HomeMy WebLinkAbout41000150106000_Variances_09-13-2019Variances
2
Barcode 128
SCNMDDate Stamp 1222793
RECEIVED
MAY 2 1 2019
'^RESOURCt
CAROL SCHMALTZ
OTTER TAIL COUNTY
RECORDER/REGISTRAR OF TITLES
FERGUS FALLS, MN
RECORDED ON
07/01/2019 08;54 AML&R Initial
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PAGES 9THE ABOVE SPACE IS RESERVED FOR THE COUNTY RECORDER
APPLICATION FOR VARIANCE™^'™"^"
COUNTY OF OTTER TAIL
GOVERNMENT SERVICES CENTER, 540 WEST FIR, FERGUS FALLS, MN 56537
(218) 998-8095
Otter Tail County’s Website: www.ottertailcountvmn.us
5600.00Application Fee
-2-OiA - Cl OCOMPLETE THIS APPLICATION IN INK Receipt Number
Accepted By / Date ^ I Z\ J ^
________________DAYTIME PHONEPROPERTY OWNER i^vTV>.KVv|rv
MAILING ADDRESS Crcv^Wi
Q> uVvi LX.1 iE-MAIL ADDRESS ■ Lr\iA^
LAKE NAME £.\U^^tjSC\YV
TOWNSHIP \hdi M RANGE TOWNSHIP NAME /ViHuKO.'^
LAKE CLASS A/£LAKE NUMBER SU
SECTION 15
E-911
ADDRESS A/.rlrrvnS CKvcl^ (mlv.'
PARCELNUMBER H\0CC>5Cii0L»OOO
LEGAL DESCRIPTION
Cv
TYPE OF VARIANCE REQUESTED (Please Check)
structure Setback \/' Structure Size WECS Misc.Sewage System Subdivision Cluster
SPECIFY HOW YOUR PROJECT VARIES FROM ORDINANCE REQUIREMENTS. CITE THE RELEVANT
SECTION(S) AND OTTER TAIL COUNTY ORDINANCE(S) FROM WHICH THE VARIANCE REQUEST IS
FOR. PLEASE BE BRIEF AS THIS WILL BE USED FOR PUBLIC NOTIFICATION.
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OTTER TAIL COUNTY ORDINANCE:
SECTION OF ORDINANCE:
7^VARIANCE REQUEST;'P.\yo«Y\(>nOL of cx toe -tc> ccyv'sVaxcV
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I UNDERSTAND THAT I HAVE APPLIED FOR A VARIANCE FROM THE REQUIREMENTS OF THE SHORELAND
MANAGEMENT ORDINANCE/SUBDIVISION CONTROLS ORDINANCE / SANITATION CODE / SETBACK ORDANANCE AN/OR
WECS ORDINANCE OF OTTER TAIL COUNTY.CO
I ALSO UNDERSTAND THAT OTHER PERMITS MAY BE REQUIRED; IT IS MY RESPONSIBILITY TO CONTACT LAND &
RESOURCE MANAGEMENT REGARDING THIS MATTER.
X
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SIGNATURE OF PFIOPERTY OWNER / AGENT FOR OWNER ' DATE
CO
APPLICANT MUST BE PRESENT AT THE HEARING
(Applicant Will Receive Notification As To The Date/Time Of Hearing)
OFFICE USE ONLY
rTj^ ^n/9Date Of Board of Adjustment Hearing
Motion
Time
Brooklyn Wensauer - Variance Application Approved with Condition (8:23 p.m.)
After consideration and discussion, a motion by Rick Wilson, seconded by Douglas Larson and unanimously carried to approve the
variance to construct a new dwelling with attached garage and 2 decks as indicated in the variance application dated May 21, 2019
with the condition that the proposal needs to be setback 150’ from the ordinary high-water level and based on the Findings of Fact
and Decision Form, which contains the criteria reviewed and the Board’s finding have been attached to and incorporated as an official
part of the minutes which has been placed on file with the Land & Resource Management Department. Hardship/practical difficulty is
the unique shape of the lot. The variance as approved does not directly or indirectly grant any other variances from proposed or future
development.
Chairman/6tter Tail County Board of Adjustment
Permit(s) required from Land & Resource Management
V Yes (Contact Land & Resource Management)
No
)L R Official/Date
ijllilflCopy of Application Mailed / E-Mailed to Applicant, Co. Assessor and the MN DNR
CL 01122019-001 368,804 • Victor Lundeen Co.. Printers ♦ Fergus Falls, MN • 1-800-346-4870
Chris LeClair
DirectorOTTER TAIL COUNTY
LAND & RESOURCE MANAGEMENT
PUBLIC WORKS DIVISION
WWW.CO.OTTER-TAIL.MN.US
Kyle Westergard
Asst. DirectorOTTCRTIIII
GOVERNMENT SERVICES CENTER
540 WEST FIR AVENUE
FERGUS FALLS, MN 56537 218-998-8095
FAX: 218-998-8112
Board of Adjustment
Findings of Fact and Decision
Address/Parcel No.: 19874 Nidaros Church Dr./41000150106000Applicant: Brooklyn Wensauer
Requested Variance: I'm requesting a variance of a 100' to construct a new dwelling with decks due to the standard
setback of 200' from the OHWL. The proposed dwelling is 28' x 48' with an attached garage proposed size of 30' x 40'.
This land also features a bluff with the standard setback of 30'. So without this variance I would be unable to construct
any type of dwelling on this lot. There will also be two decks, one in the front and one in the back. The one in the front
will be 10' X 12' and the one in the back will be 14', x 18'. The decks will be setback 100' or more as well.
Otter Tail County Ordinance: X Shoreland Mgmt. Sanitation. Subdivision. WECS Dock & Riparian Use Setback Ord.
Ordinance Section Citation: III. 4. A. (Structure Setbacks)_____________________________________________________________
A variance may be granted only where the strict enforcement of county land use controls will result in a "practical difficulty". A
determination that a practical difficulty exists is based upon consideration of the following criteria:
The applicant identified the following practical difficulty: The 200' setback would put the proposal near the Road, the deepest part of
the lot is 440'. The land was gifted to her by her grandfather to build and start a family and without this variance we can't build, it
pushes the proposal to far to the road.
Otter Tail County Board of Adjustment - Variance Question Findings I
1. Is the variance in harmony with the generai purposes and intent of the official control? (The board shall consider the purposes
and intent of the official control).
X Yes, the variance is in harmony with the general purposes and intent of the official control...
No, the variance is NOT in harmony with the general purposes and intent of the official control...
...because:
By having the setback at 150' and giving them a 50' variance, they are not able to meet the setback because of the easement
road and the Lot is an existing lot of record created prior to 1971.
2. Is the property owner proposing to use the property in a reasonable manner not permitted by the official control? (The
board shall consider what reasonable use of the property is lost (practical difficulties) by the strict enforcement of the official
control).
X Yes, the property owner is proposing to use the property in a reasonable manner...
No, the property owner is NOT proposing to use the property in a reasonable manner...
...because: '
The proposal is for a single-family residence, the odd shape of the lot and not being able to meetjthe standards.
3. Is the need for a variance due to the circumstances unique to the property not created by the landowner? (The board shall
consider what circumstances are unique to the property, such as lot size, lot configuration, wetland) steep slope, shore impact
zone, bluff, floodplain, floodway, etc. One or more should be stated on the record. What differentiates this parcel from others?
Does this lot have a feature that does not affect all parcels similarly ?)
X Yes, the need.for the variance is due to circumstances unique to the property not created by the landowner....
No, the need for the variance is NOT due to circumstances unique to the property not created by the landowner...
...because:
The shape of the lot.
4. Will the issuance of the variance maintain the essential character of the locality? (The board shall consider and state for the
record why the request does or does not maintain the character of the area. Is this request similar to )what others have, what are
near shore conditions of neighbors, similar sized or number of structures adjacent or in area, etc.) \
X Yes, the issuance of the variance will maintain the essential character of the locality....
No, the issuance of the variance will NOT maintain the essential character of the locality...
...because:
The Board understands the concerns people expressed in that there are no other lake dwellings on the lakeside but meeting
the requirements of the Shoreland Management Ordinance allows them to ask for a Variance which is the process in which
we govern by. <
5. Does the need for the variance involve more than just economic considerations? (The board shall consider if economics played
a role in the request. The fact that coming into compliance with the ordinance requirements may cost considerably more does
not constitute a practical difficulty).
X Yes, the need for the variance involves more than just economic considerations....
No, the issuance of the variance is only for economic considerations...
...because:
IIt is for their use and they can use their parcel for dwelling purposes, it's not for economic being, j
The Otter Tail County Board of Adjustment: APPROVES__X the requested variance.DENIES
Complete and attach After-the-Fact Addendum if this is an After-The:Fact variance request.
DATED: June 13. 2019
Board of Adjustment Chair
The Board of Adjustment may impose conditions in the granting of variances. A condition must be directly related to and must bear
a rough proportionality to the impact created by the variance. (Mitigating impervious surface with storm water management, deep
rooted vegetative buffers, rain gardens, etc.)
It is the Board of Adjustment's job to apply appropriate legal standards to a specific fact situation. Variances are meant to be an
infrequent remedy where an ordinance imposes a unique and substantial burden.
1220672
No delinquent taxes and transfer entered;
Certificate of Real Estate Value
( ) filed (X ) not required.
Cert, of Real Estate Value No.
CAROL SCHMALTZ
OTTER TAIL COUNTY
RECORDER/REGISTRAR OF TITLES
FERGUS FALLS, MN
RECORDED ON
05/13/2019 i02:51 PM
FEE; 46.00
PAGES 5
WELL CERTIFICATE REC'D: N
r-
A arof--••ii (Year)
X Wayne5t§in, County Auditor/Treasurer
C‘rf
h-
by.O'j
DeputyHiomsv/ohooo
(Top 3 inches reserved for recording data)
QUIT CLAIM DEED
Individual(s) to Individual(s)
Minnesota Unifomi Conveyancing Blanks Form 1I0.3.I (2013)
eCRV number: N/A
DEED TAX DUE: $1.65
iVil 3 :__,2019Date:f
FOR VALUABLE CONSIDERATION, Tonja Lee McKay, a single person, and Nicole Lee
Wensauer and Jeffrey A. Wensauer, wife and husband, Grantors, hereby convey and (quitclaim to
Brooklyn Wensauer, Grantee, real property in Otter Tail County, Minnesota, legally described as
follows:
SEE ATTACHED EXHIBIT A
Check here if all or part of land is registered (Torrens) □
together with all hereditaments and appurtenances belonging thereto.
1THIS DEED SHALL CONVEY ALL AFTER ACQUIRED TITLE OF THE GRANTORS.
!
TOTAL CONSIDERAl ION FOR THIS TRANSFER OF PROPERTY IS SSOOlOR LESS.
Affix Deed Tax Stamp Here
COUNTY OF OTTER TAIL
STATE OF MINNESOTA
DEED TAX $ -------UmfiNUMBER
DATE__
Otter Tail County, Minnesota 1220672 1 of 5 1
1
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Tonja LeeoVlcKay
STATE OF MFNMeS&T-A )
) ss.
COUNTY OF
Apr .'1The foregoing instrument was acknowledged before me this
by Tonja Lee McKay, a single person, Grantor.
day of .,2019,
I
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Notarial Stamp or Seal 1
Signature of Person Taking Acknowled^ent
\I
JACOB THIELGES
Notary Public
State of North Dakota
My Commission Expires Jan. 8,2021
nj^l KM" 'SL-* "O' "w'
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otter Tail County, Minnesota 1220672 2 of 5
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Nicole4^ee Wensauer
STATE OF MIKNESOTA )
COUNTY OF aTT^rTec'if )
) ss.
Tlie foregoing instnamenl was acknowledged before me tliis I T' day of ‘ / . 2019,
by Nicole Lee Wensauer, spouse of Jeffi'ey A. Wensauer, Grantor.
___Signature of Person Taking Acknowledginent
;
Noiarifll Stamp or Seal
m
RAYNEG ARNOLD
NOTART PUOJC • MINNESOTA
KF Qnnnisslon &n6a Jsa St, ^
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otter Tail County, Minnesota 1220672 3 of 5
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J^frey A. Wensauer
STATE OF MINNESOTA )
COUNTY )
The foregoing instrument was acknowledged before me this day of
by Jeffrey A. Wensauer, spouse of Nicole Lee Wensauer, Grantor. I
) ss.
' ,2019,
i'ffiNotarial Stamp or Seal
Si^ature of Person Taking Acknowled^ent
1
■^S9Qi
^SCOTT T. DUBEROWSKI
NOTARY PUBLIC - MINNESOTA
My Comm. Exp. Jan. 31,2020
■■
THIS INSTRUMENT WAS DRAFTED BY;
Thornton, Dolan, Bowen,
Klecker & Burkhammer, P.A.
1017 Broadway, P.O. Box 819
Alexandria, MN 56308-0819
File/?19-457MEB
Tax Statements for the real property
described in this instrument should be sent
to (Include name and address of Grantee):
Brooklyn Wensauer
57240 Co Hwy40
Parkers Prairie, MN 56361
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Otter Tail County, Minnesota 1220672 4 of 5
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All that part of the Northeast Quarter of tlie Northwest Quarter (NE/<iNW'/) and Goyemment
Lot Two (2), Section Fifteen (15), Township One Hundred Thirty-two (132), Range Thirty-nine
(39), Otter Tail County, Minnesota, described as follows:
i
Commencing at the North Quarter comer of said Section Fifteen (15); thence on
an assumed bearing of South along the North-South Quarter line of said Section
Fifteen (15), a distance of 1,213.99 feet to the point of beginning of the land to be
described; thence North 89“42’16" West a distance of 45.56 feet; thence
southwesterly on a non-tangential cun'e, concave to the Northwest, having a
radius of 223.01 feet, a central angle of 51“19'24" and chord bearing of Soutli
25°57'26" West, for an arc distance of 199.77 feet; thence South 51°37'08" West a
distance of 379.74 feet; thence South 38'^2'52" East a distance of 153.00 feet
more or less to the shoreline of Ellingson Lake; thence northeasterly along said]
shoreline to said North-South Quarter line; thence on a bearing of North along!
said North-Soutlr Quarter line, a distance of 457.00 feet more or less to the point
of beginning.
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Containing 2,51 acres more or less.
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Otter Tail County, Minnesota 1220672 5 of 5
Daniel & Charlene Diegnau & Timothy & Anna Deuel - Continued
Sketch of Proposed Split for Variance Application), however we do not meet the requirements for roadway. Our burden is the current
status of the road being 33.00 feet wide and an easement road. The township does not maintain this road. We attended the May n*,
2019 township meeting and the town board supports this application.
The application was represented by Maverick Larson, Compass Consultants, Charlene Diegnau & Anna Deuel. The audience was
polled with no one speaking for or against the variance as requested. A letter from Juli Klindt & Jeffrey Ryks opposing the proposal
was read for the record.
After consideration and discussion, Darren Newville made a motion, seconded by Douglas Larson and unanimously carried to approve
the variance as requested in the application dated May 20, 2019 and as depicted on the drawing submitted with the variance
application with a condition that there is suitable room for 2 septic systems on Parcel B and based on the Findings of Fact and
Decision Form, which contains the criteria reviewed and the Board’s findings have been attached to and incorporated as an official
part of the minutes which has been placed on file with the Land & Resource Management Department. The variance as approved does
not directly or indirectly grant any other variances from proposed or future development.
Brooklyn Wensauer - Variance Application Approved with Condition (8:23 p.m.)
Brooklyn Wensauer, Pt NEl/4 NWl/4 & Part GL 2...(2.51 Acres) in Nidaros Township, request the following: I’m requesting a
variance of a 100’ to construct a new dwelling with decks due to the standard setback of 200’ from the OHWL. The proposed dwelling
is 28’ X 48’ with an attached garage proposed size of 30’ x 40’. This land also features a bluff with the standard setback of 30’. So
without this variance I would be unable to construct any type of dwelling on this lot. There will also be two decks, one in the front and
one in the back. The one in the front will be 10’ x 12’ and the one in the back will be 14’, x 18’. The decks will be setback 100’ or
more as well.
The application was represented by Brooklyn Wensauer.
The audience was polled with Jeff Thommes speaking against the variance and indicated that there are currently no houses on the lake
and everyone meets the 200’setback. It’s one of the only lakes left with nobody on the lake and 1 purposely moved there for that
reason and I want to keep it that way. Jim Myrvold spoke against the variance because 100’ is too close and it’s the last lake with a
public access with no homes. Debbie Walters spoke against the variance request indicating that it’s too big of a variance and the
biggest concern is creating major run-off to the lake because of the bluff and when they build the structure and decks there will be
nothing left to absorb the rainwater. Wayne Walters indicated that when he bought his property, he was told that the County has a rule
of a minimum of 5 Acres to build on. An email from Laveme Walberg in opposition to the variance was read for the record, an email
from Gail Nordstrom opposing the variance request was read for the record and an email from Jeremy Crice was read for the record
opposing the variance request.
After consideration and discussion, a motion by Rick Wilson, seconded by Douglas Larson and unanimously carried to approve the
variance to construct a new dwelling with attached garage and 2 decks as indicated in the variance application dated May 21,2019
with the condition that the proposal needs to be setback 150’ from the ordinary high-water level and based on the Findings of Fact
and Decision Form, which contains the criteria reviewed and the Board’s finding have been attached to and incorporated as an official
part of the minutes which has been placed on file with the Land & Resource Management Department. Hardship/practical difficulty is
the unique shape of the lot. The variance as approved does not directly or indirectly grant any other variances from proposed or future
development.
Jeffrey Rowe & Dale & Marilyn Nelson - Variance Application Approved with Condition (8:47 p.m.)
Jeffrey Rowe & Dale & Marilyn Nelson, Lot 6 Block 3 - Echo Ranch Riviera 5"' Addn in Otter Tail Township, request the following:
1. We want our cabin inline with our neighbors east and west. We are requesting to be 47’ from OHWL. Required is 75’. 2 We would
like to increase maximum allowable impervious surface from 25% to 27.9%. Currently it is 38.52%
The application was represented by Dale & Marilyn Nelson.
The audience was polled with no one speaking for or against the variance as requested. A letter from Jayden Veil in support of the
variance request was read for the record and an email from Joel & Roxanne Cason in support of the variance was also read for the
record.
After consideration and discussion, a motion by Rick Wilson, seconded by Thomas Lee and unanimously carried to approve a
variance of 47’ from the ordinary high-water level for a new dwelling with the condition that the impervious surface coverage cannot
exceed 25% and based on the Findings of Fact and Decision Form, which contains the criteria reviewed and the Board’s findings have
been attached to and incorporated as an official part of the minutes which has been placed on file with the Land & Resource
June 13,2019Page I 4
LAND & RESOURCE MANAGEMENT
OTTER TAIL Government Services Center
540 West Fir Avenue
Fergus Falls, MN 56537COUNTY - MINNESOTA
Notice of Hearing for Variance
Applicant and/or applicant's representative must be present at the scheduled hearing.
To Whom it May Concern:
Brooklyn Wensauer
57240 County Hwy 40
Parkers Prairie MN 56361
Has/have made application to the Otter Tail County Board of Adjustment for a variancej as per
requirements of the Otter Tail County Shoreland Management Ordinance, the Otter Tail County Set Back
Ordinance, the Subdivision Controls Ordinance of Otter Tail County, Otter Tail County Sanitation Code
and/or the Wind Energy Conversion System Ordinance of Otter Tail County. The Otter Tail County Board
of Adjustment will assemble for this hearing on
Thursday, June 13, 2019 at 7:30 p.m.
in the Commissioner's Room of the Otter Tail County Government Services Center, Fergus Falls, MN.
(Please use the public entrance located on the northeasterly side of the Government Services Center.
The second left off Fir Ave.) Individuals requiring special accommodations should contact the Otter tail
County Land & Resource Management office prior to the date of the public hearing.
** Weather conditions may change the Hearing date and time. If bad weather occurs, piease iisten to the local Fergus Falls
Radio Stations or contact the land & Resource Management Office by 4:30 p.m. for possible reschedulirig of the Hearing.
The property concerned in the application is legally described and located at:
Parcel No. - 41000150106000
Pt NEl/4 NWl/4 & Part GL 2...(2.51 Acres)
Section 15, Township 132, Range 39
Township Name - Nidaros
Ellingson (56-178), Natural Environment (NE)
19874 Nidaros Church Drive, Clitherall MN 56524
Legal Description:
Lake Name/Number/Class:
Property Address:
The variance requested is the following:
I'm requesting a variance of a 100' to construct a new dwelling with decks due to the standard setback
of 200' from the OHWL. The proposed dwelling is 28' x 48' with an attached garage proposed size of 30'
X 40'. This land also features a bluff with the standard setback of 30'. So without this variance I would be
unable to construct any type of dwelling on this lot. There will also be two decks, one in the front and
one in the back. The on in the front will be 10' x 12' and the one in the back will be 14, x 18'. The decks
will be setback 100' or more as well.
Amy Busko
Board of Adjustment Secretary
May 30, 2019
(^) ottertailcountymn.us@OTTER TAIL COUNTY IS AN EQUAL OPPORTUNITY EMPLOYER218-998-8095
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SCALE DRAWING FORM: i-i--' !■■! •- i [- [ ; t -i iH ‘ i M' I r--M M r -i i ■ M } t ! ' i j
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Tax Parcel Number(s)1.
!The scale drawing must be a signed drawing which inciudes and identifies a graphic scaie (feet), ali existing and/or proposed structures, septic
tanks, draintieids, lotlines, road right-of-ways, easements, OHWLs, weils, wetiands and topographic features (i.e. biuffs). Must also complete the
Impervious Surface Caicuiation (see back).
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Signature of Property Ownerf Ii aiBK —042016 360^800 •• Victor Lundeen;Co4 Printers • Fergus Falls, MN • 1.-800-34i._.rl
870
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IMPERVIOUS SURFACE CALCULATION
List & identify all existing & proposed onsite impervious surfaces on scale drawing.
loft'gooLot Area (ft^):
Buildings Other Impervious Surface
Existing Proposed Existing Proposed
Ft^Ft^ Ft^Ft^
21-2DwellingDeck(s)
IS^ 20 k2£Attached Garage Patio(s)
Detached Garage Sidewalk(s)
Storage Shed Landing(s)
WOAS Driveway(s)
RCU Parking Area(s)
Miscellaneous Retaining Wall(s)
Landscaping
(Plastic Barrier)o
oMiscellaneous
O
TOTAL BUILDINGS TOTAL OTHER
Buildings
Impervious Surface
Percentage
Maximum Allowable 20%
Existing Proposed Total Lot Area Impervious
Surface
Ratio
Ft^ Ft^ Ft^Ft^Total Buildings
35 MMO loft Mot)0.022,3.100+-7-.X
Buildings + Other
Impervious Surface
Percentage
Maximum Allowable 25%
Total
Buildings + Other
Impervious Surface
Existing Proposed Total Lot Area Impervious
Surface
Ratio
Ff Ft^ Ft^Ft^
iol, .‘(ooO 0. OMol 100+■-H'X
Impervious Surface Calculation Worksheet 04-11-2016
)UnJX.k^ S/ll 11Signature:
IMPERVIOUS SURFACE CALCULATION
List & identify all existing & proposed onsite impervious surfaces on scale drawing.
loft, <^00Lot Area (ft^):
Other Impervious SurfaceBuildings
ProposedExisting
i-i2ExistmgProposed1-1.2 Ft^FtFtFt
21-2Deck(s)NXtfe iQicaDwelling
36Patio(s)Attached Garage
Sidewalk(s)Detached Garage
OLanding(s)Storage Shed
Driveway(s)WOAS
Parking Area(s)RCU
Retaining Wall(s)Miscellaneous
Landscaping
(Plastic Barrier)ooMiscellaneous
O
TOTAL OTHERTOTAL BUILDINGS
Buildings
Impervious Surface
Percentage
Maximum Allowable 20%
Impervious
Surface
Ratio
Existing
r-i2
Proposedi-i2 Total Lot Area
Ft^Ft^Ft FtTotal Buildings
3SMHo loft,<100 0.02?>S 100+-r X=
Buildings + Other
Impervious Surface
Percentage
Maximum Allowable 25%
Impervious
Surface
Ratio
Existing Proposed Total Lot AreaTotal
Buildings + Other
Impervious Surface
Ft^ Ft^ Ft^
lot) •‘tooO Ci. oftoi 100+X =
Impervious Surface Calculation Worksheet 04-11-2016
Signature:
OTTER TAIL COUNTY
Fergus Falls, Minnesota
)STATE OF MINNESOTA
) ss
)COUNTY OF OTTER TAIL
I, Amy Busko, Secretary for the Board of Adjustment for Otter Tail County, Minnesota, do hereby certify
that on the 30th day of May, 2019 the attached Notice of Hearing for Variance was duly served upon
the individuals listed below and/or included in the attachment:
Lake AssociationTownship ClerkProperty Owner
Sally Bohn, Clerk
City of Vining
PO Box 133
Vining MN 56588
Debra Biederman, Clerk
Nidaros Township
PO Box 116
Clitherall MN 56524
Brooklyn Wensauer
57240 County Hwy 40
Parkers Prairie MN 56361
City Clerk (if located within 2 miles of a city) City of Vining, Sally Bohn, Clerk, PO Box 133, Vining MN 56588
Lake Improvement District (If project is located on their lake, mail notices to the Lake Improvement District)
Big McDonald:
Devils (N
Littl§
Little Ri
Pelic
South Turtle Lake:
Big McDonald Lake Improvement Dist., PO Box 81, Dent, MN 56528
Devils Lake Imp. Dist., PO Box 431 Perham, MN 56573
UJ
riis (Ne^ Perham):S'l^^onald, Kerbs & Paul: LMKP Lakes Imp. Dist., PO Box 133, Perham, MN 56573
e I^^^Big Pine: Pine Lakes Imp. Dist., PO Box 405, Perham, MN 56573
c^, FistV Bass & Lt Pelican: Pelican Lake Group Lake Imp. Dist., PO Box 336, Pelican Rapids, MN 56572
South Turtle Lake Imp. Dist., PO Box 168, Underwood, MN 56586
Big Pine:
Otter Tail County COLA, 4302 13"^ Ave S Ste. 4-333, Fargo, ND 58103
Chuck Grotto, OTC Hwy Engineer, 505 S Court St Suite #1, Fergus Falls, MN 56537
Julie Aadland, DNR Eco & Water Resources, 1509 1®' Ave N, Fergus Falls, MN 56537
Board of Adjustment Members:
Ken Vorderbrugen, 20901 County Hwy 65, Henning MN 56551
R. Stephen Schierer 32117 260"^ Ave, Erhard MN 56534
Thomas (Tom) Lee, 15600 County Hwy 118, Elizabeth MN 56533-9559
Darren M Newville, 614 6'^ St NE, Perham, MN 56573
Douglas Larson, 2118 Woodland Ln., Fergus Falls MN 56537
Planning Commission Member: Jack Rosenthal, PO Box 266 Ottertail MN 56571
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, properly addressed to each of the individuals listed
above and/or listed in the attachment.Number of Notices &
Envelopes to Print
1FileDated: May 30, 2019
kExtra
BOA Members 6_____
PC Memberj
Envelopes U
TOTAL NOTICES TO PRINT__
IVK] Added to Agenda
Print out Findings of Fact Sheet
Newspapers f^FDT _________
Amy Busko, Secretary
Otter Tail County Board of Adjustment
Amy Bgfeko
FOFBy:
l;\BOA\Affidavits\Wensauer.docx
Amy Busko
Sheila Dahl
Thursday, June 13, 2019 8:00 AM
Amy Busko
FW: 41000150106000
From:
Sent:RECEIVED
JUN 2019
! AND&RESOURC'
To:
Subject:
Please see below.
Thank you,
Sheila Dahl
Administrative Assistant
Land and Resource Management
540 W Fir Ave
Fergus Falls MN 56537
Direct 218-998-8107 | Office 218-998-8095
ottertailcountymn.us
OTTER TAIL
COUNTY MINNESOTA
From: zonkOOS <zonk005@yahoo.com>
Sent: Wednesday, June 12, 2019 5:57 PM
To: Otter Tail County Land <land@co.ottertail.mn.us>
Subject: 41000150106000
We just received this notice tonight. We are apposed to this variance. The regulations were made for
everyone, not just those that are land owners for many years.
Laverne Walberg
19729 Nidaros Church Drive
Clitherall, MN 56524
Sent via the Samsung Galaxy NoteS, an AT&T 5G Evolution capable smartphone
1
Brittany Walters
received
JUN 1 2 20»
.AMO & RESOURC
Gail Nordstrom <gailnordstrom@yahoo.com>
Wednesday, June 12, 2019 9:51 AM
Otter Tail County Land
Variance for Parcel Number 41000150106000
From:
Sent:
To:
Subject:
Otter Tail County Board of Adjustment,
I am writing to express my objection over the variation requested for Parcel Number 41000150106000. As a
property owner along Lake Ellingson, the variance raises great concerns for me, outlined below.
-- This is the first dwelling proposed along Lake Ellingson. If approved, the variance sets a precarious
precedence for any future development around the lake. Enforcing the 200-foot set-back from the OHWL
would be difficult to justify to other landowners wishing to build near the shoreline.
The variance is extreme, requesting to cut the 200-foot set-back by 100 feet.
- The 200-foot set-back restriction is not new. The property title appeared to transfer sometime after
property tax payments were made in 2018.* The current owner would have been aware of the building
restrictions when purchasing the modest-sized, picturesque parcel.
- Hundreds of anglers enjoy Ellingson Lake year-round. My husband and I enjoy kayaking on the lake. In the
winter, the lake becomes a winter playground for my family and friends, my dogs, and me. Current building
regulations were put in place to curb development and ensure that the beauty of the lake is retained.
- Fish, water fowl, mammals, reptiles, and amphibians thrive in and on the lake. Development so close to the
shoreline risks disrupting this delicate circle of life.
My husband and I purchased property along Lake Ellingson in 2001, then purchased a home in 2005. We have
been living and working fulltime in Otter Tail County since 2010. We chose Lake Ellingson for its wildness and
beauty, confident that building regulations would help ensure that this wildness and beauty would be retained
well into the future.
I recognize that property development is inevitable along lakes in Otter Tail County. However, retaining the
pre-determined dwelling set-back is crucial, especially in the development of smaller, natural environment
lakes. Please help retain the magic of Lake Ellingson by rejecting the variance request.
Respectfully,
Gail Nordstrom
19595 Nidaros Church Drive
Otter Tail County
* This information was found on the Otter Tail County Property Tax website
(http://www.ottertailcounty.us/ez/publicsearch.php). Sales data has not been posted for the property.
1
Brittany Walters
Jeremy Crice <jcrice@crice.com>
Wednesday, June 12, 2019 3:03 PM
Otter Tail County Land
jcrice@crice.com
Parcel 41000150106000
From:
Sent:
received
JUN 1 2 2019
-AND & RESOURC
To:
Cc:
Subject:
No to the Variance request. Parcel#41000150106000
To Whom it may concern:
My name is Jeremy Crice and I am the father of 3, with one now an adult with autism. I work from home with providing
Independent living skills to people with specials needs and help small businesses with Information Technologies
obstacles.
My mother was born and raised in Vining, MN as one of 10 children.
Our family has enjoyed living at 19901 Nidaros Church Drive with the beauty of our spring fed lake with exceptional
breeding grounds to our state bird, ducks, swans and other wildlife. The lake provides an unspoiled view of what
Minnesota has to offer people. I have raised a family here and we absolutely love our view which is one of the main
reasons we moved here.
We enjoy the beauty of Ellingson Lake and views it provides as a constant reminder of how someday sadly all lakes may
have homes on them if we don't stop people from building on limited setbacks. I am against any form of building on the
lake because we have nobody that has a residence on the lake for starters and the environmental affect could be long
term to the lake. This is a phenomenal natural wildlife setting, and what I would consider a fragile piece of Ottertail
County.
Lake Ellingson has for short periods in small groups of up to 20 Loons in late summer and fall. As you may know most
small lakes generally accommodate 1 pair of breeding loons with each occupying a bay or a section of the lake. Amazing!
If you have ever visited Ellignson during the winter you will find the best pan fishing in a beautiful serene area that has
been unblemished by people wanting to build on the lake. We love this lake!
I have spoken to Mr. Christopherson on several different occasions about my concerns of his relatives building on lake
Ellingson. His response has been "Make me an offer I can't refuse". My offer is please consider doing the right thing and
don't ruin our lakeshore, views, wildlife or risk any environmental impact of having a residence there.
Leave Lake Ellingson an untouched part of Nidaros because this is a gorgeous area and we should protect it for others to
enjoy for years to come. Elligson is only 19 feet deep and has a completely open 2.7 miles of shore.
No homes reside on the lake.
Respectfully,
Jeremy Crice
Jeremy Crice
1
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Principal Owner
520-233-1147 (m)
www.cricec.com
W:
y
“Finding Exceptional Companies Exceptional Candidates”
1
III.
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2
Buffer Parcels
Parcel No Name 1 Addr 1 Addr 2Name 2 Citv St ZiD
Brooklyn Wensauer Et Al41000150106000 57240 County Highway 40 Parkers Prairie MN 56361 4651
41000150106005 , Jeremy N & Douglas Crice Clitherall MN 56524 953219901 Nidaros Church Rd
41000150106006 William T & Debra S Walters Clitherall MN 56524 953219821 Nidaros Church Dr
i
i 41000150106007 Duane L & Shirley M KneisI Battle Lake MN 56515 4077605 Lake Ave N Apt 207
41000150106008 Jeffrey & Iva Thommes Clitherall MN 56524 953419070 Nidaros Church Dr
41000150108000. Matthew V & Christine Myrvold ,, 4009 Carmell PI West Fargo ND 58078 8282 :
Wednesday. May 22. 2019 Page 1 of 1
Buffer Mail
City, State, ZipAddress 2Address 1Name
Parkers Prairie MN 56361 465157240 County Highway 40Brooklyn Wensauer Et Al
Clitherall MN 56524 9532Jeremy N & Douglas Crice 19901 Nidaros Church Rd
Battle Lake MN 56515 4077Duane L & Shirley M KneisI 605 Lake Ave N Apt 207
West Fargo ND 58078 8282Matthew V & Christine Myrvold 4009 Carmell PI
Clitherall MN 56524 953419070 Nidaros Church DrJeffrey & Iva Thommes
Clitherall MN 56524 953219821 Nidaros Church DrWilliam T & Debra S Walters
Page 1 of 1Wednesday, May 22, 2019
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DISTRICT COURTSTATE OF MINNESOTA
SEVENTH JUDICIAL DISTRICTCOUNTY OF OTTER TAIL
I
Court File No. 56-CV-19-1992Jeremy Crice, William Walters, Debra
Walters, Jim Myrvold, Claudia Myrvold,
Matthew Myrvold, Jim Pratt, and Gail
Nordstrom,
Appellants,
vs.
Otter Tail County, by and through its
Board of Adjustment, and Brooklyn Wensauer,
Appellees.
I
AFFIDAVIT OF CHRIS LECLAIR
STATE OF MINNESOTA )1
):SS
COUNTY OF OTTER TAIL )
Chris LeClair, after being first duly sworn upon an oath, does hereby depose and
state that:
I am the director of Otter Tail County Land and Resource Management.1.
Attached as Exhibit 1 is a true and correct copy of the Otter Tail County2.
Subdivision Controls Ordinance, which was adopted by the Otter Tail County Board of
Commissioners in 1981.
I
IUnder the 1981 Ordinance, subdivision lots were required to be a minimum3.
of 2.5 acres in order to qualify as a buildable site.
The current Otter Tail County Subdivision Controls Ordinance, adopted by4.
the Otter Tail County Board of Commissioners in 1997, requires subdivision lots within
the Shoreland District to be at least 5 acres.
FURTHER YOUR AFFIANT SAYETH NOT.
Chris LeClairSubscribed and sworn to before
me this 31st of January 2020.
Notary Public
Stamp and/or Seal
SHEILA K. DAHL
. Jy Notary Public-Minnesota
My ComnMMien Jan 91,2025
2
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56-CV-19-1992Electronically Served
3/18/2020 9:47 AM
Otter Tail County, MN
!
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FDed in District Court
State of Minnesota
District CourtState of Minnesota
Otter Tail County Seventh Judicial District i
Mar 18 2020 9:49 AM Court File Number: 56-|CV-19-1992
Case Type; Appeal from Administriative Agency1
Notice of:
X , Filing of Orderl
X Entry of Judgment
I Docketing of Judgment
I
FILE COPY
i i
In re the Matter of Jeremy Crice, William Walters, Debra Walters, Jim Myrvold, Claudia Myrvoldet. al. and the
Commissioner of Otter Tail County Dept - AUDITOR, Brooklyn Wensauer !1
;You are hereby notified that the following occurred regarding the above-entitled matter;i
I
'2^ \ An Order was filed on March 13, 2020.
"X"" Judgment was entered on March 18,2020.
i i; You are notified that judgment was docketed on
at in the amount of $. Costs and interest will accrue on this amount from the date
entry until the judgment is satisfied in full.
;t
i!of
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Dated; March 18, 2020 Kathryn A. Ouren
Court Administrator
Otter Tail County District Court
121 W. Junius Ave.
Fergus Falls MN 56537
218-998-8420
I
TAMI LYNNORGARD
JASON JAMES KUBOUSHEK
1cc:1
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A true and correct copy of this Notice has been served pursuant to Minnesota Rules of Civil Procedure, Rule 77.04.
I
1
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i Rev. 09/2013MNCIS-eiV-142 STATE Notice
II
)
J
I {J 1456-CV-19-1992Electronically Served
3/18/2020 9:47 AM
Otter Tail County, MN
!;
Filed in District Court
State of Minnesota
■:
'i;i;IN DISTRICT COURTSTATE OF MINNESOTA
!:Mar 18 2020 9:47 AM SEVENTH JUDICIAL DISTRICTCOUNTY OF OTTER TAIL
!!
Jeremy Crice, William Walters, Debra
Walters, Jim Myrvold, Claudia Myrvold,
Matthew Myrvold, Jim Pratt, and Gail
Nordstrom,
!
ORDER AND MEMORANDUM
AFFIRMING VARIANCE
Appellants,
Filed In District Court
State of Minnesota
VSv,
■Otter Tail County, by and through its Board
Of Adjustment, and Brooklyn Wensauer,
Board of Adjustment,
I'March 13, 2020!;
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;Court File No. 56-CV-19-1992Respondents.1
On March 2, 2020, the above-entitled matter came on before the undersigned Judge of f?
District Court, at the Otter Tail County Courthouse, in Fergus Falls, Minnesota, for Oral
IArgument, pursuant to the Notice of Appeal (Doc. 1; July 12, 2019). The parties submitted a
istipulated record (Docs. 19-20; Nov. 15, 2019), which was supplemented by an affidavit
submitted by Appellants (Doc. 23; Jan. 10, 2020), and an affidavit submitted by Respondent-
Board (Doc. 26; Jan. 31, 2020). Appellants submitted a brief in support of the appeal (Doc. 22;
Jan. 10, 2020); Respondent-Board submitted a brief in response (Doc. 25; Jan. 31, 2020); and
j
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-;Appellants submitted a reply (Doc. 27; Feb. 14, 2020). Appellants appeared at hearing and were
represented by attorney Tami Norgard. Attorney Jason Kuboushek appeared on behalf of the r
Board. Respondent-Landowner appeared personally without representation. Counsel made
arguments orally and on the record. Based on the pleadings, the record, the memoranda, the
arguments of counsel, and the applicable law, the Court now makes the following:
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56-CV-19-1992
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iCrice, et al. v. Board of Adjustment
56-CV-19-1992 ! .
!;ORDER
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:I. The decision of the Otter Tail County Board of Adjustment granting Brooklyn
i
Wensauer’s application for a setback variance, as modified thereby, is herebyI
;AFFIRMED.
2. The attached MEMORANDUM is hereby incorporated by reference herein.
i!
'!LET JUDGMENT BE ENTERED 'i
Dated this 13th day of BY THE COURT:.2020,,
.^■;v
■ ;Honorable Sharon G. Benson
Judge of District Court
Court File No. 56-CV-19-1992
JUDGMENT
1
I hereby certify that the foregoing Order constitutes the Judgment of the Court.
1I
COURT administrator!Dated:
li
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;By:
Deputy Court Administrator 1iI', ■,
Mar 18 2020 9:47
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456-CV-19-1992
Crice, et al. v. Board of Adjustment
56-CV-19-1992
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MEMORANDUM
Respondent-Board granted a variance permitting construction of a new dwelling closer to
the water than permitted by the setback requirements of the Shoreline Management Ordinance.
Appellant-Neighbors appeal that decision, arguing (1) that the Board abused its discretion when
I
it granted the variance, and (2) that the parcel in question is too small to be a “buildable lot.”
Because the Board acted within its discretion, and because the lot meets the current area and
I
width requirements for construction, the Court affirms.
!
Facts i
4
Landowner, Brooklyn Wensauer, is the owner of 2.51-acre parcel of land located along
the shore of Ellingson Lake. That lake is classified as a Natural Environment Lakejunder Otter
s
Tail County’s zoning controls, meaning that development is subject to the most-restrictive
V
requirements found in the Otter Tail County Shoreland Management Ordinance. The lot is
1irregularly shaped in two regards. First, the lot is generally shaped like a truncated right triangle.
IOne side runs straight north-south. The other side runs roughly east-west along the lake shore.
i
And the hypotenuse follows a bend on Otter Tail County Highway 29. The southwest corner of
i the triangle is truncated at a point where the lakeshore bends to run approximately]parallel to the
highway. Second, the lot is irregular in that it includes a strip of land, only thirty feet wide, along
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the far side of Highway 29
Based on the fact that the lot follows a bend in Highway 29, it is clear that the highway
pre-existed the creation of the lot, and the inclusion of the thirty-foot strip of land bn its opposite
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side was intentional. Due to the shape and dimensions of the lot, as well as the placement of the
highway within the lot, it is not practically possible to construct a dwelling on thejlot without a
variance from the setback requirements of the Shoreland Management Ordinance,] which requires :>
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56-CV-19-1992
I
Crice, et al. v. Board of Adjustment
56-CV-19-1992
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a 200-foot setback from the Ordinary High Water Line, as well as a 30-foot setback from the
highway. See Ordinance § III.4.A (table at OHWL, NE; Road Right-of-Way, NE).
IThis lot was initially created as a separate parcel in 1989 and was first recorded as an
I
existing lot in 1992. See Aff. Johnson. At the time of the creation of the lot, the Otter Tail
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County Subdivision Controls Ordinance allowed the creation of separate lots as small as two-i
and-a-half acres in area. See Aff LeClair. As such, the lot was valid at the time of its creation.
Currently, however, the Otter Tail County Shoreland Management Ordinance only permits the
creation of new meets-and-bounds lots that are at least five acres in area. See Ordinance §
rV.lO.B. As such, the lot could not be created today without going through the platting process.
Id. Nonetheless, the area of the lot exceeds 80,000 square feet, which is the minimum lot area
Irequired in order to build a single-family residence on a Natural Environment lakeJ See
Ordinance § III.3 (table at Riparian Lots, Lot Area, Single Family, NE). And it is cleEir from the
I r
legal description of the lot that its narrowest width, which is along the lakeshore, is sufficient toI
1
meet the 200-foot minimum width and frontage required in order to build a single-family
residence on a Natural Environment lake. See Ordinance § 1II.3 (table at Riparian Lots, Water
Frontage and Lot Width, Single Family, NE).
■ f.
;Shortly after her acquisition of the parcel. Landowner applied to the Otter Tail County
Board of Adjustment for a 100-foot variance from the Shoreland Management Ordinance’s
requirement of a 200-foot setback from the shoreline. At the hearing, several neiglibors spoke
against the variance, and several letters opposing the variance were read into the record.
I
Concerns were raised that the dwelling would contribute to loss of water quality, dnd that it
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would block the lake view enjoyed by neighbors. One speaker noted that there are no other
dwellings located directly on Lake Ellingson. Rather, the neighbors are all located on the side of
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56-CV-19-1992 I
Crice, et al. v. Board of Adjustment
56-CV-19-1992
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Highway 29 opposite the lake. William Walters, one of the Appellants, raised the issue of the lot
;
being less than five acres in size. A member of the Board responded that this would not be an
issue if the lot was an existing lot in 1971, an apparent reference to an exemption in the
Shoreland Management Ordinance permitting structures to be erected on lots that do not meet the
ordinance’s minimum area and width requirements if the lot predated the ordinance itself. See
Ordinance § 1V.13.B. Landowner correctly represented that the lot was an existing jlot, but
erroneously represented that the lot had existed for more than a hundred years.
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!At the conclusion of the hearing, a motion was made to approve the variance, but with
only a 50-foot variance from the shoreline setback. In other words. Landowner would be r
permitted to build 150 feet from the shoreline, rather than the 100 feet she had requested. The i
iBoard voted unanimously to approve the variance as amended. As part of approving the i ■
variance, it filled out a checklist-type form containing questions drawn from the state statute
governing variance requests. Appellants, Jeremy Crice, Claudia Myrvold, Jim Myijvoldi Matthew
JMyrvold, Gail Nordstrom, Jim Pratt, Debra Walters, and William Walters, are neighbors who
now challenge the Board’s decision to grant the variance.
!
Legal Analysis
;:Standard of ReviewI.
Any person aggrieved by the decision of a board of adjustment to grant or deny a
variance may appeal that decision to the district court. Minn. Stat. § 394.27, subd.j9. A district
court reviews the decision of a municipal board to grant or deny a variance for an abuse of
discretion. The court asks whether the board “was within its Jurisdiction, was not mistaken as to
j
the applicable law, and did not act arbitrarily, oppressively, or unreasonably, and J.. whether the
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56-CV-19-1992
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Crice, et al. v. Board of Adjustment
56-CV-19-1992
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)evidence could reasonably support or justify the [board’s] determination.” In re Sta^vold, 754
jN.W.2d 323, 332 (Minn. 2008). The fact that^a court might have reached a different conclusion,
had it been a member of the board, does not mean that the board acted unreasonably, or that its
decision was arbitrary or capricious. White Bear Docking & Storage, Inc. v. City of White Bear
Lake, 324N.W.2d 174, 176 (Minn. 1982).
1
The board must “articulate the reasons for its ultimate decision, with specific reference to
relevant provisions of its zoning ordinance.” Stadsvold, 754 N.W.2d at 332 (quoting
Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460, 463 (Minn. 1994)); Sawf v. City of
Lino Lakes, 823 N.W.2d 627, 635 (Minn. 2012) (granting deference if authority explained “how
i'.-S
it derived its conclusion”). “The board’s use of a checklist is a sufficient expression, of the
board’s conclusion that the conditions for approval have been met.” Schwardt v. Cty. of
Watonwan, 656 N.W.2d 383, 389 (Minn. 2003); see also Davis v. Le Sueur Cty. Planning &
jZoning Bd. of Adjustment, 2018 WL 2407262 (Minn. App. May 29, 2018) (unpub ished)i
(findings of fact form); Nesvigv. Crow Wing Cty., 2011 WL 3557871 (Minn. App|. Aug. 15,
1
2011) (unpublished) (written checklist); Harris v. City of Wabasha, 2010 WL 2265934 (Minn.
1)
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App. June 8, 2010) (unpublished). A municipal board’s factual conclusions are giVen deference .*I
so long as they have even the “slightest validity.” White Bear Docking & Storage, 324 N. W.2d at
176; see also Roselawn Cemetery v. City of Roseville, 689 N.W.2d 254, 261 (Minn. App. 2004).
5
Basis for the VarianceII.1
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State law provides that a county board of adjustment shall have the power to issue
they are invariances. Minn. Stat. § 394.27, subd. 7. “Variances shall only be permitted when
harmony with the general purposes and intent of the official control and when the variances are
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56-CV-19-1992
Crice, et al. v. Board of Adjustment
56-CV-19-1992 ir
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consistent with the comprehensive plan.” Id. And variances may be granted only when there are
“practical difficulties in complying with the official control.” Id. “Practical difficulties” are
present when: (1) “the property owner proposes to use the property in a reasonable manner not
■;permitted by an official control;” (2) “the plight of the landowner is due to circumstances unique
to the property not created by the landowner;” and (3) “the variance, if granted, will not alter the
I
essential character of the locality:” Id. “Economic considerations alone do not constitute practical
difficulties.” Id. And a county board of adjustment may impose conditions upon a variance if
those conditions are sufficiently related to the variance. Id. This same “practical difficulties”
istandard articulated in state statute is also repeated in the Shoreland Management Ordinance.5
Ordinance § V.6.
j
\Appellants argue that the Board did not, and could not, make findings adequate to support
two of these factors. First, they argue that the Board erred in determining that the \jariance
I
request was “in harmony with the general purposes and intent of the official control.” The Court
disagrees. The Board considered the request for a 100-foot setback variance, and rejected that
request in favor of 50-foot setback variance. The Board found that this variance was appropriate f.
because the shape of the lot and the placement of the road made it impractical to meet the 200-
i
ifoot setback requirement. This is the type of variance that is routinely granted as long as there is
some particular feature of the specific property in question that makes strict compliance with the
official controls impractical. And the Board did find that the irregular shape of theilot — which
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clearly results in large part from the curve of the lakeshore and the bend of the roadway
unique circumstance not attributable to Landowner. If Appellants were correct that a variance
>.— was a j
given under such circumstances is not in harmony with the official controls, then the
circumstances justifying a variance would be virtually nonexistent.i
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Crice, et al. v. Board of Adjustment
56-CV-19-1992
Relatedly, Appellants argue that the Board failed to support its conclusion with any
reference to the Shoreland Management Ordinance’s statement of purpose. The ordinance
Iprovides that its purpose “is to regulate the use and orderly development of shorelands in Otter
Tail County, to prevent and eliminate pollution of public waters and to maintain historic values
of significant historic sites in the unincorporated areas of Otter Tail County, and to preserve and
enhance our natural resources....” Ordinance § 1.2. The Board did hear concerns about
imaintaining the water quality of Lake Ellingson, including commentary that the requested
jsetback variance would contribute to excessive runoff because it was too large. The Board also
reviewed the details of Landowner’s proposed construction, including the amount of =
!
impermeable surfaces proposed. The Board’s response to this was to modify the variance
application. Although the Board did not make specific reference to ordinance’s statement of
purpose, it is clear that the Board’s action was not arbitrary or capricious. It is apparent that the
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concludedBoard considered the effect that the variance would have on water pollution, and itI
'i that a 50-foot variance was sufficient to address that concern. The Board was entitled to rely on ;i
|:its own common sense, lay experience, and judgment, since zoning decisions need not rely on
expert determinations. Cf. RDNT, LLC v. City of Bloomington, 861 N.W.2d 71, 77j(Minn. 2015).
Next, Appellants argue that the Board erred in determining that the variance would riot
affect the essential character of the locality. In particular. Appellants lean heavily on the fact that
there are currently no other dwellings on the lake itself. The Board’s formal finding on this factor
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was: “The Board understands the concerns people expressed in that there are no other lake
dwellings on the lakeside[,] but meeting the requirements of the Shoreland Management
Ordinance allows them to ask for a Variance which is the process in which we gov'em by.” It is
clear from the record that the Board implicitly determined that the current lack of dwellings on
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ithe lakeshore is not part of the essential character of the locality. That determination was not
erroneous. This is a residential area which includes other homes near the lake, even if those
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homes are not directly on the lake. Moreover, there is nothing in the official controls that would
prevent other development on the lakeshore. The particular lot at issue in this case faces
difficulties because of the closeness of Highway 29 to the shoreline, which causes the setback
requirements to overlap. But Highway 29 does not encircle the entirety of Lake Ellingson. Thus,
there are other spots on the lake where development would be permissible without any variance
from the setback requirements, either with respect to the lakeshore or with respect to the road.
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In addition. Appellants argue that the Board erred in failing to address supplemental
considerations listed in the Shoreland Management Ordinance. In addition to the factors listed in
state law. Otter Tail County’s ordinance also provides that “[i]n considering variance requests,
the Board of Adjustment way also consider:” (1) “[wjhether the variance will secure for the
applicant a right or rights that are enjoyed by other owners in the same area;” (2) “[wjhether
existing sewage treatment systems on the property need upgrading before additional
development is approved;” and (3) “[wjhether granting the variance will be contrary to the public
interest or damaging to the rights of other persons or to property values in the neighborhood.”
Ordinance § V.6.H (emphasis added). “No variance shall be granted simply becaus|e there are no
objections or because those who do not object outnumber those who do.” Ordinance § V.6.H.4.
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The Minnesota Supreme Court previously analyzed a prior version of Otter Tail County’s
ordinance, and it concluded that the Board was required to specifically address these factors.
Stadsvold, 754 N.W.2d at 332. However, the ordinance has since been amended, so that
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consideration of these factors is now permissive, rather than mandatory. See MinnJ Stat. §I'i1
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645.44, subds. 15-16 (“‘May’ is permissive.... ‘Shall’ is mandatory.”). Thus, the Board argues
that it is no longer necessary for it to address these factors if its members decline to do so.
Even if the Court were to require consideration of these permissive factors, there is only
one fact which Appellants argue was relevant. They argue that granting the variance will damage
the rights they enjoy, and diminish their property values, because their views of thej lakeshore
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will be impeded. The Court holds that the record demonstrates adequate consideration of these
concerns. There was no evidence in the record that any particular property owner vvould have his
or her view of the lake obstructed in any distinctive way. There is no evidence that, for inst^ce.
Landowner’s proposed home would lie directly between the lake and the home of any objecting!
neighbor. Rather, the concern appears to have been only a general concern that every view in the
neighborhood would be affected by having a dwelling anywhere on the lake. It is clear that the
Board considered this concern when it addressed whether the variance would affect the essential
!I character of the neighborhood. Given the minimarnature of this harm, the Board could rationally
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!exercise its discretion not to give further consideration to this concern.1
ni. Lot Area Requirements
Separately, Appellants argue that the Board erred in granting a variance to Landowner
because her lot is not a “buildable lot.” This argument conflates two separate typesjof controls on
? .Idevelopment — restrictions on how and when lot subdivision cem take place, on one hand, and
i.restrictions on new construction, on the other. The provision cited by Appellants is, in fact, a5
control which places restrictions on the subdivision of existing lots of record. The current
ordinance provides that “[a]ll subdivisions with lots or parcels that are less than 5 acres in size
must be platted in accordance with Minnesota Statutes 505” and that “[n]o conveyance or other
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document creating a subdivision of any real property other than by a duly approved plat, shall be
recorded, unless accompanied by a registered surveyor’s drawing for recording.” Ordinance §i-
IV.IO.B. This is a restriction on creating new lots of record by dividing existing lots of record. If
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require the platting procedure to be followed.II
*But Landowner is not attempting to subdivide her land. Her lot was created |long ago,
when it was legal to do so without going through the platting procedure. See Aff. Johnson; Aff.
LeClair. She is only attempting to build on that existing lot. Appellants do not point to anything
in the Shoreland Management Ordinance which says that construction cannot occur on an
existing lot simply because that lot could not be created unilaterally today. Indeed, the ordinance
does the opposite. It explicitly provides minimum lot areas and lot widths which are specifically
applicable to new construction. See Ordinance § III.3; see also Ordinance § IV.IO.C (same
requirements apply to new plats). For a single-family dwelling on a Natural Environment lake, a
minimum lot area of 80,000 square feet, a minimum buildable area of 8,400 square feet, and a
minimum frontage of 200 feet are required. These are significant restrictions, but they fall well
Ishort of the five-acre minimum area required for new subdivisions. Because Landowner’s lot
meets these requirements, it is a “buildable” lot — even though the lot could not now be created
without following the platting procedure, or else obtaining a variance from that requirement.
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Appellants discuss various authorities on the subject of vested rights and the *
grandfathering of existing nonconformities. But this discussion is beside the point because there
is no nonconformity. The mere existence of a lot that would need to go through the platting
process in order to be created today is not itself a nonconformity. Landowner’s new construction
will not be a nonconformity with respect to the governing ordinance’s lot-area requirements for
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new construction. Rather, Landowner proposes to conform with these requirements. Her
proposed dwelling will deviate only from the setback requirements. And the Board provided
adequate consideration of that deviation before granting the variance in this case, i
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The decision of the Board of Adjustment is Affirmed.!t
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