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HomeMy WebLinkAbout02000990427000_Variances_09-09-1999Variances 2 Barcode 128 881GS6 OFFICE OF COUNTY RECORDER OTTER TAIL MINNESOTAOFFICE OF COUNTY RECORDER OTTER TAIL MINNESOTA I hereby certify that this instrument # oo X8oo was filed/recorded in this office for record on the n day of \ -----2001 atWendy L. Metdalf, County RecoBder^ well certificate I hereby certify that this instrument # _ was filed/recorded in this office for record on the day of■‘?r/rf 1999 at 9.75 (^^m dy L. Metcalf, Cpunty Recorcter ^ Recording fee o 852888 i/n Wen dpDtyby: well certificate THE ABOVE SPACE IS RESERVED FOR THE COUNTY RECORDER APPLICATION FOR VARIANCE COUNTY OF OTTER TAIL COURTHOUSE, FERGUS FALLS, MN 56537 (218) 739-2271 ***COMPLETE THIS APPLICATION IN BLACK INK *1** Application Fee /Receipt Number ^eajn laJ dherQl iiall(j Po ^44 . LshiPA)^ hP. ^ DAYTIME PHONE 0o(PROPERTY OWNE ADDRESS G- DLAKE NUMBER LAKE NAME LAKE CLASS ZIV A^o/CVoSECTIONTOWNSHIPRANGETOWNSHIP NAME PARCEL NUMBER O ~O0<J> Q -D 9Z 7-000 ALL OF LOT NINE (9) OF JONELSA BEACH ON FILE AND OF RECOFIO IN THE OFFICE OF THE COU-STY AECOROES IN AND FOR OTTER TAIL COUNTY. MINNESOTA. TOGETHER WITH THAT PART OF LOT EIGHT (S) OF SAO JONELSA BEACH WHICH LIES SOLFTHWESTERLY OF THE FOLLOWING DESCRIBED LINE: COMMENCING AT THE .MOST WESTE.RLY CORNER OF SAID LOT EIGHT (3); THENCE NORTHEASTERLY ALONG THE NORTHV/ESTE.RLY LINE CF SAID LOT EIGHT (8) TO A POINT 30.00 FEET NORTHEASTERLY OF THE SOLfTHY/ESTERLY LINE OF SAID LOT EIGHT (3) AS MEASURED AT A RIGHT ANGLE TO SAID SOUTHWESTERLY LINE. SAID POINT BEING THE POINT OF BEGINNING: THENCE SOUTHEASTERLY PARALLEL WITH THE SOUTHWESTERLY LINE OF SAID LOT EIGHT (3) TO THE SOUTHEASTERLY LINE OF SAID LOT EIGHT (8) AND SAID LINE THERE TERMINATING. TOGETHER WITH ALL OF LOT NI.NE (9) OF ISAACSON'S ADDITION TO AUGUSTANA AND JONELSA BEACH. ON FILE AND OF RECORD IN THE OFFICE OF THE COUNTY RECORDER IN AND FOR OTTER TAIL COUNTY. MINNESOTA. TOGETHER WITH THAT PART OF LOT EIGHT (c) OF SAID ISAACSON'S ADDITION TO AUGUSTANA AND JONELSA BEACH WHICH LIES SOUTHWESTERLY OF THE FOLLO'NI.N'G DESCRIBED LINE- COMMENCING AT THE MOST NORTHERLY CORNER OF SAID LOT EIGHT (8); THENCE SOUTHWESTERLY ALONG THETYPE OF VARIAN northwesterly line of said lot eight (S) to a point lo.oa feet southwesterly of the northeasterly LINE Of said lot eight (8) AS MEASURED AT A RIGHT ANGLE TO SAID NORTHEASTERLY LINE, SAID POl.NT BEING THE POINT OF BEGINNING OF THE LINE TO BE DESCRIBED; THENCE SOUTHEASTERLY PAR.ALLEL WITH THE NORTHEASTERLY LINE OF SAID LOT EIGHT (8) TO THE SOLfTHEASTERLY LINE OF SAID LOT EIGHT (3) AND SAID UNE THERE TERMINATING. FIRE / LAKE I.D. NUMBER LEGAL DESCRIPTION vS structure Setback V SPECIFY VARIANCE REQUESTED l^c>^iihcaSe - Csee phctzjs) door enh-zLi^cg) o-f 'ih. hoo.i Iricruse /5 ^f/. -^l//. Ztf /'s a hcaa.td^ {Ainijime etn^eri'n^j or ^ uoe W(\.LStrYY\€ Serious ^dlu'I^sL c5m4.fl dcrnKeir txloo^e S'xi'sh'o^ door ifoallc^p) Ol Lckfd In'^iql/vi doorhuiUiim^. LOc (xre a.iso fe- fooh'ocj <t tf)A\r\ OidoitO - VAe rood j'S i€A.k>'r r Of AAe dA'tr)ne(^l>tCxase rurs Oiolmneof Ucl\[^ neeA5 -fv he ^ rlrodd ru/\S OjuJOiXA 5h>iae be SfruiCi-\Lr(LlU hi'^:jKer 4ke e)cC£h'r^^ rood. harArhifn - SAos\(Xr\k f\\rA Ink tPO crd I UNDERSTAND THAT I HAVE APPLIED FOR A VARIANCE FROM THE REQUIREMENTS OF THE SHORELAND MANAGEMENT ORDINANCE/SUBDIVISION CONTROLS ORDINANCE OF OTTER TAIL COUNTY. I ALSO UNDERSTAND THAT OTHER PERMITS MAY BE REQUIRED, IT IS MY RESPONSIBILITY TO CONTACT LAND & RESOURCE MANAGEMENT REGARDING THIS MATTER. (X- SIGNATURE OF PROPERTY OWNER DATE APPLICANT MUST BE PRESENT AT THE HEARING(Applicant Will Receive Notification As To The Date/Time Of Hearing) t/ i - /t-September 2,1999 . Page 21 O c£(jLfi^3^1 3S3'C63^ SiQ i-(?yO - oh / ^3 C« ! • '’ ' -■,3 /50./ 5^? / / / VjO- C /50tji ■ /■ O'oj 33^ td}:/j//'/ dd'hpft^o^-. y,0} (/3ySdm r . /// dOlcty-333 59 Jik r - Accepted By Land & Resource L & R Official/Date d' ^ 9. 99 I'JOTimeDate Of Hearing yn T Motion Sean W. and Cheryl A. Kelly - Approved/Denied Motion was made by Randall Mann, second by Cecil Femling and unanimously carried, to require that the applicants remove the boathouse by May 1, 2000, except for the cement bulkhead, and to allow the proposed maintenance to be completed on the main structure. Sean & Cheryl Kelly - Withdrawn - May 10, 2001 After discussion and by the general consent of the Board of Adjustment the review of this variance request as order by the District Court has beefTtabi^per the applicant’s verbal request, to the May 10, 2001 meeting of the Board of Adjustment. On April 30, 2001 a letm from was ireceived from Charles Krekelberg, Attorney, withdrawing the Sean and Cheryl Kelly variance application. The lette/noted that Sean and Cheryl Kelly would voluntarily remove the dormer from the boathouse and replace the glass sliding doors wnh wooden doors. It was noted that this proposal had befound acceptable. After discussion and consideration, motion y|sjj^ade by Randall Mann, second by Steve Schierer and carried with Job Maske abstaining, to ^cept the letter withdrawin Sean and Cheryl Kelly,I__ / / iscussed with both David Hauser and Bill Kalar and had been variance afcpiication as submitted by Mr. Krekelberg on behalf of 3j Chai/fnan/Otter tail County Board of Adjustment Permi^(s) required from Land & Resource Management X Yes (Contact Land & Resource Management) .*?"■j No Ufir Tl^hliUol LR Official/Date / ' ^ Copy of Application Mailed to Applicant And the MN DNR bk 0198-001 291.306 • Victot Lundeen Co.. 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'M. - !i;j+t i ! ir f^OT^OhJ - ytc f>^lU£Ui ^ ^7P >r}y<)/y^77?tn^<rjg> £til ^C H^06/"{C t^i^LJi^K__Pi^€mf*^S ^ fmPfi^\/I^^S SWi^i^i^<( _____ i itfU(*\u^C .* QtJO i- C£>f*^(nf»/Teo ^r /S^ 1[Z> (lf(y\4t\/f 4“ IJ^ Airt'/ BcT^cq^ IPH (S)* 0 \T Tt> Hetf The _ ( B or h SeCmeo J2> f^GiiCc TKi^r 7~Hg CCr^ (r/r C£>LU0 sc ^€fnis^t'a Git STT^'i AT THC Oi^'ctQfl t6i</ W€ APPiUr^t-iTS^_____________ £\^C^Ti ' NC€q fi pme O^cjoeo^iJfcS^/ G/lho E^^ts/V^ALL^ rr m///^v/?f DAVID J. HAUSER OTTER TAIL COUNTY ATTORNEY 121 WEST JUNIUS, SUITE 320 FERGUS FALLS, MINNESOTA 56537 ♦ (218)739-2271 FAX (218)739-4630 ASSISTANTS BARBARA R. HANSON KAREN A. COOPER KURT A. MORTENSON MICHELLE M. ELDIEN JENNIFER L. LESSINGER INVESTIGATOR J. ALLAN ANDERSON March 31,2000 Terrence J. Foy, Esq. 300 Peavey Building 730 Second Avenue S. Minneapolis, MN 55402 Re; In Re the Matter of the Decision of the Otter Tail County Board of Adjustment to Deny a Variance to Sean W. Kelly and Cheryl A. Kelly Dear Mr. Foy: Please find enclosed six pages from the minutes of the Board of Adjustment involving situations where variances were conditioned upon the removal of buildings. Also, there is another page indicating other instances where similar conditions were set. Very truly yours,/ David J. Hauser received 3 1 2000 LA.ND & RESOURCE DJH/mk Enc. Mr. William Kalarcc: April 1, 1999 Page 7 Francis A and Donna M Rieber - Denied Francis A and Donna M Rieber, Perham, MN, requested a variance to place campers less than 50’, but no closer than 10’ to the property line and to place up to 10 campers on a single lot. The property is described as part of Tract 24, Auditor’s Subdivision No. Ill (7'*’ Addition to Crystal Hills), Section 2 of Lida Township by Lake Crystal. A letter from Charles and Delia Zweber expressing concerns with the variance request was read for the record. A petition signed by 20 individuals opposing the granting of the variance request was read for the record. A petition signed by 17 individuals in favor of the variance request was read for the record. Also read for the record was a portion of the June 3, 1993 Board of Adjustment minutes which had an affect on the above referenced property. After consideration, motion was made by Cecil Femling, seconded by Mark Steuart and unanimously carried, to deny the variance as requested as no adequate hardship had been shown. Kevin J. and Debby K. Schmidt - Approved Kevin J and Debby K Schmidt, West Fargo, ND, requested a variance of 48’ from the required ordinary high water level setback of 100’ for the replacement of an existing structure with a new 28’ by 40’ double wide manufactured, home 52’ from the ordinary high water level. It should be noted that a deck in front of the existing structure will remaining in front of the proposed structure and that the proposed structure is 52’ from the ordinary high water level. The property is described as the southwest 65’ of Lot 11, Kozelnik’s Beach Second Addition, Big McDonald Lake in Edna Township. The audience was polled with no one speaking for or against the request. After consideration, motion was made by David Holmgren, seconded by Mark Steuart and unanimously carried to approve a variance of 48’ from the required ordinary high water level setback of 100’ for the replacement of an existing structure with a new 28’ by 40’ double wide manufactured home 52’ from the ordinary high water level with the condition that an existing storage shed located down by the water must be placed behind the building line in a location that does not require the granting of a variance for its location. It was noted that the granting of this variance with its condition provides the applicants with a reasonable use of their property. Hardship is a substandard lot of record. Scenic Point Resort - Approved Scenic Point Resort, Terry Colton, Clitherall, MN, requested a variance to build a 20’ by 22’ addition to the east side of cabin 1 and to the west side of cabins 2, 3, 4, 6, 7, 8, 9 and a variance to construct a 16’ by 30’ two story addition to the south side of cabin 5. The property is described as part of Government Lot 2, Section 13 of Clitherall Township by Lake Clitherall. The audience was polled with no one speaking for or against the request. After consideration, motion was made by Cecil Femling, seconded by David Holmgren and unanimously carried, to approve a variance to build a 20’ by 22” addition to the east side of cabin 1. After additional discussion and consideration, motion was made by David Holmgren, seconded by Cecil Femling and unanimously carried, to approve a variance to build a 20’ by 22’ addition to the west side of cabins 2, 3, 4, 6, 7, 8, and 9. It should be noted that the proposed additions to cabins 1,2, 3, 4, 6, 7, 8, and 9 are single story additions. After additional consideration, motion was made by Cecil Femling, seconded by David Holmgren and unanimously carried, with Leona Zimmerman voting no, to approve a variance to construct a 16’ by 30’ two story addition to the south side of cabin 5. The proposed additions are approximately 33 to 35’ from the ordinary high water level. April 1,1999 Page 8 Robert A, Kassekert - Approved Robert A Kassekert, Et Ai, Blaine, MN, requested a variance of 54’ from the required ordinary high water level setback of 100’ for the replacement of a flat roof on an existing structure, with a 5/12 pitched roof, 46’ from the ordinary high water level. The property is described as Lot 22, Rainbow Lodge, East Battle Lake in Girard Township. The audience was polled with no one speaking for or against the request. After consideration, motion was made by Cecil Femling, seconded by Mark Steuart and unanimously carried, to approve a variance of 54’ from the required ordinary high water level setback of 100’ for the replacement of a flat roof on an existing structure 46’ from the ordinary high water level. It was noted that the structure needs a new roof. Denis Olstad - Denied/Approved Denis Olstad, West Fargo, ND, requested a variance of 4’ from the required side lot line setback of 10’ for the construction of a 24’ by 36’ garage 6’ from the side lot line. The applicant’s proposal also calls for the placement of an existing 10’ by 12’ shed on the applicant’s back lot. The property is described as part of Government Lot 8, Section 28 of Dunn Township by Lake Lizzie. The audience was polled with no one speaking for or against the request. After consideration, motion was made by Mark Steuart, seconded by Leona Zimmerman, and unanimously carried, to deny a variance of 4’ from the required side lot line setback of 10’ for the construction of a 24’ by 36’ garage 6’ from the side lot line. It was noted that a reasonable use could be obtained without the granting of a variance. After additional discussion and consideration, motion was made by John Everts, seconded by Cecil Femling and unanimously carried, to allow the relocation of an existing 10’ by 12’ shed to the applicant’s back lot with the condition that the shed can be no closer than 6’ to the south lot line and no closer than 6’ to the east lot line. Placing the shed in this location will be an improvement over the current situation. Robert Mounts - Approved Robert Mounts, Elbow Lake, MN, requested a variance “to add a 12’ by 20’ second story addition to existing dwelling being approximately 33 feet from the ordinary high water mark (with a deck to be used as a fire escape, which will extend 18” closer to ordinary high water mark than existing structure). We will also replace rafters on existing structure. We would also like to add drainfield. Currently, there is a holding tank on property. This would be replaced with a 2-compartment septic tank if drainfield is allowed. Drainfield would be approximately 18 feet from dwelling, one foot from road right-of-way and side lot line.” The property is described as part of Government Lot 2, Section 14 of Eagle Lake Township by Eagle Lake. A letter from Orvis Dahlen indicating that he had no objections to the applicant’s request was read for the record. The audience was polled with John Bemis expressing concerns with the proposed location of the septic system. After consideration, motion was made by Cedi Femling, seconded by David Holmgren and carried with Leona Zimmerman abstaining, to approve a variance for the construction of a second story addition being no closer to the ordinary high water level than the existing structure with the condition that the sheds between the existing structure"^ and the lake must be removed. After additional consideration, motion was made by Cecil Femling, seconded by David Holmgren and carried with Leona Zimmerman abstaining, to approve the placement of the drain field one foot from the road right-of-way, 20’ from the dwelling and 10’ from the side lot line. May 6,1999 Page 2 John D. Sayres - Approved John D. Sayres, Webster, MN, requested a variance of 15’ from the required ordinary high water level setback of 75’ for the construction of a dwelling 60’ from the ordinary high water level (lake). The property is described as Lot 5, Steuart’s Beach, West Battle Lake in Girard Township. The audience was polled with no one speaking for or against the request. After consideration, motion was made by Cecil Femling, seconded by David Holmgren and unanimously carried, to allow the placement of a dwelling no closer to the ordinary high water level than what would be permitted by the sting line. The string line is to be applied from the vacant lot on the east to the occupied lot on the west. Wendy K. Schmitz - Denied Wendy K. Schmitz, Perham, MN, requested a variance of 37’ from the required ordinary high water level setback of 75’ for the construction of a 26’ 8” by 48’ structure 38’ from the ordinary high water level. The property is described as Lot 1, Art’s North Shore and Lot 1, Art’s North Shore Second Addition, Marion Lake in Rush Lake Township. The audience was polled with Wayne Leinen speaking to the location of the applicant’s property. After consideration, motion was made by Randall Mann, seconded by David Holmgren and unanimously carried, to deny the variance as requested and to approve the placement of a dwelling no closer to the ordinary high water level than what would be permitted by the sting line. Leon Loeffler-Denied/Approved Leon Loeffler, Underwood, MN, requested a variance of 35’ from the required ordinary high water level setback of 100’ for the construction of a storage shed 65’ from the ordinary high water level (lake) and a variance of 12’ from the required ordinary high water level setback of 100’ for the construction of a garage 88’ from the ordinary high water level (lake). The property is described as the West 100’ of the East 275’ of Sub Lot A of Government Lot 10, Section 1 of Sverdrup Township by East Lost Lake. The audience was polled with no one speaking for or against the request. After consideration, motion was made by Randall Mann, seconded by Cecil Femling and unanimously carried, to deny a variance of 35’ from the required ordinary high water level setback of 100’ for the construction/placement of a 8’ by 12’ storage shed 65’ from the ordinary high water level noting that other area is available for the storage shed that would not require a variance. After additional consideration and discussion, motion was made by Randall Mann, seconded by David Holmgren and unanimously carried, to approve a variance of 10’ from the required ordinary high water level setback of 100’ for the construction of a 28’ by 28’ garage 90’ from the ordinary high water level with the condition that the existing 10’ by 15’ shed must be removed and with the condition that no more than 25% of the total lot area can be covered with' imperious surface. It should be noted that placing the proposed garage in this location would line the garage up with the existing concrete pad. Glenn Anderson - Denied Glenn Anderson, Lake Park, MN, requested a variance “to allow lot to be considered a buildable lot” and a variance to “ailow 24’ height on utility structure.” The property is described as a tract on the lake in the Northwest corner of Government Lot 1 (adjacent to Lot 7, Meadow Wood Estates), Section 6 of Edna Township by Sybil Lake. The audience was polled with Steve Schur and Greg Schneider speaking against the applicant’s request. A letter from Wenzel Soland opposing the applicant’s request was read for the record. After discussion and consideration, motion was made by Randall Mann, seconded by Cecil Femling and carried with John Everts abstaining, to deny the variance as requested noting that the applicant’s hardship is a self imposed hardship. July 1,1999 Page 2 J. Richard Peterson Tst - Approved J Richard Peterson Tst., Northfield, MN, requested a variance of 12’ from the required road right-of-way setback of 20’ and a variance of T from the required 10' setback for the construction of a 24’ by 28’ garage 8’ from the road right-of-way and 3’ from a pumping station. The property is described as part of Reserve Block E Lying North of Lot 22, all of Lot 22, Block 7 and part of Government Lot 1, Sections 21 and 22 of Leaf Lake Township by West Leaf Lake. A letter from Floyd and Vi Haarstick and Herman and Arlene Deckert in favor of the applicant’s request was read for the record. The audience was polled with no one speaking for or against the request. After consideration, motion was made by Randall Mann, second by Joe Maske and unanimously carried, to approve a variance of 12’ from the required road right-of-way setback of 20’ and a variance of 7’ from the required structure setback of 10’ for the construction of a 24’ by 28’ garage 8’ from the road right-a-way (as requested in the application) and 3’ from the pumping station with the condition that an existing 14’ by 18’ storage shed must be removed by October 1, 1999 and with the condition that no more than 25% of the total lot area can be covered with imperious surface after the completion of the project. Hardship is the terrain of the applicant’s property. It was also noted that the road variance of 12’ was considered and granted because the road in question is a private road. James H. and Colleen A. Kroenke - Approved James H. and Colleen A. Kroenke, Dent, MN, requested a variance of 79’ from the required ordinary high water level setback of 100’ for the construction of a 25’ by 29’ addition to an existing structure 21 ’ from the ordinary high water level. The property is described as Lot 3 and 4, Kqzelnik's Beach, Big McDonald Lake in Edna Township. The audience was polled with no one speaking for or against the request. After consideration, motion was made by Randall Mann, second by David Holmgren and carried with Cecil Femling and Mark Steuart voting no, to approve the proposed addition being no closer to the ordinary high water level than the existing structure and being placed no closer to the ordinary high water level then what would be allowed by the string line with the condition that no water oriented accessory structures will be permit for this property in the future and with the condition that no building (site) permits can be issued until the small storage shed down by the lake is removed. Hardship is the terrain and ice ridge located to the north on the applicants’ property and a substandard lot of record. It was noted that the granting of the applicants’ request would provide the applicants with a reasonable use of their property. Marshall Gauer - Approved Marshall Gauer, Pelican Rapids, MN, requested a variance of 30’ and a variance of 53’ from the required side lot line setback of 65’ for the placement of a water oriented accessory structure 35’ from the east lot line and 12’ from the west lot line. The property is described as Lot 1, Dunneden Beach, Lake Lizzie in Dunn Township. The audience was polled with Stanley L. Zierke speaking in favor of the request. After consideration, motion was made by Cecil Femling, second by Randall Mann and unanimously carried, to approve a variance of 30’ and a variance of 53’ from the required side lot line setback of 65’ for the placement of a water oriented accessory structure 35’ from the east lot line and 12’ from the west lot line with the following conditions; 1) the proposed 12’ by 20’ water oriented accessory structure will not exceed 10’ in height, 2) will be no closer to the lot lines than the existing structure, and 3) will not exceed 20’ in width. It was noted that a storage shed has been removed and that the applicant’s proposal will not be ahead of the string line. July 1,1999 Page 5 Jert7 Condiff - Approved Jerry Condiff, Battle Lake, MN, requested a variance of 28.5’ from the required ordinary high water level setback of 75’ for a single story addition to an existing cabin 46.5’ from the ordinary high water level and a variance from the required ordinary high water level setback of 75' for a second story addition. The property is described as Lot 29, Raddahl Survey, West Battle Lake in Clitherall Township. The audience was polled with no one speaking for or against the request. After consideration, motion was made by Randall Mann, seconded by Cecil Femling and carried with Mark Steuart voting no and with John Everts abstaining, to approve the proposed first and second story development, as depicted on the applicant’s drawing, with the following conditions; 1) the existing storage shed down by the lake must be removed, 2) no water oriented accessory structures will be allowed in the future, 3) no more than 25% of the total lot area can be covered with impervious surface, and 4) the area south of the road cannot be used when determining the 25% calculation. It was noted that the proposed development would be no closer to the ordinary high water level than the existing structure. Linda Bowhall - Approved Linda Bowhall, Erhard, MN, requested a variance of 15’ from the required ordinary high water level setback of 100’ for the placement of a 24’ by 30’ utility structure 85’ from the ordinary high water level. The property is described as Lot 16, Block 1, Tonseth Heights, Tonseth Lake in Friberg Township. The audience was polled with no one speaking for or against the request. After consideration, motion was made by Randall Mann, to approve the variance as requested with the condition that the two existing 10’ by 10’ shed must be removed and with the condition that no water oriented accessory structures will be allowed in the future. This motion died for lack of a second. After additional discussion and ’ consideration, motion was made by David Holmgren, second by Joe Maske and unanimously carried to approve a variance of 15’ from the required ordinary high water level setback of 100’ for the placement of a 24’ by 30’ utility structure 85’ from the ordinary high water level with the following conditions: 1) the two existing 10’ by 10’ storage sheds must be removed and 2) no water oriented accessory structures will be allowed in the future. Hardship is the rough terrain of the applicant’s property making it difficult for development. It was also noted that this is the best location for the proposed structure and that placement of the structure in this location will conceal it from the view of the adjacent properties. James A. Gealow - Approved James A. Gealow, Wadena, MN, requested a variance of 10' from the required lot line setback of 10’, a variance of 7’ from the required structure setback of 10’ and a variance of 8’ from the required structure setback of 20’ for the placement of a drain field adjacent to the neighbor’s property line, for the placement of a septic tank 3’ from the applicant’s porch and for the placement of a drain field 12’ from the applicant’s porch. The property is described as Lots 7 and 8, Sundberg’s Point, Pickerel Lake in Maine Township. The audience was not polled as there was no one in attendance at the time of this hearing. After discussion and consideration, motion was made by Cecil Femling, second by David Holmgren and carried with Joe Maske abstaining, to approve a variance of 10’ from the required lot line setback of 10’ for the placement of a drain field adjacent to the neighbor’s lot line. Hardship is the lack of depth in the applicant’s lot and the wetlands located in the rear of the lot. It was also noted that a licensed installer prepared the plan for this system and it is the best location for the drain field. With no further business Chairman Everts declared the meeting adjourned at 10:15 p.m. /Co! Wayne Secretary July 8,1999 Page 3 Kerry and Linda Sadowsky - Denied Kerry and Linda Sadowsky, Fargo, ND, requested a variance for the construction of a three story dwelling having an overall height of 29’ and a variance of approximately 2’ from the required 3' vertical separation for the location of the finished floor of the basement approximately 1’ above the ordinary high water level. It should be noted that the basement is more than 6’ above ground over more than 50% of perimeter. The property is described as Lot 7, Outlet Beach Third Addition, Lake Lida in Lida Township. An unsigned letter questioning the purpose of the hearing after the structure has already been constructed was read for the record. The audience was polled with no one speaking for or against the request. After consideration, motion was made by Randall Mann, second by Joe Maske and unanimously carried, to deny the variance as requested and to support the previously granted variances as no adequate hardship had been shown and that the existing hardship is a self created hardship. After additional consideration, motion was made by Cecil Femling, second by David Holmgren and unanimously carried, to have the applicants bring the property into compliance by September 1, 1999. Leo and Geraldine Verhaagh - Modified variance approved with conditions. Leo and Geraldine Verhaagh, Maplewood, MN, requested a variance of 75’ from the required ordinary high water level setback of 100’ and a variance of 25’ from the required shore impact zone of 50’ for the location of a structure 25’ from the ordinary high water level. Also requesting a variance for the placement of a : sewage system 5’ from the neighbor’s property line. The property is flescribed as Lot 1, Kozelnik’s Beach First Addition, Big McDonald Lake in Edna Township. The audience was pollecTwith Greg Nash speaking for the request. Letters in support of the applicants’ request from the following were presented for the record; Ella Roosa Sauer, Earl Aschnewitz, Melvin Sanderson and Ted and Claris Tharadlson. After consideration, motion was made by Randall Mann, second by David Holmgren and unanimously carried, to deny the variance as request, but to allow development no closer than what would be permit by the string line test with the following conditions: 1) the boathouse must be removed before a site permit can be issued, 2) the two existing shed must be placed at least 10’ from the property line and behind the building line 3) no more than 25% of the total lot area can be covered with imperious surface, and 4) no variances will be granted for the location of a septic system. The variance as approved will provide the applicants with a reasonable use of their property. Jerry Ottesen - Denied Jerry Ottesen, Frazee, MN, requested a variance of 20’ from the required road right-of-way setback of 20’ for the placement of a 30’ by 40' storage structure 0’ from the road easement. The property is described as Lot 2, McDonald Heights, Little McDonald Lake in Edna Township. The audience was polled with Bill Norris, owner of Lot 3, speaking against the request. After consideration, motion was made by Mark Steuart, second by David Holmgren and unanimously carried, to deny the variance as requested as no adequate hardship had been shown and adequate space does exist for the placement of the proposed structure in a location that does not require a variance from the required 20’ road right-of-way setback. Barb Davis Peterson - Withdrawn Barb Davis Peterson, MN, request a variance of 8’ from the required side lot line setback of 10’ for the placement of a garage/storage-shed 2’ from the lot line. The placement of the garage in this location will maintain a 10’ separation from the drain field. The property is described as Lot 11, Block 1, Crystal - Lida Beaches, Lake Lida in Lida Township. Prior to the public hearing the applicant contacted the office and indicated that she would be withdrawing her request. VARIANCES- Aug 5 7ft from 20ft R/W, 4ft from 10ft Lot Line Remove shed 100ft from 200ft OHWL Relocate Icehouse/shed Oct 10 2ft from 10ft Lot Line Remove 2 shedsAug 12 60ft from 100ft OHWL Remove WOAS and Shed Dec 9 Tank- 6ft from 10ft RA/V Relocate Shed68ft from 200ft OHWL Remove WOAS or relocate 40ft or more from OHWL 35ft from 100ft OHWL Remove shed Place deck over existing WOAS 7ft from 40ft Lot Line 17ft from 20ft OHWL Remove existing stairway 118ft from 200ft OHWL Remove WOAS ;■ '■ 12ft from 100ft OHWL Remove WOAS Sept 2 Keep RCU’s and MH’s < 200ft from OHWL Properly relocate Outhouse 20ft from 20ft R/W Relocate WOAS 8ft from 20ft RAN Relocate WOAS 60ft from 100ft OHWL Remove WOAS Sept 9 25ft from 75ft OHWL Remove WOAS Oct 7 60ft from 100ft OHWL Relocate lakeside porch 35ft from 50ft Lot Line Remove ROD v->. RATWIK, ROSZAK & MALONEY, P.A. Attorneys at Law Paul C. Ratwik John M. Roszak Patricia A. Maloney* Terrence J. Foy* Stephen G. Andersen** Scott T. Anderson Kevin J. Rupp Jay T. Squires*t Ann R. Goering Nancy E. Blumstein* Sara J. Ruff Joseph J. Langel Michael J. Waldspurger* 300 Peavey Building 730 Second Avenue South Minneapolis, Minnesota 55402 Margaret A. Skelton Amy E. Mace Erin K. Munson Anne C. Becker Holly Lindquist Thomas (612)339-0060 Fax(612)339-0038 * Also admitted in Vt iseonsin •• Civil Trial Specialist Certified b> the Minnesota State Bar Association t Real Property Law Specialist Certified by the Minnesota State Bar Association January 5, 2000 received JAN 3 1 2000Via Fax and U.S. Mail COPYKim Elsen Claims Supervisor Meadovvbrook Insurance Group 9801 Dupont Avenue S. Suite 120 Bloomington, MN 55431 land 8 RESOURCE T IPv>>»* ^OORDIf^ATOR’s4^!L 2000RE; Kelly v. Otter Tail County Ou/PileNo. 1070-0425^ Your File No. 102GL9901335KE I \- V V Dear Ms. Elsen: : Thank you for assignment of the above matter for defense. This letter confirms that I will undertake to represent the interests of Otter Tail County in the above-referenced matter. I am in receipt of your fax concerning the Scheduling Notice setting the matter on for trial on March 28, 2000. I will be contacting David Hauser, the Otter Tail County Attorney, in the near future to discuss this matter. Please feel free to contact me if you have any questions or comments. Very truly yours. Terrence J. Foy TJF/sld David J. Hauser Karen Lundia i ^Candace Powers cc; RRM: #2185 May 10, 2001 Page 4 Mark Lee McCollough - Denied unless a letter authorizing the Board to table the request is received by May 18, 2001. Mark Lee McCollough, Wyoming, MN, requested a variance to expand our dwelling. We are in a cluster development, which only allows us to expand back, and up. We propose to add 10’ back and complete a 2"'' story to the structure. The entire project will be completed with the least intrusive means possible. The roof pitch will be kept to a maximum of 4/12 pitch. No part of the structure will be added toward the lake and the impact on the area should be nil. It should be noted that the proposed development would be less than 100’ from the lake. The property is described as part of Government Lot 2, Section 23 of Leaf Lake Township by East Leaf Lake. April 12, 2001 Meeting - The audience was polled with no one speaking for or against the request. After discussion and consideration, motion was made by David Holmgren, second by Rod.Boyer and unanimously carried, as per the applicant’s verbal request, to table the applicant’s variance hearing; uhtil the May 10, 2001 meeting of the'Board of Adjustment. May 10, 2001 Meeting - The applicant was not in attendance. After discussion and consideration, motion was made by Steve Schierer, second by Mark Steuart and carried with Joe Maske abstaining, to deny the variance as requested unless a letter is received by May 18, 2001 granting the Board permission to table the applicant’s request until the June 7, 2001 meeting. It was noted that this action is being taken due to applicant’s failure to appear at the public hearing. Sean & Cheryl Kelly - Withdrawn After discussion and by the general consent of the Board of Adjustment the review of this variance request as order by the District Court has been tabled per the applicant’s verbal request, to the May 10, 2001 meeting of the Board of Adjustment. On April 30, 2001 a letter from was received from Charles Krekelberg, Attorney, withdrawing the Sean and Cheryl Kelly variance application. The letter noted that Sean and Cheryl Kelly would voluntarily remove the dormer from the boathouse and replace the glass sliding doors with wooden doors. It was noted that this proposal had been discussed with both David Hauser and Bjll Kalar and had been found acceptable. After discussion and consideration, motion was made by Randall Mann, second by Steve Schierer and carried with Joe Maske abstaining, to accept the letter withdrawing the variance application as submitted by Mr. Krekelberg on ' behalf of Sean and Cheryl Kelly. Clarification - Dallas and Mary Flynn - Approved with condition on May 3, 2001 After discussion and consideration, a motion was made by Steve Schierer, second by David Holmgren and carried, with Joe Maske voting no, to amend the previously granted motion to read as follows: to approve a variance of 143’ from the. required ordinary high water level setback of 200’ for the placement of a 1985/1986 cabin 57’ from the ordinary high water level with the condition that no site permits can be issued for newly constructed structures on this property until the existing structure is either removed or placed in a location which complies with the requirements of the Shoreland Management Ordinance. It should be, noted that the applicant must obtain ah after the fact site permit for any structures which existed prior to the granting of the variance and for which a site permit would have been required had the site permit been obtained before the construction of the structure. KREKELBERG & SKONSENG, P.L.L.P. Attorneys at Law 10 North Broadway P.O. Box 353 Pelican Rapids, MN 56572 Tele; 218-863-6651 FAX: 218-863-6656 Charles A. Krekelberg Jeffrey D. Skonseng* Jason M. Hastings Associate 213 South Mill Fergus Falls. MN 56537 Tele: 218-739-4623 FAX: 218-739-0422* Also licensed in North Dakota REPLY TO: Fergus Falls W. Earl Williams Richard F. Nitz Retired April 30, 2001 Mr. David Hauser Otter Tail County Attorney Otter Tail County Courthouse 121 West Junius Avenue Fergus Falls, MN 56537 Re: The Matter of the Decision of the Otter Tail County Board of Adjustment to Deny a Variance to Sean and Cheryl Kelly Dear Mr. Hauser: This letter is to confirm our telephone conference on today’s date regarding the above matter. As I indicated to you in our conversation, my clients, Sean and Cheryl Kelly, will voluntarily remove the dormer from the boathouse and replace the glass sliding doors with wooden doors. You indicated you had discussed that with Mr. Bill Kaler and that it would be acceptable. Based on the above, my clients withdraw their application for a variance. Sincerely yours. KREKEZBERG <^SKONSENG Ji.L.L.P. Charleys A. Krekelberg AK:lw Mr. Bill Kaler Mr. John Everts, Chairman of the Otter Tail County Board of Adjustment Mr. & Mrs. Sean Kelly cc: April 12, 2001 Page 5 Michael Daddario - Approved with modifications. Michael Daddario, Newport, MN, requested a variance of 139’ from the required ordinary high water level setback of 200’ for the placement of a recreational camper 61 ’ from the ordinary high water level and a variance of 139’ from the required ordinary high water level setback of 200’ for the placement, in the future, of a 30’by 32’dwelling 61’from the ordinary high water level. It should be noted that the recreational camper would be removed when the proposed dwelling is built. The property is described as Lot C, Lillis Survey Plat of Government Lot 2, Section 16 of Dead Lake Township by Dead Lake; April 5, 2001 meeting - The audience was polled with Todd Baribeau speaking for the applicant’s request. R. Kristian Svingen, Attorney, appeared with and represented the applicant at the public hearing^ After discussion and consideration, motion was made by Steve Schierer, second by Cecil Femling, to allow a camper unit to be place on the site for more than 22 days assuming it meets all setback requirements. After additional consideration, the previous motion was withdrawn and a motion was offered by David Holmgren, second by Cecil Femling and unanimously carried, to table the applicant’s request until the April 12, 2001 meeting, which should allow the Land and Resource Department an opportunity to review the site and to determine the location of the top of the bluff.-: April 12, 2001 meeting - R. Kristian Svingen, Attorney, appeared with and represented the applicant at the public hearing. The audience was again polled with Ernie West, Michael Stinar and Duane Bohne addressing the application and providing information pertinent to the location of the lot lines and road right of way. After discussion and consideration, motion was made by Steve Schierer, second by Rod Boyer and unanimously carried, to approve a variance of 123’ from the required ordinary high water level setback of 200’ and a variance of 23’ from the required shore impact zone setback of 100’ for the placement of a structure 77’ from the ordinary high water level, 30’ from the top of the bluff, 20’ from the road right of way and at least 10’ from the side lot lines. Hardship is a substandard lot of record. 5 Kenneth James and Linda Koester - Clarification of December 14, 2000. After discussion and consideration, motion was made by Randall Mann, second by Steve Schierer and unanimously carried, for the purposes of clarifying the minutes of the December 14, 2000 meeting, to acknowledge for the records that the Board of Adjustment approved the applicants’ proposed location (79’ from the ordinary high water level) even though the proposed location is different than the setback noted in the minutes of December 14, 2000 (85’ from the ordinary high water level). It was noted that the applicants have placed the 40’ by 8.5’ Park Model unit as far back against the hill as they can. Review and Reconsideration - Sean & Cheryl Kelly - Tabled. After discussion and by the general consent of the Board of Adjustment the review of this variance request as order by the District Court has been tabled per the applicant’s verbal request, to the May 10, 2001 meeting of the Board of Adjustment. With no further business. Chairman Mann declared the meeting adjourned at 9:56 p.m. uJ.^JjLX/r\ i S\An, S(Wayne S Secretary OTTER TAIL COUNTY OTTER TAIL COUNTY COURTHOUSE FERGUS FALLS, MN 56537 (218) 739-2271, EXT. 240 OFFICE OF THE COUNTY AUDITOR 121 JUNIUS AVE W. - Room 220 E-Mail wstein@co.ottertail.mn.us X' ,'March 15, 2001 Sean W. and Cheryl A. Kelly PO Box 944 Lisbon, ND 58054 Dear Mr. and Mrs. Kelly, Please be advised that the Otter Tail County Board of Adjustment has scheduled their next meeting for Thursday, April 12, 200T, in the Otter Tail County Commissioners’ Room of the Otter Tail County Courthouse located at 121 W. Junius Ave., Fergus Falls, MN. Your variance request, which was acted upon at the September 9, 1999 Board of Adjustment meeting has been scheduled for review and reconsideration at the April 12, 2001, meeting of the Board of Adjustment. This is to comply with an order of. the District Court remanding this matter back to the Board of Adjustment for further proceedings; I have enclosed a copy of the April 12, 2001, agenda for your information and reference. If the date and time of this meeting is not convenient for you, please notify the County Auditor’s office in writing prior to the April 12, 2001, meeting and I will have your variance request tabled until the next regularly scheduled meeting of the Board of Adjustment. If you should have any questions please feel free to contact: me. Thank you very, much. Sincerely, Wayne Stein County Auditor • ■> OTTER TAIL COUNTY OTTER TAIL COUNTY COURTHOUSE ' FERGUS FALLS, MN 56537 (218) 739-2271, EXT. 240 OFFICE OF THE COUNTY AUDITOR 121 JUNIUS AVE W. - Room 220 E-Mail wstein@co.ottertail.mn.us April 13, 2001 Sean W. and Cheryl A. Kelly PO Box 944 Lisbon, ND 58054 Dear Mr. and Mrs. Kelly, ■Vv Please be advised that the Otter Tail County Board of Adjustment has scheduled a meeting for Thursday, May 10, 2001, in the Otter Tail County Commissioners’ Room of the Otter Tail County Courthouse located at 121 W. Junius Ave., Fergus Falls, MN. Your variance request, which was acted upon at the September 9, 1999 Board of Adjustment meeting has been scheduled for review and reconsideration at the May 10, 2001, meeting of the Board of Adjustment. This is to comply with an order of the District Court remanding this matter back to the Board of Adjustment for further proceedings. I have enclosed a copy of the May 10, 2001, agenda for your information and reference. If the date and time of this meeting is not convenient for you, please notify the County Auditor’s office in writing prior to the May 10, 2001, meeting and I will have your variance request tabled until the next regularly scheduled meeting of the Board of Adjustment. If you should have any questions please feel free to contact me. Thahk you very much. - Sincerely, Wayne Stein County Auditor Notice of Hearing for Variance Otter Tail.Couhty Courthouse 121 West Junius Ave. Fergus Faiis, MN 56537 (218) 739-2271 Ext. 240 Appiicant must be present at the scheduled hearing. To Whom It May Concern: Sean W. and Cheryl A. Kelly PO Box 944 Lisbon, ND 58054 has made application to the Otter Tail County Board of Adjustment for a variance as per requirements of the Otter Taii County Shoreland Management Ordinance and/or the Subdivision Controls Ordinance. The Otter Tail County Board of Adjustment will assenrible for this hearing on Thursday, September 9,1999, at 8:30 p.m., in the Commissioners’ Room of the Otter Tail County Courthouse, Fergus Falls, MN. (Please use the west Law Enforcement entrance.) Individuals requiring special accommodations should contact the County Auditor’s office prior to the date of the public hearing. . -The property^concerned in the application is legally described as the northwest 30’ of Lot 8 and all of Lot 9, Jonelsa Beach, Fire# 1009 Section 28, Township 134, Range 40 - Township Name - Amor Lake No. 56-242,.Lake Name - Otter Tail, Class - GD ■i •The variance requested is: the following: Boathouse - The original side door (main entrance) of the boathouse is 4’ tall. It is a hazard for anyone entering or exiting and we have already had some serious head bruises. We would like to build small dormer above existing door to allow for a standard height door to building. We are also re-roofing and re-siding: Main Cabin - The roof is leaking by the chimney because of roof valley, which runs into chimney. The valley needs to be slightly changed so runoff runs away from the stone chimney. This change will not be structurally higher than the existing roof. Tof^djustmeht SecretaryDate: August 13,1999 Board OTTER TAIL COUNTY Fergus Falls, Minnesota State of Minnesota ) )SS County of Otter Tail) I, Wayne Stein, Secretary for the Board of Adjustment for Otter Tail County, Minnesota, do hereby certify that on the 16th, day of August, 1999 the attached Notice of Hearing for Variance was duly served upon the individuals listed below and/or included in the attachment: Sean W. and Cheryl A. Kelly, PO Box 944, Lisbon, ND 58054 Jane Baumgartner, Amor Twp Clerk, RR 2 Box 138, Battle Lake, MN 56515 Otter Tail Lake Assoc., PO Box 21, Battle Lake, MN 56515 Otter Tail County Cola, % John Matteson, Rt 2 Box 4OW, Battle Lake, MN 56515 Richard West, Otter Tail County Highway Engineer, Courthouse, Fergus Falls, MN 56537 Terry Lejcher, DNR 1221 1/2 E. Fir Ave., Fergus Falls, MN 56537 DNR Regional Administrator, 2115 Birchinont Beach Rd. NE, Bemidji, MN 56601 Town Clerk Board of Adjustment: David H. Holmgren, RR 1 Box 188B, Henning, MN 56551 John Everts, RR 2 Box 434, Battle Lake, MN 56515-9492 Cecil B. Femling, 13 6th St. NE, Pelican Rapids, MN 56572 Randall Mann, 532 N. Ann St., Fergus Falls, MN 56537 Frank Lachowitzer, RR 1 Box 249, Perham, MN 56573 Mark Steuart, RR 1 Box 82, Richville, MN 56576 by placing a true and correct copy thereof in a sealed envelope, postage prepaid; and depositing the same in the United States Mail at Fergus Falls, MN, property addressed to each of the individuals listed above and/or listed in the attachment. Dated: August 16th, 1999 Wayne Stein, Secretary Otter Tail County Board of Adjustment By: Vi Manderud RDBER'I" CllRISTEMSENH ■ DOHALD L L LiOROrtlY L MALMr RR 2 BOK 323 629 MAPLE AVE W FERGUS FALLS, HR 56537-1941 BATTLE lake, MR 56515-9478 JERRY G L JESSIE A HEYEM PAMELA A Sr. JANE K POLITISKI 616 ALCOTT AVE W FERGUS FALLS, MN 56537-260^3 2601 LAKEVIEW DR FERGUS FALLS, MM 56537-3928 OLSON LAKE HOME PRTNRSHP ELIZABETH J GEURTS TRUSTEE RR 2 BOK 254A BATTLE LAKE, MM 56515-9458 5539 171ST AVE SE CHRISTINE, MD 58015-942O GORDON P a. MARILYN J BAKKEN EMBERT L HELEN LARSON 515 LAKESIDE DR W FERGUS FALLS, MN 56537-2113 829 LINDEN ST W FERGUS FALLS, MN 56537-1838 WALLACE F & DONNA SALMONSON NORMAN a. JEAN BAKKEN 412 EVERETT AVE E FERGUS FALLS, MN 56537-3516 5908 104TH ST W BLOOMINGTON, MN 55438-1824 JOHN K SEVERN ET AL JOHN a NORMA SHELSTAD 7802 BRIDGEWELL RUN SE HUNTSVILLE, AL 35302-3902 PO BOK 35 KENYON, MN 55946-0035 J ELAINE a N KAY ANDREWS RONALD a SANDRA ALBERTSON PO BOX 004 FOKHOME, MN 56543-0004 RR 2 BOX 14 BRECKENRIDGE, MN 56520-9504 HELEN ANDERSON FORREST N DAHL RR 2 BOX' 252 BATTLE LAKE, MN 56515-9458 912 SUMMIT AVE W FERGUS FALLS, MN 56537-1044 '• 3. TRUMAN J a FLORENCE THEURER STANLEY E & MARILYN M SIREK RR 2 BOK 251 BATTLE LAKE, MN S50 2NI) ST N WAHPETON, ND 58075 56515-9458 SEAN W a CHERYL A KELLY . VPO BOK 944 L,ISBON, ND 58054-0944 > OTTER TAIL COUNTY TG670RACS Tax System 08/16/1999 08:51:17 Freeform Image Print ******************************************************************************* COVERPAGE *C N E L S 0 N C N E L S 0 N C N E L S 0 N C N E L S 0 N**************************************'***************************************** ★ ★ ★* * ★ * * -k* * * it * * it * * it it it it it it *it it it it it it Report Selection: Freeform Type : U Freeform Number: 61 LABELS Length: 6 Width: 35 Multiples: 1 Paper: LBL Select Model: 95 Sort Model: 127 Run Time Changes: N Summarize Keys: N Use Current Taxpayer: Y SELECT MODEL 095 SELECT UP TO 300 PARCELS PAYABLE YEAR ROLL TYPES PARCELS 2000ALLR 02000280222000 R 02000990388000 R 02000990388002 R 02000990389000 R 02000990390000 R 02000990391000 R 02000990392000 R 02000990393000 R 02000990394000 R 02000990395000 R 02000990397000 R 02000990398000 R 02000990399000 R 02000990400000 R 02000990401000 R 02000990402000 R 02000990403000 R 02000990404000 R 02000990435000 SORT MODEL 127 LAND&RESOURCE SORT AS IS Run Instructions: Jobq Banner L CNELSON Copies Form Printer Hold Space 01 PI Y S LPI Lines CPI 6 066 10 4 September 9, 1999 Page 6 Sean W. and Cheryl A. Kelly - Approved/Denied Sean W and Cheryl A. Kelly, Lisbon, ND, requested the following: Boathouse - The original side door (main entrance) of the boathouse is 4' tall. It is a hazard for anyone entering or exiting and we have already had some serious head bruises. We would like to build small dormer above existing door to allow for a standard height door to building. We are also re-roofing and re-siding; Main Cabin - The roof is leaking by the chimney because of roof valley, which runs into chimney. The valley needs to be slightly changed so runoff runs away from the stone chimney. This change will not be structurally higher than the existing roof. The property is described as the northwest 30’ of Lot 8 and all of Lot 9, Jonelsa Beach, Otter Tail Lake in Amor Township. The audience was polled with no one speaking for or against the request. After consideration, motion was made by Randall Mann, second by Cecil Femling and unanimously carried, to require that the applicants remove the boathouse by May 1, 2000, except for the cement bulkhead, and to allow the proposed maintenance to be completed on the main structure. Cheryl Jo Zosel - Approved with conditions. Cheryl Jo Zosel, Et. Al., Battle Lake, MN, requested a variance to subdivide existing house with less than required square footage from existing campground. Close camp ground and removes existing mobile homes and cabins and subdivides into 2 lots. Also request a variance to build 50’ from Blanche Creek which is a variance of 50’ from the required 100’ setback and a 10’ variance from the required 75’ setback from Otter Tail Lake. The property is described as Lots 1 through 8 and Lot 19, Prescher’s Corrected Plat of a portion of Midway Park and part of Government Lot 3, Section 31 of Otter Tail Township by Otter Tail Lake and Blanche Creek. Clem Hendrickson, Surveyor, appeared along with the applicants at the public hearing. The audience was polled with no one speaking for or against the request. After consideration, motion was made by Randall Mann, second by David Holmgren and unanimously carried, to approve the creation pf three lots with the following conditions: 1. the lot containing no lake frontage must contain approximately 20,000 square feet of area, 2. the structure on the south lot must be setback 75’ from the ordinary high water level of the lake and at least 75’ from the ordinary high water level of the creek, 3. the nineteen trailer units must be removed as soon as possible after the granting of this request, 4. the cabin on the north lot must be removed by January 1, 2000 or if a site permit is to be issued before that date the cabin must be removed before the permit can be issued, 5. the cabin and the boathouse on the south lot must be removed by September 1, 2000 or if a site permit is to be issued before that date the cabin and the boathouse must be removed before the permit can be issued, and 6. a registered surveyor’s drawing identifying clearly the lot line locations must be provided at the time of conveyance. The granting of this variance will result in a major improvement over the existing development. OTTER TAIL COUNTY ATTORNEY COURTHOUSE FERGUS FALLS, MINNESOTA 56537 DAVID J. HAUSER (218)739-2271 FAX (218)739-4630 ASSISTANTS BARBARA R. HANSON KAREN A. COOPER KURT A. MORTENSON MICHELLE M. ELDIEN JENNIFER L. LESSINGER INVESTIGATOR J. ALLAN ANDERSON DEC Z 1939December 1,1999 %‘e^ H. Morrison Kershner, Esq. 110 N. Mill Fergus Falls, MN 56537 Re: Kelly variance Dear Mr. Kershner: The Office of Land and Resource Management has reviewed the variance that was issued and the Kelly property. There are many existing non-conformities on the property including the prohibited use of multiple dwellings on a lot. A variance was needed to alter the main cabin, and that was granted. However, it was granted on the condition that another existing non­ conformity, the boat house, be removed. This appears to be an appropriate action by the Board of Adjustment. However, if the Kellys’ concern is that they are required to leave the cement bulkhead of the boathouse in place, I do not believe that is the case. They have a deadline of May 1, 2000, to remove the rest of the boathouse. The Board of Adjustment was just pointing out to the Kellys that they may want to leave the bulkhead in place to avoid erosion. Another alternative would be to remove the bulkhead, fill the area and use proper stabilization methods. The Office of Land and Resource Management is willing to talk to the Kellys about alternatives for stabilization. Please let me know what the Kellys plan to do. VetytfuTyywirs, ■ / '///// David J. H^ser DJH/mk Mr. William Kalarcc: BILL KALAR, LAND & RESOURCE MANAGEMENT OTTER TAIL COUNTY ATTORNEY 121 WEST JUNIUS, SUITE 320 FERGUS FALLS, MINNESOTA 56537 DAVID J. HAUSER ASSISTANTS BARBARA R. HANSON KAREN A. COOPER KURT A. MORTENSON MICHELLE M. ELDIEN JENNIFER L. LESSINGER INVESTIGATOR J. ALLAN ANDERSON (218)739-2271 FAX (218)739-4630 April 14,2000 RECEIVED APR 1 4 ?000 Terrence J. Foy, Esq. 300 Peavey Building 730 Second Avenue S. Minneapolis, MN 55402 LAND & RESOURCE Re: Sean W. Kelly and Cheryl A. Kelly Variance Appeal Your File No. 1070-0425 Dear Mr. Foy: Please find enclosed a copy of the transcript that you had sent us. Notations have been made indicating the names of the persons who were speaking and a few other corrections. Bill Kalar and Wayne Stein are the two who listened to the tape and made the notations. Very truly yours. David J. Hauser DJH/mk Enc. Mr. William Kalarcc: Kelly, Lisbon, North Dakota, northwest thirty feet of lot eight and all block nine, Jonelsa Beach, section 28 Amor Township on Ottertail Lake, general development lake. The variance requested is the following: boathouse, the original side door main entrance of the boathouse is four feet tall. It is a hazard for anyone entering or exiting and we have already had some serious head bruises. We would like to build a small dormer above the existing door to allow for a standard height door to the building. We are also reroofing and re-siding. The main cabin, the roof is leaking by the chimney because the roof valley which runs into the chimney. The valley needs to be slightly changed so run off runs away from the stone chimney. This change will not be structurally higher than the existing roof. Okay, on the last page we have the scale drawing of the lot of the existing building. Anything else that you would like to add4o^c facts? pfir rwi TjniC \ I guess when we did it we didn’t know there would be ... we thought we were just roofing. We weren’t aware of the variance to be applied for. Sol., guess in a sense we were thinking we were doing the right thing but apparently with this roof, you know, the dormer part, we were made aware that we should come for the variance. So I guess we were just hoping that, that’s something that’s within the, that’s within the rules. We weren’t trying to get away with anything, we were just gonna’ ... the roof was shot and anyway along with it we were going to raise it so since the doorway was so low we just thought we would put the dormer on while we were at it. As far as the roof by the chimney, that’s been leaking through and our carpenter was fixing it he said he’d have to do this, and why we had to come to this variance here, he brought that issue up too, we were just fixing the roof at the point. Ali^ Okay, well, we’11-seek to deal with these one at a time here, both issues. We have some pictures of the boathouse, if you want to look at them. I guess that was something that... [ I was therej Jhe ordinance tells us that anytime a nonconforming use building like this boathouse is improved, modified, remodeled, it exceeds fifty percent of its value then it is, that building should come into compliance and of course for a building like that to come into compliance, it would have to be removed. That’s actually what the ordinance would be on that part of it. Board members, any questions or comments? J Well, without being the bad guy, but I suppose probably you are aware, the rules now state that you should have only one residence. Did you know that? fj |Qp.r)c;"t ,-i c 1’''! G *■- \G ,'J (■) When we bought the place we, no, as far as, no we didn’t. I mean ... fnft, Well, that’s what the present rule is, just one. As I look at it and I was in fact there, the one white stucco building, and you have it on the diagram. The white stucco building looks like a guesthouse. And there was one on the other side. I don’t remember the construction. But anyway, it’s a log cabin. Alright, now, the difficult situation which you are putting us in is this: if we would grant any kind of variance such as your boathouse and/or fixing your roof or anything else, really then what we should do is to then bring the rest of the situations in to compliance. Have I said that kind of correctly? So, here is the problem we got. I know Ma’am. I’ve been looking forward to going to the ... gv/ g ^ The boathouse? I just think it should be removed entirely. That was my observation. Another one that I was getting concerned about,:! didn’t run the-fii^ on this, but, it appears that the lot is either exceeding or getting very close to more than 25% coverage with imperi^ious surfaces (inaudible) talking about that. So if we do allow substandard nonconforrhing uses to continue then the Board is in violation of that as well, so ... In this particular case, is the dormer adding roof to it? Is that what you’re saying? Is it adding squ^e footage to the roof? No. The accumulated improvements on this building I believe we saw a patio door, new siding, new roofing, this dormer, I think with the judgment of the Board here that that would be exceeding fifty percent of the valiie of that original structure at which case, it is considered a new building at that point and it would require a permit, a building permit, and would also require a variance in order to put it there because that’s what the Board is ■Sostruggling with. What would you have us.do to I mean ... Just to keep the building. I mean, because we made the mistake offixing the building. The door that’s there blew off, so we put another door on, that’s basically what happened on the front door. They were swinging wood doors that blew off and we put another door in that opening. We could have put another wood door I guess, maybe put a nice wood door in it. But I guess then that would have been a hazard to someone I would imagine. You know. I’m not trying to argue about it, but wondering what would bring, you know, outside of letting it collapse on itself, what would be legal? $:. \lCLC'\What would be acceptable? I guess I’d defer to David, our... 2 »-M » U/(; t ^ ■ ’i i *' » t We have a boathouse that is right on the property line, right in the water and the modification to it we believe has exceeded 50% of its valuation in which case it would be looked upon as a new dwelling. ir f: -r *i c ^ i'^ TwC- rt C>‘f ^ ^ r. cv if f' \S k<j^/:ocoWell the thing that I would wonder then, any building if you painted it if it n was an old cottage there, and you thought that it was only worth $500, since I’ve been there it’s maybe worth $1,000. - r-r. 'Tii:C.«v[•!rt (•'CfT ■^ L \UiL^ Actually, if it gets into a discussion about who determines the valuation it’s my understanding that the County Assessor would evaluate that building prior to its remodeling or change, alteration, and if that alteration would exceed that, then its to be considered a new dwelling, or a new structure. See, David, in addition to that we’ve got more in excess of 25%, we also have three ... fTi "^ut that’s grandfathered in. _This has been there for years and years (inaudible) foil /Y\P- ■ " I understand that, we aren’t real all bad guys. We are trying to find a way out of this. Go ahead. Okay. That’s grandfathered in, but whenever they grant a variance on a lot where there are other substandards preexisting it is the opportunity to say yeah, we’ll grant you this, but you’ve got to get rid of the others. But generally, they won’t grant the variance and allow you to have these other substandards. Because you’re asking to have it more and further substandard. TO Q,L Continue or to maintain.^ rrtJ. /<'£iiv rrV ; The County’s thinking, if I can speak for the County, it’s our position, the County’s position, that once a building is obsolete, worn out, closed down, bums down at that time it’s going to be replaced, then it will be brought into conformity with the ordinance. icifTui This is a strong solid old building. If you look at it, I would probably live in that one better than some cottages I see around the lake.me, KCll^ 3 I saw it, I’ll argue that but that’s not the point here tonight. Board members, any other questions that you had, comments? Observations? Is there anybody out in the audience who wishes to speak for or against this? No communications? Gentlemen, what are your wishes? Well, Lthink, just from my standpoint, a person is entitled, I would think, to repair the roof of his main cabin, no question about it. e-J I should have clarified that, we’re going to deal with these one at a time. Right, but I’m thinking together the way I would go along with it is to remove the boathouse entirely. Pretty harsh, but that’s what I think. But, then in lieu of that] he would be allowed to fix the main cabin and I don’t know how you address the 25% and the two extta things. I don’t know how you get around that, but it seems logical that the poor guy should be able to fix his main cabin, but he’s got two other bad things and maybe you . can compromise ahd say if you remove the boathouse you’ll go along with it, I don’t know. Well, I still don’t maybe understand. If this wasn’t brought up to your attention that would have been there for another hundred years. Is that what you’re telling me? If these buildings weren’t (inaudible), we wouldn’t have come here for a permit or to (inaudible), any of these things. We wouldn’t have been.. nobody would have mentioned that we have two other Jobs on the place. ;V.' Both were preexisting and were grandfathered in. Q.'lvtO But you need to get a permit in order to. Right. But what I’m saying is why then on this particular case that we got, why should the other ones even be brought into question? We were grandfathered in. Because we can\ (inaudible) You should be able to go back to the existing ones that we’re not going to do anything on. Well,-it^-gaHist the law. ■{Y\ &. \4.ClL"f PI A. That is the law. 4 We can and so we do. Understand, you’re coming here asking to be granted something beyond what the ordinance allows. And you’re doing that on a lot which already has several things that we don’t allow and so we’re gonna’ say no we’re not going to allow you to have that but we might say we’ll allow you to have it if you clean up those other things. This is an opportunity for us to bring your property into conformance and you can say no, I don’t want to do that so I don’t want the variance. DfWiO i-iAuiM In which case you would have to remove the boathouse from the property. I ( If we]|if you need a variance (inaudible)^ By bringing this up we just told you guys that he gave us the opportunity to take the boathouse out of there.P\£-. 'lifu-M Yeah. Okay. That’s if I wouldn’t have done anything and just left it like it was, we wouldn’t have had this discussion at all. Well, it would have fallen down in time. Yeah, well then I’d have to get a permit to take it off or something. That would have happened is all I’m getting at. I just want to be clear on that because that’s, gee, I guess if I would have known that I definitely wouldn’t, we wouldn’t have done an)dhing to the house. I guess we left the thing be there and I wouldn’t have, you know I just would have let it sit there and let it be an eyesore or whatever. I mean it was ... me, What is the rule for reroofing? Are we allowed to reroof? We were under the understanding that we could... ':jei4e That was considered maintenance, isn’t it? That was maintenance. But when you’re changing roof (inaudible), you’re altering... rrid.T xi. Kcux Okay. Okay. Basically what we were going to do was just roof the thing, then would we have needed anything to roof the place? 5 Ay. ^Probably (inaudible)Q fiV' o Okay, that’s what we were gonna’ do and why we had to rope off (inaudible), I mean that’s, it is (inaudible) fA(i ‘ Okay, so can we, can we put this structure back to Original state? Yeah. All we have, if you look at that all there was is some chip workdiere that run across dr-ill-a-hole. wu('e<: Ddiu co h . KClL'-( . {<^01 Will it be easy to put it back? All you have to do is put some chip work out there and reroof it. Because then it’s back to the original state. We’re not gonna’ put siding on or anything else? Well I think you did and I would maybe (inaudible) I think, maybe I (inaudible) <5 V y m . (Y\d. (9(<!VU5 (inaudible) 010'^pst-t TriC ^ Now is to replace the doors that had blown off in a windstorm. yij H ^ p\i, (inaudible) LOkay. Are we ready to move here. Board members? f'''i.,y<3 1What’s the motion? We really don’t have one, I guess. I can’t think of one. We’re getting ready to formulate one. Anybody have some ideas here? I’m going to propose that we address both situations because I think they’re connected in my (inaudible). To remove the boathouse entirely but because of that we will go ahead and allow the maintenance or re-roofing of the main cabin as referred to and I guess we shut our eyes to the three residences and the 25% violation. ft.^0-1 r have a motion. Do I hear a second? P.' C^ciL Yeah. 6 .! Got a motion second for discussion? The only thing I would like to say is that could they leave that cement boat head in there? Because to remove that, it’s not going to deteriorate anymore. And the shoreline is already (inaudible) 6mBao , Let me explain to these people why we really and truly, you aren’t being picked on because generally speaking... We don’t feel we’re being picked on, we’re just not, we’re just in shock right now.ms, I don’t blame you, but everybody that has come in to repair or adjust or fix up boathouses has been very much turned down. That’s poor English, not very much, but, the point being that it does in fact restrict view of the neighbors. You may not be opposed to looking at the backend of a boathouse. But ifl lived next door to you and looked at your boathouse, I’d get... We have that all along our shoreline now and they all have improved their boathouses. I know they do and this guy that was here a little bit before froni Little McDonald Lake or somethin’ showed us pictures of his neighbors’ shacks up there. It was very bad. So that’s the reason. I’m sorry. Our neighbors have boathouses right there that they have worked on by, you know, probably. I’m not going to get them in trouble, I’m sure they didn’t come with, they were done probably in the last few years and they weren’t (inaudible) they didn’t come (-inaudible) 'nm , C'JtATS Their day may come here, we’ll see. The only thing that I have to clarify for myself because we went into this buying this property in good faith this was all legal-what we have (inaudible). Now (inaudible) the other two cabins and whatever, they were there. We didn’t know that they were not supposed to be there so they were grandfathered in. iCCLLi That’s correct. Now, if we make any kind of appearance to you guys, you could bring that issueup. 7 If it requires a variance, c: i L_ t.1 -1 c I think Mr, Mann has recognized that. Plti.Yeah. fidii- cG" Li .VC And said let’s overlook it at this time. Yeah. But I mean, what I’m saying is next time if we wanted to do anything, like say if that other cabin the wind blew and knocked off, you know, part of a wall there, irv'iA. And we wanted to fix that. And we came here for that variance, would that, Imean, you’re saying... (inaudible) Anything thalwe require a variance (inaudible) they’re saying bring everything else into compliance. But now fixing, the reason this was on a variance is because where it was located, then? Is that? That’s what I think I don’t know. ^ ■ \^t LUI (Inaudible) But if we have damage to any of the other buildings and wanted to fix it because of a storm or whatever, we wouldn’t have to come... (Inaudible) Now that’s a fifty percent? Yeah. And that would be over an accumulation of time, too, now that wouldn’t be, you know, ten percent this year, ten percent next year, until the whole thing is, exceeds .that. That would be the total, the total repairs, remodeling, or alterations thaf would exceed fifty percent and is considered a new building, and you need a building permit. Okay. I have a motion and a second. How are we doing here? Any further discussion? Carrying on, all in favor of (inaudible) say “I”. “I”. Opposed, same sign. c ■ 8 Should have asked you how long you owned this. You said you just bought it. Well, it’s our fourth Summer.i/eLu'l Fourth Summer, yeah. Removal (inaudible). We should have a removal day on here, too. Gentlemen. . f«■..CA^ur/C November 1. if tf>wT i?/" November 1. Can you get-aneSiertme by November? No. When can he get another one? I don’t, we can. I’m not.. . what’s today, September 10? Gotta’ find somebody to do it. When would you suggest it? I would say next Spring, sometime next Spring if, we’ll put it out next year. I don’t have any problem with that. I don’t have any problem with that at all. May 1? Yep. r i May 1, 199-, the year 2000. So I’ll be gone on-fta-way to (inaudible) (Inaudible) (Multiple people speaking.) Are,we going to hold up the re-roof on the house? No. That can be done. That can be done.■t: Nope. We don’t want the poor lady to have water. 9 KCll-'Ims'I’m gonna’ have a stroke. No. Not here. Wait till you get outside. This is, oh ... IV move Okay, I have-ar(inaudtble) here. Shensi, Joel, (inaudible) and others. Battle Lake. They’re on one throu^h.eight and lot nineteen (inaudible) public portion oO/Iidway Park and part of^vemment lot three. Section thirty-one on Ot(ertail, Ottertail Township onOtt^ail Lake and Blanche Creek, the v^i^mce requested is a variance to subdivfdqexisting house with less than/equired square footage from existing campg^qd. Close campground aim remove existing mobile homes and cabins and suWivide into two loty^lso request a variance to build fifty feet from Blanche Greek whreh^'a variance of fifty feet from required one hundred foot set babk^^d ^fen foot variance from the requir-ed-severity^fi^fbot set backet here we have the drawing of the prope Everybody who’s out there underhand thi^ Ottertait-baker~©n-the-tet-page— 'involved in the requested split. Yep. Okay. Is there anything'^else you folks want to add at this time? Other than the faenhat there would be now two very nice homes there instead of nineteen trailer parks or trailers and two cabins tharqre too close to the lake and the creek now. f \ So it lool^ like we would have on the/south lot here 267 feet of shoreline and 215/on the ... [End of tape] RR.M: 4647/cmp 10 RATWIK, ROSZAK & MALONEY, P.A. Attorneys at Law Paul C. Ratwik John M. Roszak Patricia A. Maloney* Terrence J. Foy* Stephen G. Andersen** Scott T. Anderson Kevin J. Rupp Jay T. Squires*! Ann R. Goering Nancy E. Blumstein* Sara J. Ruff Joseph J. Langel Michael J. Waldspurger* 300 Peavey Building 730 Second Avenue South Minneapolis, Minnesota 55402 Margaret A. Skelton Amy E. Mace Erin K. Munson Anne C. Becker Holly Lindquist Thomas (612) 339-0060 Fax (612) 339-0038 www.ratwiklaw.com * Also admitted in Wisconsin ** Civil Trial Specialist Certified by the Minnesota State Bar Association t Real Property Law Specialist Certified by the Minnesota State Bar Association October 5, 2000 received OCt I 2 2000 resource Mr. David J. Hauser Otter Tail County Attorney Otter Tail County 121 West Junius Avenue Fergus Falls, MN 56537 RE; Kelly v. Otter Tail County Our File No. 1070-0425 Dear Mr. Hauser: The Court has issued its Findings of Fact, Conclusions of Law and Order in the above-referenced matter. The Court found that the Board of Adjustment’s reasons for denying the variance on the boathouse were not legally sufficient and that they did not have an adequate factual basis. However, the Court has remanded the matter to the Board for reconsideration The Court determined that the Board based its denial of the variance on its mistaken understanding that the Shoreline Management Ordinance required a non-conforming building to come into compliance with the existing Ordinance when any improvement or modification increased the value of the building by more than 50 percent. The Court noted that the Ordinance did not contain such a requirement. Further, the Court found that the Board, in denying the variance, failed to consider the factors of “hardship” to the Appellants and “consistency in harmony with the general purposes and intent of the Ordinance” as required by Minn. Stat. § 394.27, subd. 7. Accordingly, the Court reversed the Board’s denial of the variance and remanded the matter to the Board. The Court also determined that the Appellants’ repair of the main cabin’s roof constituted general maintenance, as distinguished from remodeling, major improvement and/or alteration, and that no variance was required to conduct the repair. The Court found that the decision to allow the Appellants to make the minor roof repairs to the main cabin was not I Mr. David J. Hauser October 5, 2000 Page 2 conditioned upon the removal of the boathouse on or prior to May 1, 2000, and that the order for removal exceeded the Board’s authority. A copy of the Court’s Findings of Fact, Conclusions of Law and Order are enclosed. Please feel free to contact me with any questions regarding the Court’s decision or questions relating to the remand. Sincerely, VTerrence J. Foy 12180/kjs Enc. Debbie Roach (Claim No. 102GL9901335) Candace Powers cc; STATE OF MINNESOTA COUNTY OF OTTERTAIL SEVENTH JUDICIAL DISTRICT FERGUS FALLS, MINNESOTA 56537 In Re: IN RE: THE MATTER OF THE DECISION OF THE OTTER TAIL COUNTY BOARD OF ADJUSTMENT TO DENY A VARIANCE TO SEAN & CHERYL KELLY Case Number: 56-C6-99-001844 OCr-5 2XiO ;TERRENCE J FOY RATWIK ROSZAK BERGSTROM ET AL 300 PEAVEY BLDG 730 2ND AVE S MINNEAPOLIS MN 55402 ■H ii! f [ ■ \ y\i NOTICE O F FILING O F ORDER You are hereby notified on October 3, 2000 a FINDINGS OF FACT, CONCLUSIONS OF LAW & ORDER was filed in the above entitled matter. A true and correct copy of this notice has been served by mail upon the parties ncuned herein at the last known address of each, pursuant to the Minnesota Rules of Civil Procedure. Kathryn A.^Ouren, Court Administrator B- 6eputyDated: October 3, 2000 1 Case Number: 56-C6-99-001844 In Re: IN RE: THE MATTER OF THE DECISION OF THE OTTER TAIL COUNTY BOARD OF ADJUSTMENT TO DENY A VARIANCE TO SEAN & CHERYL KELLY COPIES OF THE ATTACHED NOTICE HAVE BEEN SENT TO THE FOLLOWING: Charles A. Krekelberg Attorney at Law P.O. Box 353 Pelican Rapids, MN 56572 TERRENCE J. FOY RATWIK, ROSZAK BERGSTROM ET AL 300 PEAVEY BLDG, 730 2ND AVE S MINNEAPOLIS, MN 55402 Page 1 STATE OF MINNESOTA IN DISTRICT COURT COUNTY OF OTTER TAlt KATHRYN A. (jUREfJ SEVENTH JUDICIAL DISTRICT COURT ADMlNISTflATOfl OHER TAIL COUNTY. MINIJ. OCT - 3 2000 Court File No. C6-99-1844 In Re: The Matter of the Decision of the Otter Tail County Board of Adjustment To Deny a Variance to to Sean W. Kelly and Cheryl A. Kelly FINDINGS OF FACT, CONCLUSIONS OF LAW & ORDER PRELIMINARY STATEMENT The above-entitled matter came before the undersigned Court on September 21, 2000, at the Otter Tail County Courthouse, Fergus Falls, Minnesota. The Appellants appeared in person and through their attorney, Charles Krekelberg. The Respondent appeared at the hearing through their attorney, Terrence J. Foy. Prior to the above-described hearing, the Court received and reviewed various briefs and memoranda of law filed by counsel for the parties. Having reviewed the entire file in this matter, and having considered the written arguments and oral arguments of counsel, the Court issues the following FINDINGS OF FACT In February, 1996, the Appellants purchased a parcel of property that1. abuts Otter Tail Lake in Otter Tail County, Mirmesota, described as follows: “The northwest thirty feet of Lot 8 and all of Lot 9, Jonelsa Beach, located in Section 28, Amor Township, on Otter Tail Lake, Parcel number 02-00099-0427-000, all located in Otter Tail County.” fy-- ■■■:i. ' As purchased by the Appellants, the property in issue contained a boathouse, a main cabin, and two other small buildings/cabins. In the summer of 1996, the Appellants removed several wooden doors 2v- i< • ... 3. 1 from the boathouse and replaced the same with sliding glass doors. The Appellants did not obtain a Site Permit or Variance from the Otter Tail County Board of Adjustment (hereafter, OTCB A) prior to altering and/or improving the boathouse in.tMs respect. In either 1998 and/or 1999, but prior to August 4, 1999, the Appellants4. undertook several additional alterations and/or repairs of the boathouse. As originally received by the Appellants when they purchased the above- described property, the boathouse contained a small side ddoir that was only four feet in height. The small door operated as the main entrance to the boathouse and constituted a physical hazard for adults entering or exiting the boathouse. Several individuals had incurred some serious head bruises in attempting to enter/exit the boathouse prior to the modification/repairs. [Appellants’Exhibit 3.] Thus, in 1998 or 1999, the Appellants built a small “dormer” above the small side door and increased the height of the side door to approximately six-seven feet. In addition, the Appellants made various repairs to the roof and sides of the boathouse. Prior to undertaking the above construction and/or repairs, the Appellants5. did not obtain a Site Permit and/or Variance from the OTCBA. On August 4,1999, Mark Ronning, Land and Resources Management6. Officer for Otter Tail County, inspected the Appellants’ boathouse in 2 •r I response to a third-party complaint regarding the above-described alterations. On August 5, 1999, Mr. Ronning issued Citation Number 1456 to the7. Appellants, for altering a structure in the Shore Impact Zone without first obtaining a Variance and a Site Permit as required by the Otter Tail County Shoreline Management Ordinance. [Respondent’s Exhibit 3.] 8.On September 27, 1999, the Appellants applied for a Variance by filing an Application for Variance with the Office of the County Recorder for Otter Tail County. [Respondent’s Exhibit 4.] The Application for Variance contains the following reasons specified by the Respondents in support of their request: “Boathouse - (see photos) The original side door (main entrance) of the boathouse is 4 ft. tall. It is a hazard for anyone entering or exiting & we have already had some serious head bruises. We would like to build small dormer above existing door to allow for a standard height door to building. We are also re-roofing & re­ siding. Main Cabin - The roof is leaking by the chimney because of roof valley, which runs into chimney. The valley needs to be slightly changed so runoff runs away from the stone chimney. This change will not be structurally higher than the existing roof Hardship - substandard lot of record.” On September 9,1999, the Appellants’ Application for Variance was9. heard and considered by the OTCBA, Mr. John Evarts presiding as Chairman of the Board. At the conclusion of the hearing, the Board unanimously voted to deny the Appellants’ request for a Variance relative to the improvement/alterations previously made to the boathouse. However, the Board granted the Appellants’ Request for a Variance for 3 ■1 the purpose of performing repair work oh' the roof of the Appellants’ cabin to prevent water leakage. Finally, the Board unanimously ordered that the Appellants were required to remove all of the boathouse (with the exception of the cement bulkhead) by May 1,2000. Subsequent to September 9, 1999, and prior to September 22,1999, Chairman John Everts executed a formal Order which partially approved and partially denied the Appellants’ previous application for a variance. [Respondent’s Exhibit 4]. On September 22,1999, a copy of the Order of Chairman John Everts was mailed to the Appellants ^d the Minnesota Department of Natural Resources. The Order executed by John Everts which partially approved and partially denied the Appellants’ previous application for a variance, reads as follows: Motion was made by Randall Mann, seconded by Cecil Femling and unanimously carried, to require that the applicants renibve the boathouse by May 1,2000, except for the cement bulkhead, and to allow the proposed maintenance to be completed on the main structure. 10. The transcript of the hearing held by the OTCBA on September 9,1999,11. clearly established that the decision of the OTCBA to deny the Appellants’ request for a variance relative to the boathouse alterations. was based upon the Board’s misunderstanding/misinterpretation of the ,Otter Tail County Shoreline Management Ordinance in effect at the time of the decision. Throughout the hearing. Chairman John Everts repeatedly informed the Board members that the Otter Tail County Shoreline Management Ordinance required a non-conforming building to come into 4 coiripli&ce with the existing ordinance, when any improvement or modification increased the value of the building by more than fifty (50%) percent. Following is are selected quota,tions from the transcript of the hearing which establishes this misunderstanding or misinterpretation of the ordinance in issue: John Everts:“The ordinance tells us that anytime a nonconforming use building like this boathouse is improved, modified, remodeled, it exceeds fifty percent of its value then it is, that building should come into compliance and of course for a building like that to come into compliance, it would have to be removed. That’s actually what the ordinance would be on that part of it. Board members, any questions or comments?” Page 1, transcript of hearing. Respondent’s Exhibit 6. John Everts:“No. The accumulated improvements bn this building I believe we saw a patio door, new siding, new roofing, this dormer, I think with the judgment of the Board here that that would be exceeding fifty percent of the value of,that original structure at which Case, it is considered a new building at that point and it would require a permit, a building pennit, and would also require a variance in order to put it there so that’s what the Board is struggling vrith.” Page 2, transcript of hearing. Respondent’s Exhibit 6. “Actually, if it gets into a discussion about who determines the valuation it’s my understanding that the Coimty Assessor would evaluate that building prior to its remodeling or change, alteration, and if that alteration would exceed that, then its to be considered a neyv dwelling, or a new structure.” Page 3, transcript of hearing. Respondent’s Exhibit 6. John Everts: “Yeah. But I mean, what I’m saying is next time if we wanted to do anything, like say if that other cabin the wind blew and knocked off, you know, part of a wall there. Mr. Kelly: Mr. Kelly: And we wanted to fix that. And we came here for that variance, would that, I mean, you’re saying... Mr. Kelly: 5 David Hauser;(inaudible) Anything that we require a variance (inaudible) they’re saying bring everything else into compliance. Mr. Kelly:But now fixing, the reason this was on a variance is because where it was located, then? Is that? That’s what I think I don’t know.” David Hauser:(Inaudible) Mr. Kelly;But if we have damage to any of the other buildings and wanted to fix it because of a storm or whatever, we wouldn’t have to come... David Hauser:(Inaudible) Mr. Kelly:Now that’s a fifty percent? Yeah. And that would be over an accumulation of time, too, now that wouldn’t be, you know, ten percent this year, ten percent next year, until the whole thing is, exceeds that. That would be the total, the total repairs, remodeling, or alterations that would exceed fifty percent and is considered a new building, and you need a building permit. Okay. I have a motion and a second. How are we doing here? Any further discussion? Carrying on, all in favor of (inaudible) say “aye”.” Page 9, transcript of hearing. Respondent’s Exhibit 6. John Everts: The Shoreline Management Ordinance of Otter Tail County was originally12. enacted in October, 1971. The Ordinance in effect at the time of the hearing in issue was revised on May 1,1997. [Respondent’s Exhibit 1.] The Otter Tail County Shoreline Management Ordinance contains no provisions which require non-conforming property to come into compliance with the current ordinance if there is an improvement or modification which increases the value of the property by greater than fifty (50%) percent. 6 '■] A close reading of the transcript of the hearing held on September 9, 1999, establishes that the OTCBA based its decision to deny the Appellants’ variance with respect to the improvements to the boathouse, and ordered 13. the removal of the boathouse, primarily because of the above-described misunderstanding/misinterpretation of the Otter Tail County Shoreline Management Ordinance in effect at the time of the hearing. Minn. Stat. § 394.27, Subd. 7, reads as follows:14. “Variances shall only be permitted when they are in harmony with the general purposes and intent of the official control and cases when there are practical difficulties or particular hardship in the way of carrying out the strict letter of any official control, and when the terms of the variance are consistent with the comprehensive plan.” The transcript of the hearing establishes that in denying the Appellant’s request for a variance relative to the improvements made to the boathouse. and in ordering removal of the boathouse, the OTCBA did not discuss or consider the following factual/legal issues: a) Whether the improvements to the boathouse and the Appellants’ use of the boathouse was consistent with the Comprehensive Plan and in harmony with the general purposes and intent of the Ordinance; and b) Whether strict compliance with the provisions of the Ordinance would constitute a “hardship” for the Appellants. The Appellants’ use of the boathouse as a storage shed for their personal15. property, did not change as a result of the improvement/modifications which were made to the boathouse as above described in 1998 or 1999. Also, the improvement/modifications to the boathouse as above described, 7 did not change the dimensions of the height, width, or length of the boathouse. The transcript of the hearing before the OTCBA and the Order executed16. by Chairman John Everts subsequent to the hearing establishes that the decision of the OTCBA to allow the Appellants to make the minor roof repairs to the main cabin, was not conditioned upon the Appellants’ obligation to remove the boathouse (except for the cement bulkhead) on or prior to May 1,2000. The decision of the OTCBA to order the Appellants to remove the17. boathouse on or before May 1,2000, was based upon a misunderstanding/misinterpretation of the Board’s authority under Minnesota law. Miim. Stat. § 394.27, Subd. 5, identifies the authority of the Board of Adjustment in the following manner: Subd. 5. Authority. The board of adjustment shall have the authority to order the issuance of variances, hear and decide appeals from and review any order, requirement, decision, or determination made by any administrative official charged with enforcing any ordinance adopted pursuant to the provision of sections 394.21 to 394.37, order the issuance of permits for buildings in areas designated for future public use or an official map and perform such other duties as required by the official controls. Such appeal may be taken by any person aggrieved or by any officer, department, board or bureau of a town, municipality, county, or state. In exercising its powers under this subdivision, the board of adjustment shall take into consideration the town board’s recommendation when the board of adjustment’s decision directly affects land within the tovra. In rendering its decision to grant the Appellants’ request to make minor18. repairs to the roof of their main cabin, the Board based its decision upon the understanding that the Appellants’ roof repair work constituted roof 8 maintenance instead of roof alteration or remodeling. The following quotation from the transcript of the hearing relative to this issue, reads as follows; Ms. Kelly:“What is the rule for reproofing? Are we allowed to reroof? We were under the understanding that we could... John Everts;That was considered maintenance, isn’t it? David Hauser;That was maintenance. But when you’re changing rood (inaudible), you’re altering... Mr. and Mrs. Kelly: Okay. Okay.” Page 6, transcript of hearing. Respondent’s Exhibit 6. In addition, the Court finds that the minor roof repair performed by the Appellants upon the main cabin, is in the nature of roof maintenance, and is not in the nature of roof remodeling, roof alteration, or construction of a new roof 19.The Shoreline Management Ordinance of Otter Tail County in effect in 1999, did not require the Appellants to make application for a variance, for minor construction work on buildings properly identified as ordinary maintenance work or repairs. In making their application to the OTCBA and requesting a variance for authority to conduct the minor maintenance repair work on their main cabin, the Appellants were under a misvinderstanding of the legal requirements set forth by the Ordinance in issue. In addition, in acting upon and granting the Appellants’ request for a Variance relative to the minor repair work performed by the Appellants on the main cabin, the OTCBA was also under a misunderstanding or 9 1,. misinterpretation of the provisions of the Shoreline Management Ordinance. 20. On October 15,1999, the Appellants perfected the pending appeal from the above-described adverse decision of the OTCBA by serving a Notice of Appeal uppn Mr. Wayne Stein, Otter Tail County Auditor, and filing said Notice of Appeal with this Court. Based upon the foregoing FINDINGS OF FACT, the Court enters the following CONCLUSIONS OF LAW The reasons set forth by the OTCBA for denying the Appellants’ Request for a Variance relative to the improvements made to the boathouse, are not 1. legally sufficient, do not have an adequate factual basis, and therefore must be REVERSED. C.R. Investments, Inc. v. Village of Shoreview, 304 N.W.2d 320, 325 (Minn. 1981); • The OTCBA acted beyond its statutory authority, in ordering the2. Appellants to remove their boathouse on or before May 1, 2000; The Appellants’ minor maintenance and/or repair of the roof on the main cabin, does not prevent or estop the Appellants from claiming that the boathouse should remain in existence in its present state. Minn. Stat. § 394.27, Subd. 7, requires the OTCBA to consider the issues4. of “hardship” to the Appellants and “consistency in harmony with the general purposes and intent of the Ordinance”, in considering the Appellants’ request for a Variance in relationship to the improved ,4 boathouse. 10 Based upon the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW, the Court now issues the following ORDER The decision of the OTCBA, denying the Appellants’ Request for a1. Variance in relationship to the improved boathouse, is REVERSED and REMANDED to the OTCBA, for further hearings consistent with this ORDER and the attached Memorandum; Upon remand, the OTCBA shall consider and implement the provisions of2. Minn. Stat. § 394.27, Subd. 7; specifically, the OTCBA shall specifically address the following factual/legal issues, and make adequate findings relative to said issues: a) Whether or not denial of the Appellants’ request for a variance relative to the boathouse issue, would create “hardship” to the Appellants; b) Whether or not the Appellants’ request for a variance is in harmony with the general purposes and intent of the relevant provisions of the Otter Tail County Shoreline Management ordinance. 3.The Order of the OTCBA requiring the Appellants to remove the boathouse by May 1,2000, is hereby VACATED; At all future hearings relative to the Appellants’ Request for a Variance4. with relationship to the improved boathouse, the OTCBA shall assume that the previous repair to the roof of the main cabin, constituted general maintenance as distinguished fi'om remodeling, major improvements. and/or alterations; and The attached Memorandum is incorporated by reference herein.5. 11 r Dated this 3rd day of October, 2000. 0\ —/ Hdhr-Oalen J. Vaa / Judge of the Dishict Court ■ ; -? . r-' o'. 12 V 1 MEMORANDUM Standard of ReviewA. This appeal requires the Court to review a decision of the OTCBA, which is an administrative body under Minnesota law. Because the OTCBA is charged with the responsibility of making policy decisions relative to land use matters, this Court’s standard of review is narrow. Generally, review of a Board of Adjustment’s denial of a variance, is limited to determining whether the Board’s decision has a factual basis and is legally sufficient. C.F. Investments, Inc. v. Village of Shoreview, 304N.W.2d 320, 325 (Minn. 1981), and Sagstetter v. City of St. Paul, 529 N.W.2d 488 (Minn. Ct. App. 1995). Further, because the OTCBA is acting in a quasi-judicial capacity, this Court’s review of the Board’s decision is limited to the record created at the Board hearing, and any Exhibits addressed at the hearing. Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988). B.Authority or Power of the Otter Tail County Board of Ad justment In its enactment of Chapter 394, the legislature authorized the formation of Boards of Adjustment by the respective counties located in the State of Minnesota. Minn. Stat. § 394.27, Subd. 5 establishes the following authority of a Board of Adjustment created by a county to carry on planning and zoning activities: Subd. 5. Authority. The board of adjustment shall have the authority to order the issuance of variances, hear and decide appeals from and review any order, requirement, decision, or determination made by any administrative official charged with enforcing any ordinance adopted pursuant to the provisions of sections 394.21 to 394.37, order the issuance of permits for buildings in areas designated for future public use on an official map and perform such other duties as required by the official 13 1 controls. Such appeal may be taken by any person aggrieved or by any officer, department, board or bureau of a town, municipality, county, or state. In exercising its powers under this subdivision, the board of adjustment shall take into consideration the town board’s recommendation when the board of adjustment’s decision directly affects land within the town. It is apparent that the legislature has not granted Boards of Adjustment with the authority to order the removal of buildings and/or uses which do not conform to existing ordinances. Therefore, the OTGBA had no statutory authority to order the Appellants to remove the boathouse on or prior to May 1,2000. Accordingly, it is clear that this order of the OTCBA must be vacated by this Court. Obviously, this decision should not be interpreted in such a way that implies that Otter Tail County is legally powerless to abate non-conforming uses. Certainly, the Otter , Tail County Attorney (and perhaps other county agencies) has the authority to take the necessary legal action to abate or remove Wd uses or activities which are in violation of ordinances or other zoning regulations. However, the legislature has clearly not bestowed that authority (i.e., the authority to abate or remove non-conforming uses) upon the OTCBA. C.Factors Which the OTCBA Must Consider in Granting or Denying a Variance Within certain parameters, the OTCB A has broad discretion in deciding whether or not to grant or deny an application for a variance. The fact that a court reviewing the action of a Board of Adjustment may have arrived at a different conclusion had it been a member of the Board, does not allow the Court to invalidate the judgment of Board officials who are acting in good faith and within .the broad discretion accorded to them by 14 I the legislature. VanLandschoot v. City ofMendota Heights, 330 N.W.2d 503, 509 (Minn. 1983). However, the broad discretion bestowed by the legislature on the OTCBA, is not unlimited. Minn. Stat. § 394.27, Subd. 7 specifically requires the Board of Adjustment to consider evidence introduced by an applicant which relate to two (2) factors: a. Whether or not the proposed use of the property is consistent with the comprehensive plan and in harmony with the general purposes and intent of the ordinance; and b. Whether or not it would create “hardship” to the applicant(s) if the variance is not granted. Specifically, Minn. Stat. §394.27, Subd. 7 reads in pertinent part as follows: .. .Variances shall only be permitted when they are in harmony with the general purposes and intent of the official control in cases where there are practical difficulties or particular hardship in the way of carrying out the strict letter of any official control, and when the terms of the variance are consistent with the comprehensive plan... Thus, it is necessary for this Court to review the transcript of the hearing to determine whether or not the OTCBA considered the above factors, in denying the Appellants’ Request for a Variance for the improvements to the boathouse. A brief review of the transcript of the hearing clearly establishes that the OTCBA did not discuss or consider the factors referred to in Minn. Stat. § 394.27, Subd. 7, prior to denying the Request for a Variance. Significantly, there was absolutely no reference at the hearing by any Board members, relative to the “hardship” or “lack of hardship” that the Appellants would sustain if the variance was denied. In addition, none of the Board members made any reference whatsoever to the issue of whether or not the Appellants’ improved boathouse was “consistent with any comprehensive plan” or “in harmony with the general purpose and intent” of the Ordinance. 15 1i' Notwithstanding the Appellants’ failure of the OTCBA to consider the factors required-by Minn. Stat. § 394.27, Subd. 7, the Appellants did attempt to introduce some evidence at the, hearing relative to those issues. For instance, Mr. Kelly pointed out to the Board , that his boathouse was only one of a number of boathouses in that area of the lake. The number of boathouses in the general area of the Appellants’ boathouse, would obviously be a relevant factor concerning the issue of whether or not the Appellants’ improved boathouse was “consistent with a comprehensive plan” and “in harmony with the general purposes and intent” of the Ordinance. Unfortunately, the transcript reveals no response from the Board members concerning this issue. In addition, the Application for Variance filed by the Kelly’s asserts that it was necessary for them to renipdel the boathouse in order to prevent serious head injuries to individuals trying to use the boathouse by ehtering/exiting the existing four foot door. Again, there is nothing in'the transcript which indicates that the members of the OTCBA considered any factors relevant to the “hardship” issue and there is nothing in the record to suggest that the Board’s final decision considered that statutory factor. A fair reading of the transcript leads to the inescapable conclusion that the ■ decision of the OTCBA was based upon the;erroneous assumption that the Ordinance prohibited improvements to a non-conforming use which exceeded fifty (50%) percent of the value of the boathouse. At numerous times during the hearing. Chairman Everts informed the other Board members that the variance could not be granted if the improvements to the boathouse exceeded fifty percent of the value to the boathouse. The traiiscript contains no indication that any of the other Board members ever challenged 16 IChairman Everts’ erroneous legal opinions. The law in Minnesota is clear. The reasons supporting the denial of the variance by a Board of Adjustment must have a factual basis and be legally sufficient. C.R. Investments, Inc. v. Fi7/age o/*S/io/*ev/ew, 304 N.W.2d 320, 325 (Minn. 1981). The transcript of the hearing in issue clearly establishes that the Board’s decision does not have an adequate factual basis, because the Board did not consider the factors which Minn. Stat. § 394.27, Subd. 7, requires that the Board consider before the Board makes a final determination concerning a Request for a Variance. Also, the decision of the OTCBA to deny the Appellants’ Application for a Variance, was legally insufficient because it was based upon the erroneous assumption that the OTC Shoreline Management Ordinance, required denial of the Variance if the improvements to the boathouse exceeded fifty (50%) percent of the value of the original structure. The transcript of the hearing and the Respondent’s own brief, establishes that all of the Board members were of the opinion that the boathouse improvements exceeded fifty percent of the value of the original structure. Hence, the decision of the OTCBA is legally insufficient on its face, because it is based upon an erroneous legal standard which the Board members utilized in denying the proposed Variance. D.Remand of This Matter to the Otter Tail County Board of Ad justment Minn. Stat. § 394.27, Subd. 7 bestows the authority to grant or deny variances upon the Board of Adjustment. It is not the province of this Court to render initial This Court is not criticizing Chairman Everts or other members of the OTCBA for their misunderstanding concerning the relevant provisions in the Otter Tail County Shoreline Zoning Ordinance. This misunderstanding apparently occurred because many counties do have zoning ordinances which contain the “50%” improvement of a structure as the critical criteria in determining whether or not to deny a variance request. For instance, in the Appeal of Kenny case, infra, the record clearly reflects that Steams County has a zoning ordinance which does contain the exact provision which Chairman Everts and other members of the OTCBA erroneously assumed were contained in the Otter Tail County Shoreline Zoning Ordinance. 17 decisions as to whether a variance should either be granted or denied. Up to this point, the OTCBA has never considered the factors required by Minn. Stat. § 394.27, Subd. 7, in resolving the issue of whether or not the Appellants’ Request for a Variance should be granted or denied. Therefore, it is appropriate and necessary for this matter to be remanded back to the OTCBA, so that the Board has the opportunity to review all of the evidence in issue and then enter a final decision which takes into account the factors set ■v. ■t forth by Minn. Stat. § 394.27, Subd. 7. This Court also notes that the facts in this case are remarkably similar to the facts involved in the Supreme Court decision of In Re the Matter of the Appeal of Harold Kenney, Jr., 374 N.W.2d 271 (Minn. 1985). Like the instant case, the Kenney case involved a situation where a landowner had performed improvements on a non- conforming boathouse, prior to obtaining or authorizing a variance from the Board of Adjustment. However, the Kenney case involved a county ordinance (Stearns County) which prohibited repairs or alterations to a non-conforming use which exceeded fifty (50%) percent of the value of the original property at the time the ordinance was passed. Initially, the Steams County Board of Adjustment denied the Request for a Variance by concluding that it had no statutory authority to grant the variance. On appeal, the Minnesota Suprenie Court concluded that the Board of Adjustment did have the statutory authority to grant the variance, and remanded the case back to the Board of Adjustment for further decision-making. Significantly, in remanding the case back to the Board of Adjustment^ the Supreme Court indicated that the Board should consider the “equities” in favor of the : V V r* 18 landowner in ultimately deciding the issue of whether to grant or deny the variance. The following statement of the Supreme Court is germane to the issue at hand: We believe in this case that substantial equities exist in favor of the landowner, and while we acknowledge that the discretion to grant a variance rests with the Board of Adjustment, we urge consideration of the following factors on remand: (1) appellant acted in good faith, (2) he attempted to comply with the law by obtaining a building permit, (3) the township’s building permit violated Minn. Stat. §394.33 (1978), (4) appellant has made a substantial investment in the property, (5) the repairs were completed before appellant was informed of their impropriety, (6) the nature of the property is residential/recreational and not commercial, (7) there are other simile structures on the lake, and (8) the minimum benefits to the county appear to be far outweighed by the detriment appellant would suffer if forced to remove his boathouse. Appeal of Kenney, 374 N.W.2d 271, 276 (Minn. 1985).] Upon remand, the OTCBA should consider the above statement of the Supreme Court in the Kenney case, in addition to considering the factors set forth in Mirm. Stat. § 394.27, Subd. 7. E.The Decision of the OTCBA to Deny the Appellants’ Request for a Variance for the Boathouse, was Not Conditioned Upon the Appellants’ Maintenance of the Roof on the Main Cabin In its Brief, counsel for the Respondent emphasizes that the Board of Adjustment had authority to condition granting the variance to repair the roof of the main cabin, upon the Appellants’ removal of the boathouse. This argument is untenable for several reasons. First, the transcript of the hearing clearly indicates that the Board recognized that the proposed minor repair to the cabin roof, constituted maintenance activity which did not require a variance. At one point during the hearing, David Hauser, Otter Tail County 19 Attorney, specifically informed Mr. Kelly that his re-roofmg work constituted “maintenance,” and not alteration or remodeling of the structure. Second, the plain language of the Order entered by Chairman Everts confirms that the Board assumed that the work performed on the main cabin constituted maintenance instead of remodeling and/or alterations. Third, if it was the intent of the Board to condition the Appellants’ right to repair the roof of the main cabin, upon removal of the boathouse,.the written Order signed by Chairman. Everts could, have easily stated that in clear language. However, instead. Chairman Everts’ signed Order contains nothing to indicate to a careful reader, that repair of the roof of the main cabin, is conditioned upon removal of the boathouse. CONCLUSION Based upon the foregoing, this matter is remanded to the OTCBA for further■i hearings/decisions consistent-with this opinion. In addition, the order of the OTCBA ■y which required the Appellants to remove the nonconforming boathouse on or prior to May 1,2000, is hereby VACATED. Dated this 3m day of October, 2000. Hon. Galen J. Vaa / / Judge of the District Ourt 20 . f i . MEMO OTTER TAIL COUNTY ATTORNEY 218/739-2271, Ext. 200 TO:WAYNE STEIN FROM:DAVID J. HAUSER 2-20-01DATE: Variance application of Sean W. Kelly and Cheryl Kelly - review after appeal to District Court RE: Please find enclosed a copy of the Order of the District Court remanding this matter to the Board of Adjustment for further proceedings. A copy of this Order, in its entirety, should be sent to each board member together with the original documents applying for the variance. Please schedule this for a hearing, and let me know the date so that I can be the attorney attending that meeting. Thank you. ! 1 STATE OF MINNESOTA IN DISTRICT COURTOCT - 3 2000 COUNTY OF OTTER TAlt muSSinIsSr ^eVeNTH JUDICIAL DISTRICT OHER TAIL COUNTY. MINH. __________________________________________________ Court File No. C6-99-1844 In Re: The Matter of the Decision of the Otter Tail County Board of Adjustment To Deny a Variance to to Sean W. Kelly and Cheryl A. Kelly FINDINGS OF FACT, CONCLUSIONS OF LAW & ORDER PRELIMINARY STATEMENT The above-entitled matter came before the undersigned Court on September 21, 2000, at the Otter Tail County Courthouse, Fergus Falls, Minnesota. The Appellants appeared in person and through their attorney, Charles Krekelberg. The Respondent appeared at the hearing through their attorney, Terrence J. Foy. Prior to the above-described hearing, the Court received and reviewed various briefs and memoranda of law filed by counsel for the parties. Having reviewed the entire file in this matter, and having considered the written arguments and oral arguments of counsel, the Court issues the following FINDINGS OF FACT In February, 1996, the Appellants purchased a parcel of property that1. abuts Otter Tail Lake in Otter Tail County, Minnesota, described as follows: “The northwest thirty feet of Lot 8 and all of Lot 9, Jonelsa Beach, located in Section 28, Amor Township, on Otter Tail Lake, Parcel number 02-00099-0427-000, all located in Otter Tail County.” As purchased by the Appellants, the property in issue contained a boathouse, a main cabin, and two other small buildings/cabins. 2. In the summer of 1996, the Appellants removed several wooden doors3. from the boathouse and replaced the same with sliding glass doors. The Appellants did not obtain a Site Permit or Variance from the Otter Tail County Board of Adjustment (hereafter, OTCB A) prior to altering and/or improving the boathouse in this respect. In either 1998 and/or 1999, but prior to August 4,1999, the Appellants4. undertook several additional alterations and/or repairs of the boathouse. As originally received by the Appellants when they purchased the above- described property, the boathouse contained a small side door that was ' only four feet in height. The small door operated as the main entrance to the boathouse and constituted a physical hazard for adults entering or .i exiting the boathouse. Several individuals had incurred some serious head bruises in attempting to enter/exit the boathouse prior to the modification/repairs. [Appellants’ Exhibit 3.] Thus, in 1998 or 1999, the Appellants built a small “dormer” above the small side doOr and increased the height of the side door to approximately six-seven feet. In addition. the Appellants made various repairs to the roof and sides of the boathouse. Prior to undertaking the above construction and/or repairs, the Appellants5. did not obtain a Site Permit and/or Variance from the OTCB A. On August 4,1999, Mark Ronning, Land and Resources Management6. Officer for Otter Tail County^ inspected the Appellants’ boathouse in 2 response to a third-party complaint regarding the above-described alterations. On August 5, 1999, Mr. Running issued Citation Number 1456 to the7. Appellants, for altering, a structure in the Shore Impact Zone vvithout first obtaining a Variance and a Site Permit as required by the Otter Tail County Shoreline Management Ordinance. [Respondent’s Exhibit 3.] On September 27, 1999, the Appellants applied for a Variance by filing an8. Application for Variance with the Office of the County Recorder for Otter Tail County. [Respondent’s Exhibit 4.] The Application for Variance contains the following reasons specified by the Respondents in support of their request; “Boathouse - (see photos) The original side door (main entrance) of the boathouse is 4.ft. tall. It is a hazard for anyone entering or exiting & we have already had some serious head bruises; We would like to build small dormer above existing door to allow for a standard height door to building. We are also re-roofing & re­ siding. Main Cabin - The roof is leaking by the chimney because of roof valley, which runs into chimney. The valley needs to be slightly changed so runoff runs away from the stone chimney. This change will riot be structurally higher than the existing roof. Hardship - substandard lot of record.” On September 9,1999, the Appellants’ Application for Variance was9. heard and considered by the OTCBA, Mr. John Evarts presiding as Chairman of the Board. At the conclusion of the hearing, the Board unanimously voted to deny the Appellants’ request for a Variance relative to the improvement/alterations previously made to the boathouse. However, the Board granted the Appellants’ Request for a Variance for 3 r the purpose of performing repair work on the roof of the Appellants’ cabin to prevent water leakage. Finally, the Board unanimously ordered that the Appellants were required to.remove all of the boathouse (with the exception of the cement bulkhead) by May 1,2000. 10. Subsequent to September 9, 1999, and prior to September 22, 1999, Chairman John Everts executed a formal Order which partially approved and partially denied'the Appellants’ previous application for a variance. [Respondent’s Exhibit 4]. On September 22,1999, a copy of the Order of Chairman John Everts was mailed to the Appellants and the Minnesota Department of Natural Resources. The Order executed by John Everts which partially approved and partially denied the Appellants’ previous application for a variance, reads as follows: Motion was made by Randall Mann, seconded by Cecil Femling and unanimously carried, to require that the applicants remove the boathouse by May ,1, 2000, except for the cement bulkhead, and to allow the proposed maintenance to be completed on the main structure. :t. V 11. The transcript of the hearing held by the OTCB A on September 9,1999, clearly established that the decision of the OTCB A to deny the Appellants’ request for a variance relative to the boathouse alterations. was based upon the Board’s misunderstanding/ihisinterpretation of the Otter Tail Coimty Shoreline Management Ordinance in effect at the time • ¥ .'.i of the decision. Throughout the hearing. Chairman John Everts repeatedly informed the Board members that the Otter Tail County Shoreline Management Ordinance required a non-conforming building to come into 4 compliance with the existing ordinance, when any improvement or modification increased the value of the building by more than fifty (50%) percent. Following is are selected quotations from the transcript of the hearing which establishes this misimderstanding or misinterpretation of the ordinance in issue: John Everts:“The ordinance tells us that anytime a nonconforming use building like this boathouse is improved, modified, remodeled, it exceeds fifty percent of its value then it is, that building should come into compliance and of course for a building like that to come into compliance, it would have to be removed. That’s actually what the ordinance would be on that part of it. Board members, any questions or comments?” Page 1, transcript of hearing. Respondent’s Exhibit 6. “No. The accumulated improvements on this building I believe we saw a patio door, new siding, new roofing, this dormer, I think v\dth the judgment of the Board here that that would be exceeding fifty percent of the value of that original structure at which case, it is considered a new building at that pouit and it would require a permit, a building permit, and would also require a variance in order to put it there so that’s what the Board is struggling with.” Page 2, transcript of hearing. Respondent’s Exhibit 6. John Everts: “Actually, if it gets into a discussion about who determines the valuation it’s my understanding that the County Assessor would evaluate that building prior to its remodeling or.change, alteration, and if that alteration would exceed that, then its to be considered a new dwelling, or a new structure.” Page 3, transcript of hearing. Respondent’s Exhibit 6. John Everts: “Yeah. But I mean, what I’m saying is next time if we wanted to do anything, like say if that other cabin the wind blew and knocked off, you know, part of a wall there. Mr. Kelly: Mr. Kelly:And we wanted to fix that. And we came here for that variance, would that, I mean, you’re saying... , Mr. Kelly: 5 r David Hauser;(inaudible) Anything that we require a variance (inaudible) they’re saying bring everything else into compliance. But now fixing, the reason this was bn a variance is because where it was located, then? Is that? That’s what I think I don’t know.” Mr. Kelly: David Hauser;(Inaudible) Mr. Kelly:But if we have damage to any of the other buildings and wanted to fix it because of a storm or whatever, we wouldn’t have to come... David Hauser;(Inaudible) Mr. Kelly:Now that’s a fifty percent? John Everts:Yeah. And that would be over an accumulation of time, too, now that wouldn’t be, you know, ten percent this year, ten percent next year, until the whole thing is, exceeds that. That would be the total, the total repairs, remodeling, or alterations that would exceed fifty percent and is considered a hew building, and you need a building permit. Okay. I have a motion and a second. How are we doing here? Any fiirther discussion? Carrying on, all in favor of (inaudible) say “aye”.” Page 9, transcript of hearing. Respondent’s Exhibit 6. ■; 12. The Shoreline Management Ordinance of Otter Tail County was originally enacted in October, 1971. The Ordinance in effect at the time of the hearing in issue was revised on May 1,1997. [Respondent’s Exhibit 1.] The Otter Tail County Shoreline Management Ordinance contains no provisions which require non-conforming property to come into compliance with the current ordinance if there is an improvement or modification which increases the value of the property by greater than fifty (50%) percent. 6 1 A close reading of the transcript of the hearing held on September 9,1999,13. establishes that the OTCBA based its decision to deny the Appellants’ variance with respect to the improvements to the boathouse, and ordered the removal of the boathouse, primarily because of the above-described misunderstanding/misinterpretation of the Otter Tail County Shoreline Management Ordinance in effect at the time of the hearing. Minn. Stat. § 394.27, Subd. 7, reads as follows:14. “Variances shall only be permitted when they are in harmony with the general purposes and intent of the official control and cases when there are practical difficulties or particular hardship in the way of carrying out the strict letter of any official control, and when the terms of the variance are consistent with the comprehensive plan.” The transcript of the hearing establishes that in denying the Appellant’s request for a variance relative to the improvements made to the boathouse. and in ordering removal of the boathouse, the OTCBA did not discuss or consider the following factual/legal issues; a) Whether the improvements to the boathouse and the Appellants’ use of the boathouse was consistent with the Comprehensive Plan and in harmony with the general purposes and intent of the Ordinance; and b) Whether strict compliance with the provisions of the Ordinance would constitute a “hardship” for the Appellants. The Appellants’ use of the boathouse as a storage shed for their personal15. property, did not change as a result of the improvement/modifications which were made to the boathouse as above described in 1998 or 1999. Also, the improvement^modifications to the boathouse as above described, 7 did not change the dimensions of the height, width, or length of the boathouse. 16.The transcript of the hearing before the OTCBA and the Order executed by Chairman John Everts subsequent to the hearing establishes that the decision of the OTCBA to allow the Appellants to make the minor roof repairs to the main cabin, was not conditioned upon the Appellants’ obligation to remove the boathouse (except for the cement bulkhead) on or prior to May 1,2000. The decision of the OTCBA to order the Appellants to remove the17. boathouse on or before May 1,2000, was based upon a misunderstanding/misinterpretation of the Board’s authority under Minnesota law. Minn. Stat. § 394.27, Subd. 5, identifies the authority of the Board of Adjustment in the following manner: Subd. 5. Authority. The board of adjustment shall have the authority to order the issuance of variances, hear and decide appeals from and review any order, requirement, decision, or determination made by any administrative official charged with enforcing any ordinance adopted pursuant to the provision of sections 394.21 to 394.37, order the issuance of permits for buildings in areas designated for future public use or an official map and perform such other duties as required by the official controls. Such appeal may be taken by any person aggrieved or by any officer, department, board or bureau of a town, municipality, county, or state. In exercising its powers under this subdivision, the board of adjustment shall take into consideration the town board’s recommendation when the board of adjustment’s decision directly affects land within the town. In rendering its decision to grant the Appellants’ request to make minor18. repairs to the roof of their main cabin, the Board based its decision upon the understanding that the Appellants’ roof repair work constituted roof 8 ■ •r maintenance instead of roof alteration or remodeling. The followang quotation from the transcript of the hearing relative to this issue, reads as follows:A “What is the rule for reproofing? Are we allowed to reroof? We were under the understanding that we could... That was considered maintenance, isn’t it? Ms. Kelly: John Everts: David Hauser:That was maintenance. But when you’re changing rood (inaudible), you’re altering... Mr. and Mrs. Kelly: Okay. Okay.” Page 6, transcript of hearing. Respondent’s Exhibit 6. V In addition, the Court finds tihat the minor roof repair performed by the Appellants upon the main cabin, is in the nature of roof maintenance, and is not in the nature of roof remodeling, roof alteration, or construction of a new roof. The Shoreline Management Ordinance of Otter Tail County in effect in19. A' 1999, did not require the Appellants to make application for a variance, for minor construction work on buildings properly identified as ordinary A maintenance work or repairs. In making their application to the OTCBA t: -' and requesting a variance for authority to conduct the minor maintenance repair work on their main cabin, the Appellants were under a misunderstanding of the legal requirements set forth by the Ordinance in issue. In addition, in acting upon and granting the Appellants’ request for a Variance relative to the minor repair work performed by the Appellants on the main cabin, the OTCBA was also under a misunderstanding or 7 9 misinterpretation of the pro visions of the Shoreline Management Ordinance. 20. On October 15, 1999, the Appellants perfected the pending appeal from the above-described adverse decision of the OTCBA by serving a Notice of Appeal upon Mr. Wayne Stein, Otter Tail County Auditor, and filing said Notice pf Appeal with this Court. Based upon the foregoing FINDINGS OF FACT, the Court enters the following CONCLUSIONS OF LAW The reasons set forth by the OTCBA for denying the Appellants’ Request for a Variance relative to the improvements made to the boathouse, are not 1. legally sufficient, do not have an adequate factual baris, and therefore must be REVERSED. C.R. Investments, Inc. v. Village of Shoreview, 304 N.W.2d 320, 325 (Minn. 1981); ■ The OTCBA acted beyond its statutory authority, in ordering the Appellants to remove their boathouse on or before May 1, 2000; The Appellants’ minor maintenance and/or repair of the roof on the main 2. cabin, does not prevent or estop the Appellants from clainiing that the boathouse should remain in existence in its present state. Minn. Stat. § 394.27, Subd. 7, requires the OTCBA to consider the issues4. of “hardship” to the Appellants and “consistency in harmony with the general purposes and intent of the Ordinance”, in considering the Appellants’ request for a Variance in relationship to the improved boathouse. 10 -'»■ ' >'i Based upon the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW, the Court now issues the following ORDER The decision of the OTCBA, denying the Appellants’ Request for a Variance in relationship to the improved boathouse, is REVERSED and 1. REMANDED to the OTCBA, for further hearings consistent with this ORDER and the attached Memorandum; 2.Upon remand, the OTCBA shall consider and implement the provisions of Minn. Stat. § 394.27, Subd. 7; specifically, the OTCBA shall specifically address the following factual/legal issues, and make adequate findings relative to said issues; a) Whether or not denial of the Appellants’ request for a variance relative to the boathouse issue, would create “hardship” to the Appellants; b) Whether or not the Appellants’ request for a variance is in harmony with the general purposes and intent of the relevant provisions of the Otter Tail County Shoreline Management ordinance. The Order of the OTCB A requiring the Appellants to remove the3. boathouse by May 1; 2000, is hereby VACATED; At all future hearings relative to the Appellants’ Request for a Variance with relationship to the improved boathouse, the OTCBA shall assume 4. that the previous repair to the roof of the main cabin, constituted general maintenance as distinguished from remodeling, major improvements. and/or alterations; and The attached Memorandum is incorporated by reference herein.5. 11 1'.' •.. :Dated this 3rd day of October, 2000. 6"-^^—-y Hdhr-0alen J. Vaa / Judge of the District Court ; i' i \ - • ;; - 12 ;; - MEMORANDUM Standard of ReviewA. This appeal requires the Court to review a decision of the OTCBA, which is an administrative body under Minnesota law. Because the OTCBA is charged with the responsibility of making policy decisions relative to land use matters, this Court’s standard of review is narrow. Generally, review of a Board of Adjustment’s denial of a variance, is limited to determining whether the Board’s decision has a factual basis and is legally sufficient. C.F. Investments, Inc. v. Village of Shoreview, 304N.W.2d 320, 325 (Minn. 1981), and Sagstetter v. City of St. Paul, 529 N.W.2d 488 (Minn. Ct. App. 1995). Further, because the OTCBA is acting in a quasi-judicial capacity, this Court’s review of the Board’s decision is limited to the record created at the Board hearing, and any Exhibits addressed at the hearing. Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988). Authority or Power of the Otter Tail County Board of AdjustmentB. In its enactment of Chapter 394, the legislature authorized the formation of Boards of Adjustment by the respective counties located in the State of Minnesota. Miim. Stat. § 394.27, Subd. 5 establishes the following authority of a Board of Adjustment created by a county to carry on planning and zoning activities: Subd. 5. Authority. The board of adjustment shall have the authority to order the issuance of variances, hear and decide appeals from and review any order, requirement, decision, or determination made by any administrative official charged with enforcing any ordinance adopted pursuant to the provisions of sections 394.21 to 394.37, order the issuance of permits for buildings in areas designated for future public use on an official map and perform such other duties as required by the official 13 r controls. Such appeal may be taken by any person aggrieved or by any officer, department, board or bureau of a town, municipality, county, or state. In exercising its powers under this subdivision, the board of adjustment shall take into consideration the town board’s recommendation when the board of adjustment’s decision directly affects land within the town. It is apparent that the legislature has not granted Boards of Adjustment with the authority to order the removal of buildings and/or uses which do not confonri to existing ordinances. Therefore, the OTCBA had no statutory authority to order the Appellants to remove the boathouse on or prior to May 1, 2000. Accordingly, it is clear that this order of the OTCBA must be vacated by this Court. ■;,Obviously, this decision should not be interpreted in such a way that implies that Otter Tail Coimty is legally powerless to abate non-conforming uses. Certainly, the Otter Tail County Attorney (and perhaps other county agencies) has the authority to take the necessary legal action to abate or remove land uses or activities which are in violation of ordinances or other zoning regulations. However, the legislature has clearly not bestowed that authority (i.e., the authority to abate or remove non-conforming uses) upon the OTCBA. Factors Which the OTCBA Must Consider in Granting or Denying aC. Variance Within certain parameters, the OTCBA has broad discretion in deciding whether or not to grant or deny an application for a variance. The fact that a court reviewing the action of a Board of Adjustment may have arrived at a different conclusion had it been a member of the Boards does not allow the Court to invalidate the judgment of Board officials who are acting in good faith and within the broad discretion accorded to them by 14 ; the legislature. VanLandschoot v. City ofMendota Heights, 330 N.W.2d 503, 509 (Minn. 1983). However, the broad discretion bestowed by the legislature on the OTCB A, is not unlimited. Minn. Stat. § 394.27, Subd. 7 specifically requires the Board of Adjustment to consider evidence introduced by an applicant which relate to two (2) factors: • : a. Whether or not the proposed use of the property is consistent with the comprehensive plan and in harmony with the general purposes and intent of the ordinance; and b. Whether or not it would create “hardship” to the applicant(s) if the variance is not granted. Specifically, Minn. Stat. §394.27, Subd. 7 reads in pertinent part as follows: .. . Variances shall only be permitted when they are in harmony with the general purposes and intent of the official control in cases where there are practical difficulties or particular hardship in the way of carrying out the strict letter of any official control, eind when the terms of the variance are consistent with the comprehensive plan... i 'V Thus, it is necessary for this Court to review the transcript of the hearing to determine whether or not the OTCB A considered the above factors, in denying the Appellants’ Request for a Variance for the improvements to the boathouse. ;■ A brief review of the transcript of the hearing clearly establishes that the OTCB A did not discuss or consider the factors referred to in Minn. Stat. § 394.27, Subd. 7, prior to denying the Request for a Variance. Significantly, there was absolutely no reference at the hearing by any Board members, relative to the “hardship” or “lack of hardship” that the Appellants would sustain if the variance was denied. In addition, none of the Board members made any reference whatsoever to the issue of whether or not the Appellants’ improved boathouse was “consistent with any comprehensive plan” or “in harmony with the general purpose and intent” of the Orclinance. .'i 15 Notwithstanding the Appellants’ failxire of the OTCBA to consider the factors required by Minn. Stat. § 394.27, Subd. 7, the Appellants did attempt to introduce some evidence at the hearing relative to those issues. For instance, Mr. Kelly pointed out to the Board that his boathouse was only one of a number of boathouses in that area of the lake. The number of boathouses in the general area of the Appellants’ boathouse, would obviously be a relevant factor concerning the issue of whether or not the Appellants’ improved boathouse was “consistent with a comprehensive plan” and “in harmony with the general purposes and intent” of the Ordinance. Unfortunately, the transcript reveals no response from the Board members concerning this issue. In addition, the Application for Variance filed by the Kelly’s asserts that it was 5--, necessary for them to remodel the boathouse in order to prevent serious head injuries to individualsstrying to use the boathouse by entering/exiting the existing four foot door. Again, there is nothing in the transcript which indicates that the members of the OTCBA considered any factors relevant to the “hardship” issue and there is nothing in the record to suggest that the Board’s final decision considered that statutory factor. A fair reading of the transcript leads to the inescapable conclusion that theS' decision of the OTCBA was based upon the erroneous assumption that the Ordinances prohibited improvements to a non-conforming use which exceeded fifty (50%) percent of the value of the boathouse. At numerous times during the hearing, Chairman Everts ■I: infonried the other Board members that the variance could not be granted if the i. improvements to the boathouse exceeded fifty percent of the value to the boathouse. The transcript contains no indication that any of the other Board members ever challenged 16 1Chairman Everts’ erroneous legal opinions. The law in Minnesota is clear. The reasons supporting the denial of the variance by a Board of Adjustment must have a factual basis and be legally sufficient. C.R. Investments, Inc. v. Village of Shoreview, 304 N.W.2d 320, 325 (Minn. 1981). The transcript of the hearing in issue cleeirly establishes that the Board’s decision does not have an adequate factual basis, because the Board did not consider the factors which Minn. Stat. § 394.27, Subd. 7, requires that the Board consider before the Board makes a final determination concerning a Request for a Variance. Also, the decision of the OTCBA to deny the Appellants’ Application for a Variance, was legally insufficient because it was based upon the erroneous assumption that the OTC Shoreline Management Ordinance, required denial of the Variance if the improvements to the boathouse exceeded fifty (50%) percent of the value of the original structure. The transcript of the hearing and the Respondent’s own brief, establishes that all of the Board members were of the opinion that the boathouse improvements exceeded fifty percent of the value of the original structure. Hence, the decision of the OTCBA is legally insufficient on its face, because it is based upon an erroneous legal standard which the Board members utilized in denying the proposed Variance. Remand of This Matter to the Otter Tail County Board of AdjustmentD. Minn. Stat. § 394.27, Subd. 7 bestows the authority to grant or deny variances upon the Board of Adjustment. It is not the province of this Court to render initial ’ This Court is not criticizing Chairman Everts or other members of the OTCBA for their misunderstanding concerning the relevant provisions in the Otter Tail County Shoreline Zoning Ordinance. This misunderstanding apparently occurred because many counties do have zoning ordinances which contain the “50%” improvement of a structure as the critical criteria in determining whether or not to deny a variance request. For instance, in the Appeal of Kenny case, infra, the record clearly reflects that Steams County has a zoning ordinance which does contain the exact provision which Chairman Everts and other members of the OTCBA erroneously assumed were contained in the Otter Tail County Shoreline Zoning Ordinance. 17 decisions as to whether a variance should either be granted or denied. Up to this point, the OTCBA has never considered the factors required by Minn. Stat. § 394.27, Subd. 7, in resolving the issue of whether or not the Appellants’ Request for a Variance should be granted or denied. Therefore, it is appropriate and necessary for this matter to be remanded back to the OTCBA, so that the Board has the opportunity to review all of the evidence in issue and then enter a final decision which takes into account the factors setI ;i forth by Minn. Stat. § 394.27, Subd. 7. This Court also notes that the facts in this case are remarkably similar to the facts involved in the Supreme Court decision of In Re the Matter of the Appeal of Harold Kenney, Jr., 374 N.W.2d 271 (Minn. 1985). Like the instant case, the Kenney case involved a situation where a landowner had performed improvements on a non- conforming boathouse, prior to obtaining or authorizing a variance from the Board of Adjustment. However, the Kenney case involved a county ordinance (Steams County) which prohibited repairs or alterations to a-non-conforming use which exceeded fifty (50%) percent of the value of the original property at the time the ordinance was passed. Initially, the Steams County Board of Adjustment denied the Request for a Variance by concluding that it had no statutory authority to grant the variance. Gn appeal, the Minnesota Supreme Court concluded that the Board of Adjustment did have the statutory authority to grant the variance, and remanded the case back to the Board of Adjustment for further decision-making.V i Significantly, in remanding the case back to the Board of Adjustment, the Supreme Court indicated that the Board should consider the “equities” in favor of the ;■ 18 landowner in ultimately deciding the issue of whether to grant or deny the variance. The following statement of the Supreme Court is germane to the issue at hand: We believe in this case that substantial equities exist in favor of the landowner, and while we acknowledge that the discretion to grant a variance rests with the Board of Adjustment, we urge consideration of the following factors on remand: (1) appellant acted in good faith, (2) he attempted to comply with the law by obtaining a building permit, (3) the township’s building permit violated Minn. Stat. §394.33 (1978), (4) appellant has made a substantial investment in the property, (5) the repairs were completed before appellant was informed of their impropriety, (6) the nature of the property is residential/recreational and not commercial, (7) there are other similar structures on the lake, and (8) the minimum benefits to the county appear to be far outweighed by the detriment appellant would suffer if forced to remove his boathouse. Appeal of Kenney. 374 N.W.2d 271, 276 (Minn. 1985).] Upon remand, the OTCBA should consider the above statement of the Supreme Court in the Kenney case, in addition to considering the factors set forth in Minn. Stat. § 394.27, Subd. 7. E.The Decision of the OTCBA to Deny the Appellants’ Request for a Variance for the Boathouse, was Not Conditioned Upon the Appellants’ Maintenance of the Roof on the Main Cabin In its Brief, counsel for the Respondent emphasizes that the Board of Adjustment had authority to condition granting the variance to repair the roof of the main cabin, upon the Appellants’ removal of the boathouse. This argument is untenable for several reasons. First, the transcript of the hearing clearly indicates that the Board recognized that the proposed minor repair to the cabin roof, constituted maintenance activity which did not require a variance. At one point during the hearing, David Hauser, Otter Tail County 19 .. ? Attorney, specifically informed Mr. Kelly that his re-roofing work.constituted maintenance,” and not alteration or remodeling of the structure. Second, the plain language of the Order entered by Chairman Everts confirms that the Board assumed that the work performed on the main cabin constituted maintenance instead of remodeling and/or alterations. . Third, if it was the intent of the Board to condition the Appellants’ right to repair the roof of the main cabin, upon removal of the boathouse, the written Order signed by Chairman Everts could have easily stated that in clear language. However, instead. Chairman Everts’ signed Order contains nothing to indicate to a careful reader, that repair of the roof of the main cabin, is conditioned upon removal of the boathouse. CONCLUSION B^ed upon the foregoing, this matter is remanded to the OTCBA for further hearings/decisions consistent .with this opinion. In addition, the order of the OTCBA which required the Appellants to remove the nonconforming boathouse on or prior to May 1, 2000, is hereby VACATED. Dated this 3nd day of October, 2000. •. Hon. Galen J. Vaa Judge of the District 20