests, allowing two dwellings to be within 50 feet of the water. They did not allow the driveway to be built in the shoreland impact zone.

The vote on both the permit and variance was 2-1, with member Rebecca Best voting against, member Rick Skogen absent and Chairman Don Hales abstaining. Members Mark Haglin and Rock Yliniemi voted in favor. Hales said during the meeting he would abstain because rules did not permit him to vote to create a tie. Houle clarified Tuesday this was in reference to Robert’s Rules of Order, which governs parliamentary procedure. While not a steadfast requirement, Houle said it’s common practice for board chairs to avoid creating a tie.

‘We all have rights’

Severson said his clients are appealing the decision because they believe it allows for too much impact in a sensitive shoreline area on a low-lying property with a high water table.

“Their endgame is just, follow the law and have one trailer 100 feet back from the sensitive shoreline impact zone,” Severson said. “ … I think in this case the most important factor is the neighborhood and what all the neighboring properties look like. He’s really trying to fit a square peg through a round hole.”

Free to move forward with the variance appeal process following the Minnesota Court of Appeals ruling and no additional challenge by Crow Wing County, Severson acknowledged it’s a tough road for his clients in this case and in general for citizens who seek to challenge the decisions of local appointed boards.

“It’s virtually impossible to overturn a decision from a board,” Severson said. “ … Because of how virtually impossible it is to overturn a decision, that’s why it’s incumbent on board members and planning boards to really take it seriously because they do have a lot of power. … We have to prove that the decision was issued in an arbitrary and capricious manner. That’s a high burden.”

Severson said despite the challenge before them, he believes it’s important for citizens to have their voices be heard.

“There’s only so many ways we can have an impact on local level politics, and I’d say real estate development and zoning issues is a pretty strong one,” he said. “It’s about the one area left where you have a lot of local authority.”

Houle said in his 27 years in local government, this is just the second time he’s witnessed an appeal of this nature. Another group of neighbors recently entertained an appeal when they opposed a permit and variances issued for a storage condo development on County Road 118, but backed off when they learned the high cost of litigation and the likely outcome.

“We all have rights in our system. We all do,” Houle said. “It is not free to avail ourselves of those rights if someone is trampling them. And that does mean that if you can afford to enter the fray, you’re more likely to prevail.”

A look at county planning and zoning decisions

The Crow Wing County Planning Commission/Board of Adjustment handles land use requests on properties located outside a local jurisdiction with its own planning and zoning department. A committee made up of two decision-making bodies consisting of the same members, each has specific roles.

The planning commission reviews all plats, planned unit developments, zoning map amendments and amendments to the zoning ordinance to make recommendations to the county board. The planning commission also has the authority to grant conditional use permits. The board of adjustment has the exclusive power to issue variances along with hearing appeals of any decision made by any county officials charged with enforcing the land use ordinance.

Conditional use permits cover things broadly allowed under the county’s land use ordinance but with certain conditions met, while variances are for actions not allowed under the ordinance.

A data request of the last five years of board decisions shows a high rate of approval of requests for conditional use permits and variances. Between January 2016 and April 2021, the board approved 100% of the 49 conditional use permits sought and 252 of 274 variance requests, or 92%. Of the 346 items under consideration, the board split its votes 16 times, and in four of those instances, the variance request was denied as a whole. A board member abstained from voting on seven occasions, twice resulting in 2-1 votes coupled with an absent member.

“Due process rights means that citizens must be given an opportunity to tell you why you should vary from the strict requirements of the ordinance,” Houle wrote in an email. “Typically, it is if the strict application of the ordinance would produce an unreasonable or untenable outcome, the Board of Adjustment (BOA) has the authority to vary from the strict requirements of the ordinance. What is untenable or unreasonable is, of course, in the eyes of the beholder, which is probably why this field is more heavily litigated.”

Houle said while on its face the statistics show a tendency toward approval, they do not account for applications that never make it to the board in the first place or those significantly changed from the initial proposal based on county staff feedback.

“Just as with County Board meetings, I have a sense of whether something will get three votes or not and, if something cannot get three votes, I do not bring it in just to force a crash and burn,” Houle wrote. “Applicants for variances and CUPs make the same determination, which is why the rates of approval here are probably comparable to the rate of approval for things at the County Board. There are some times when they unexpectedly say no, but most times I already know if the answer is no and advise people accordingly. Our staff in P&Z (planning and zoning) does the same thing.”

CHELSEY PERKINS may be reached at 218-855-5874 or chelsey.perkins@brainerddispatch.com . Follow on Twitter at twitter.com/DispatchChelsey .

1/2: A light blue outline marks the parcel at issue in a variance appeal brought to court by neighbors upset with a variance granted by the Crow Wing County Planning Commission/Board of Adjustment. Map / Crow Wing County

2/2: A photo submitted to Crow Wing County by a neighbor shows multiple recreational vehicles and other vehicles parked on a property on Arrowhead Lake. The property is the subject of a variance appeal after the planning commission/board of adjustment allowed the property owner to park 50 feet closer to the water than usual. Photo / Crow Wing County