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HomeMy WebLinkAbout17000990973000_Variances_10-12-2017Amy Busko Wayne Stein Tuesday, January 22, 2019 8:58 AM Chris LeClair; Kyle Westergard; Marsha Bowman; Amy Busko; Michelle Jevne; Sheila Dahl; Brittany Walters; Denise Gubrud; Jessica Fosberg; Eric Babolian; Tyler Marthaler; Ben Olson; Michelle Eldien; Julie Bakken; Brent Salverson; Kim Mark; Tara Jeffries RE; January 10, 2019 Board of Adjustment minutes Board of Adjustment Minutes 01102019 Revised.pdf From: Sent: To: Subject: Attachments: January 22, 2019 Revised - Correct a couple of typos. Sincerely, Wayne Stein, County Auditor-Treasurer Government Services Center 510 Fir Ave W. Fergus Falls, MN 56537 JV vTt Office Line-218 998-8030 Direct Line-218 998-8041 w] 9oTJ,*8.....ot.Tflil From: Wayne Stein Sent: Saturday, January 12, 2019 1:26 PM To: Chris LeClair <cleclair@co.ottertail.mn.us>; Kyle Westergard <KWesterg@co.ottertail.mn.us>; Marsha Bowman <MBowman@co.ottertail.mn.us>; Amy Mark <ABusko@co.ottertail.mn.us>; Michelle Jevne <MJevne@co.ottertail.mn.us>; Sheila Dahl <sdahl@co.ottertail.mn.us>; Brittany Walters <bwalters@co.ottertail.mn.us>; Denise Gubrud (DGubrud@co.ottertail.mn.us) <DGubrud@co.ottertail.mn.us>; Jessica Fosberg <Jfosberg@co.ottertail.mn.us>; Eric Babolian (EBabolia@co.ottertail.mn.us) <EBabolia@co.ottertail.mn.us>; Tyler Marthaler <tmarthal@co.ottertail.mn.us>; Ben Olson <bolson@co.ottertail.mn.us>; Michelle Eldien <MEIdien@co.ottertail.mn.us>; Julie Bakken <Jbakken@co.ottertail.mn.us>; Brent Salverson <bsalvers@co.ottertail.mn.us>; Kim Mark (KMark@co.ottertail.mn.us) <KMark@co.ottertail.mn.us>; Tara Jeffries <tJeffrie@co.ottertail.mn.us> Subject: January 10, 2019 Board of Adjustment minutes January 12, 2019 Please find attached the minutes from the January 10, 2019 Board of Adjustment meeting. Sincerely, Wayne Stein, County Auditor-Treasurer Government Services Center 510 Fir Ave W. Fergus Falls, MN 56537 1 MINUTES OF THE MEETING OF THE OTTER TAIL COUNTY BOARD OF ADJUSTMENT Thursday, January 10,2019 The Otter Tail County Board of Adjustment met in the Commissioners/Otter Tail Lake Room at the Government Services Center on Thursday, January 10,2019, with the following persons in attendance: Steve Scliierer Darren Newville Ken Vorderbrugen Jack Rosenthal Thomas Lee Doug Larson Chris LeClair, Land and Resource Management Kyle Westergard, Land and Resource Management Kris Vipond, Deputy Auditor-Treasurer Jason Kuboushek, Attorney with Iverson Reuvers Condon appointed to represent Otter Tail County In attendance in the gallery: Michelle Eldien, Otter Tail County Attorney Marsha Bowman, Land and Resource Management Dirk Lenthe, Applicant’s Representative Louis Hoglund, Pelican Press Julie Aadland, DNR Ben Olson, Assistant County Attorney Wayne Johnson, County Commissioner Carl Malmstrom, Attorney for Applicant Judd Fischer, Planning Commission Member Lee Rogness, County Commissioner Called to Order - Steve Schierer, Chair called the meeting of the Board of Adjustment to order at 5:09 p.m. Minutes Approved - The Board of Adjustment approved the minutes of the December 13, 2018 meeting as mailed. Election of Officers - Thomas Lee made a motion, seconded by Darren Newville and unanimously carried to appoint Steve Schierer as Chair. Darren Newville made a motion, seconded by Ken Vorderbrugen and unanimously carried to appoint Thomas Lee as Vice- Chair. The Board of Adjustment considered the following application for variance: Lepetomane Properties LLC - Denied. (5:12 p.m.) Lepetomane Properties LLC, part of Lots 44 and 45 Provan Beach, Pelican Lake in Dunn Township, requested the following: The statue is about 5’ over allowed height - 20 feet. Statue also needs to be closer than the shore line limit - 75’ - to be visible from lake. Being 25’ in height, 10’ from the ordinary high-water level and 0’ from the top of the bluff (roadside of existing park bench). Chairman Schierer turned the meeting over to Attorney Jason Kuboushek to review the history of the application and to go over the factors that should and should not be considered when reviewing the application. The applicant was present and represented by Attorney Carl Malmstrom. The audience was polled with no one speaking for or against the variance as requested. After discussion and consideration, Darren Newville made a motion, seconded by Jack Rosenthal and unanimously carried, by show of hands, to deny the variance as requested with the Variance Question Findings included in the motion as noted on Findings of Fact and Decision form. The Findings of Fact and Decision Form , which contains the criteria reviewed and the Board’s finding has been attached to and incorporated as an official part of the minutes and has been placed on file with the Land and Resource Department. With no further business, Steve Schierer, Chairman declared the meeting adjourned at 5:52 p.m. Prepared by: Kris Vipond, Deputy Auditor-Treasurer Chris LeClair DirectorOTTER TAIL COUNTY LAND & RESOURCE MANAGEMENT PUBLIC WORKS DIVISION WWW.CO.OTrER-TAIL.MN.US Kyle Westergard Asst. DirectorOTT€R mileofCTr’afsttfOTM 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 ststss LA-stji-gAddress/Parcel No.Applicant: Requested Variance: 5<TA»T\>>g ^'ScoT S ‘F~CS£ L. ^»fi^fTo£ -Te.-»g ta-WSA TAfe ~5g~ n/iS VF^lj£ zs~' ,(J , lb' fPc-NJ- 'MS lOA-FM Vt'iM b' -rep 6?= T-»te ‘|»lcFI= L^+>.D5»0E ^ EiehA‘M'i Otter Tail County Ordinance; /itShoreland Mgmt. 1.1 Sanitation. I. . Subdivision. L WECS r. Dock & Riparian Use 11 Setback Ord. Ordinance Section Citation: ill ^ So b ^ 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: D> i FPt c,0 Lnt-f PCSSDLTL DN KVCRITERIA / BOARD OF ADJUSTMENT MEMBER 1. Is the variance in harmony with the general purposes of the official control? 2. IS the property owner proposing to use the property in a reasonable manner not permitted by an official control?a/ 3. Is the need for a variance due to the circumstances unique to the property not created by the landowner or prior landowners?a3 rJ4. Will the issuance of the variance maintain the essential character of the locality? 5. Does the need for the variance involve more than just economic considerations? Facts supporting the answer to each question above, together with those other facts that exist in the record, are hereby certified to be the Findings of the Board of Adjustment. X the requested variance.The Otter Tail County Board of Adjustment; APPROVES DENIES This decision is based on: Application ^^Clpformation received at public hearing L Staff report Pictures J Viewing by____members of the Board of Adjustment Complete and attach After-the-fact Addendum if this is an After-The-Fact variance request. I- 1!=>- Z,o\‘\DATED: Board of Adjustment Chair otter Tail County Board of Adjustment - Variance Question Findings 1. Is the variance in harmony with the general purposes and intent of the official control? (The board shall consider the purposes and intent of the official control). ^ Old T£>F O-P BuUF'F' 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), Tl/tT 7b ^ 3. Is the need for a variance due to the circumstances unique to the property not created by the iandowner or prior la ndowners? (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?) UAsADtoiOiAeTa. c:pe<^sC> c.t&.t-.Oto^'TAY^CS 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.) .VWsD TCb tAblT-H I ~f0 I T 5. Does the need for the variance involve more than jiist 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 considerable more does not constitute a practical difficulty). ■h.'X -TiiE: Tj^n 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. SCANtiED 1216851 CAROL SCHMALTZ OTTER TAIL COUNTY RECORDER/REGISTRAR OF TITLES r~- «:o !>• oS FERGUS FALLS, flH RECORDED ON 01/16/2019 02:10 PM FEE; 46.00 PAGES 9 WELL CERTIFICATE REC'D: N CO Cover Page Carol Schmaltz Otter Tail County Recorder Government Services Center 565 W Fir Ave Fergus Falls, MN 56537 218-998-8140 ^ ^ trf frypluKhim■ 'k ^ni\< )(Mm Date Stamp 1216741 received SFP 0 8 2017 tAMD&??[ESO(JWC^ CAROL SCHMALTZ OTTER Tail county RECORDER/RE6ISTRhR OF TITLES FER6US FALLS, MH RECORDED OH 01/14/201? 03:37 PM FEE: 46/PAOES^ WELL CERTIFIC^ -r H s8S •cr i' j 1— r L&R Initial THE 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.co.ottertail.mn.us Application Fee Accepted By / Datey^"^^^ *7 jjpnCOMPLETE THIS APPLICATION IN BLACK INK Receipt Number PROPERTY OWNER e. PR MAILING ADDRESS d>OX /V 5^-18 C SECTION *7 TOWNSHIP DAYTIME PHONE ~7 O i '2^ B ' A/D «Pg>/^ LAKE CLASSLAKE NAMELAKE NUMBER ^3i RANGE ^ TOWNSHIP NAME PU N N FlS i-t RO(^^ De^'7~i^ ojy Xa- A/E-911 ADDRESS PARCEL NUMBER R ne>0d=f9c>^ 7? Ooo LEGAL DESCRIPTION RrrT^OH^P TYPE OF VARIANCE REQUESTED (Please Check) Structure Setback Structure Size Sewage System WECS Misc.Subdivision Cluster SPECIFY HOW YOUR PROJECT VARIES FROM ORDINANCE REQUIREMENTS. PLEASE BE BRIEF AS THIS WILL BE USED FOR PUBLIC NOTIFICATION. 77/E srA-ru^(6is^ JS ft ^oo F S ^ ^ R bbs z Si-f^TU F RtL§o Ai^i~o>s To Sf ■g(2LL\(\ 25' ivT heifllii ^ 10^ -fVo H OHvJi^ Cf-fYO'H o F i F.FsJr£, ~t I UNDERSTAND THAT I HAVE APPLIED FOR A VARIANCE FROM THE REQUIREMENTS OF THE SHORELAND I MANAGEMENT ORDINANCE/SUBDIVISION CONTROLS ORDINANCE / SANITATION CODE / SETBACK ORDANAND AN/) WECS 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. DATESIGNATURE OF PROPERTY OWNER / AGENT FOR OWNER APPLICANT MUST BE PRESENT AT THE HEARING(Applicant Will Receive Notification As To The Date/Time Of Hearing) '.15 ic<4 . vn-ioi lundeenCo Pnniers • Fergus Falls Minnesota Oc>c a/t)Date Of Hearing Time Motion Lepetomane Properties LLC - Denied. (7:00 p.m.) After discussion and consideration, Paul Larson made a motion, seconded by Steve Schierer and carried with Jack Rosenthal abstaining and with Thomas Lee voting no, to deny the variances as requested as no adequate hardship/practical difficulty had been shown that would allow for the granting of the variances as requested. It was noted that the granting of the variance as requested would establish precedence and the applicant does have a reasonable use of the property without the granting of the requested variances. The property owner appealed the Board of Adjustments decision to District Court On August 29, 2018 the District Court Remanded the Variance Application back to the Board of Adjustment. The Board of Adjustment Considered the Application on January 10,2019. The Variance Request was Denied. Please see attached documentation and minutes. -AB 01/16/19 Chairman/Otter Tail County Board of Adjustment Permit(s) required from Land & Resource Management Yes (Contact Land & Resource Management) ___ No I J LR Official/Date ' ' Copy of Application Mailed to Applicant, Co. Assessor and the MN DNR bk 072011-001 Chris LeClair DirectorOTTER TAIL COUNTY LAND & RESOURCE MANAGEMENT PUBLIC WORKS DIVISION WWW.CO.OTTER-TAIL.MN.US Kyle Westergard Asst. DirectorOTTER TAIl 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 Sfc>iss -FivH l>-iF€Address/Parcel No.Applicant: Requested Variance: ToUF Cxxf^P- “Sg-T^Li£ ZS' ijJ lt>' fi>tD iK:iA-F*-t A-tJC> c>' ■fPor^'We'fc^e,^ T>iaFF Otter Tail County Ordinance: XShoreland Mgmt. Ill , Sobp. ^ WECS Dock & Riparian Use I Setback Ord.Sanitation. Subdivision. Ordinance Section Citation: 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: PPacxvcal. t> I Fp~> C.O uT-f tc>e>4Ti FieX>The applicant identified the following practical difficulty: PCDNKVCRITERIA / BOARD OF ADJUSTMENT MEMBER SS DL TL 1. Is the variance in harmony with the general purposes of the official control?/s/ a/2. Is the property owner proposing to use the property in a reasonable manner not permitted by an official control? 3. Is the need for a variance due to the circumstances unique to the property not created by the landowner or prior landowners?a) rJ4. Will the issuance of the variance maintain the essential character of the locality? 715. Does the need for the variance involve more than just economic considerations? Facts supporting the answer to each question above, together with those other facts that exist in the record, are hereby certified to be the Findings of the Board of Adjustment. X the requested variance.DENIESThe Otter Tail County Board of Adjustment: APPROVES This decision is based on: Application ^<i(iformation received at public hearing Staff report Pictures ^ Viewing by_____members of the Board of Adjustment Complete and attach After-the-Fact Addendum if this is an After-The-Fact variance request. I- |C> - 7^o\^DATED: Board of Adjustment Chair Otter Tail County Board of Adjustment - Variance Question Findings 1. Is the variance in harmony with the general purposes and intent of the official control? (The board shall consider the purposes and intent of the official control). ^ 'S>ULi l^r 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). ^6 Sx'/f 7o ^ 3. Is the need for a variance due to the circumstances unique to the property not created by the landowner or prior landowners? (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?) UA.iaOc>o>iGl*. c_i?l.cOKX-i>TAt^t_e 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.) Oi^ IT Tts ee-T tOiT-H 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 considerable more does not constitute a practical difficulty). isiD^cA-reD AO O -h-'X Z£>n B Sts 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. MINUTES OF THE MEETING OF THE OTTER TAIL COUNTY BOARD OF ADJUSTMENT Thursday, October 12,2017 The Otter Tail County Board of Adjustment met Thursday, October 12, 2017, with the following persons in attendance: Chris McConn Steve Schierer Thomas Lee Jack Rosenthal Alexander Kvidt, Land and Resource Management David Hauser, County Attorney Paul Larson Darren Newville Called to Order - Steve Schierer, Chair called the meeting of the Board of Adjustment to order at 6:30 p.m. Minutes Approved - The Board of Adjustment approved the minutes of the September 14, 2017 meeting as mailed. The Board of Adjustment eonsidered the following applications for variance: Eric and Renee Sholl, Steve and Liz Sholl and Dan and Lisa Sholl - Tabled. (6:32 p.m.) Eric and Renee Sholl, Steve and Liz Sholl and Dan and Lisa Sholl, Lots 33, 34, 35 and 36 Summer Haven Beach and Lot 3 Block 3 Summer Haven Beach First Addition, Pelican Lake in Scambler Township, requested the following: Requesting that the above riparian lots be sub-divided into three lots instead of the current four. These three lots would then be 66’ instead of the current 50’. Also request to have lots buildable for single family use. Once approved a new survey would be completed. Also requesting to sub-divide Parcel # 55000990720000 into three lots 50’ each to be permanently attached to a riparian lot and buildable for non-residential purposes. In attendance for the applicants were Eric and Renee Sholl, Liz Sholl and Lisa Sholl. Also appearing on behalf of the applicants was David Johnson their agent. The audience was polled with no one speaking for or against the variance as requested. An email from Vincent J. Esades in support of the variance as requested was read for the record. After discussion and consideration, Steve Schierer made a motion, seconded by Thomas Lee to consider Lots 33 and 34 of Sumer Haven Beach including half of Lot 3 Block 3 Summer Haven Beach First Addition, which would be permanently attached to Lots 33 and 34 as a buildable parcel for residential use and to consider Lots 35 and 36 of Sumer Haven Beach including the remaining half of Lot 3 Block 3 Summer Haver Beach First Addition, which would be permanently attached to Lots 35 and 36 as a second buildable parcel for residential use. It was noted that granting the variance as requested would establish precedence and would establish substandard lots. Minnesota Statute 394.36 Subdivision 5 was also discussed. The discussion focused on whether the provisions of this statute pertain to existing contiguous substandard lots as platted or if it this provision allow for the reconfiguration of existing contiguous substandard lots to meet the 67% rule. After additional discussion the previous motion was withdrawn. After additional consideration, Thomas Lee made a motion, seconded by Paul Larson and unanimously carried with the verbal permission of the applicants to table this public hearing until the November 9, 2017 meeting of the Board of Adjustment so that the applicants will have an opportunity to consider the variance being offered and to do additional research regarding the reasons why their original request should be approved. Lepetomane Properties LLC - Denied. (7:00 p.m.) Lepetomane Properties LLC, part of Lots 44 and 45 Provan Beach, Pelican Lake in Dunn Township, requested the following: The statue is about 5’ over allowed height - 20 feet. Statue also needs to be closer than the shore line limit - 75’. To be visible from lake. Being 25’ in height,10’ from the ordinary high-water level and 0’ from the top of the bluff (roadside of existing park bench.) The applicant was represented by Dirk Lenthe. The audience was polled with no one speaking for or against the variance as requested. After discussion and consideration, Paul Larson made a motion, seconded by Steve Schierer and carried with Jack Rosenthal abstaining and with Thomas Lee voting no, to deny the variances as requested as no adequate hardship/practical difficulty had been shown that would allow for the granting of the variances as requested. It was noted that the granting of the variance as requested would establish precedence and the applicant does have a reasonable use of the property without the granting of the requested variances. Roxanne Loftesness Trust - Variance application approved as requested with a condition. (7:13 p.m.) Roxanne Loftesness Trust, part of Government Lot 8, Section 3 of Nidaros Township by Stuart Lake, requested the following: Requesting variance for second story over existing structure footprint. The structure will be no closer to ordinary high-water level. No change to structure. Tim Loftesness represented the applicant at the public hearing. The applicant’s contractor also was in attendance. The audience was polled with no one speaking for or against the variance as requested. Page I 1 of 3 October 12, 2017 MINUTES OF THE MEETING OF THE OTTER TAIL COUNTY BOARD OF ADJUSTMENT Thursday, January 10, 2019 The Otter Tail County Board of Adjustment met in the Commissioners/Otter Tail Lake Room at the Government Services Center on Thursday, January 10, 2019, with the following persons in attendance: Steve Schierer Darren Newville Thomas Lee Doug Larson Ken Vorderbrugen Jack Rosenthal Chris LeClair, Land and Resource Management Kyle Westergard, Land and Resource Management Kris Vipond, Deputy Auditor-Treasurer Jason Kuboushek, Attorney with Iverson Reuvers Condon appointed to representative Otter Tail Count In attendance in the gallery: Michelle Eldien, Otter Tail County Attorney Marsha Bowman, Land and Resource Management Dirk Lenthe, Applicant’s Representative Louis Hoglund, Pelican Press Julie Aadland, DNR Ben Olson, Assistant County Attorney Wayne Johnson, County Commissioner Carl Malmstrom, Attorney for Applicant Judd Fischer, Plarming Commission Member Lee Rogness, County Commissioner Called to Order - Steve Schierer, Chair called the meeting of the Board of Adjustment to order at 5:09 p.ni. Minutes Approved - The Board of Adjustment approved the minutes of the December 13, 2018 meeting as mailed. Election of Officers - Thomas Lee made a motion, seconded by Darren Newville and unanimously carried to appoint Steve Schierer as Chair. Darren Newville made a motion, seconded by Ken Vorderbrugen and unanimously carried to appoint Thomas Lee as Vice- Chair. The Board of Adjustment considered the following application for variance: Lepetomane Properties LLC - Denied. (5:12 p.m.) Lepetomane Properties LLC, part of Lots 44 and 45 Provan Beach, Pelican Lake in Dunn Township, requested the following: The statue is about 5’ over allowed height - 20 feet. Statue also needs to be closer than the shore line limit - 75’ - to be visible from lake. Being 25’ in height, 10’ from the ordinary high-water level and 0’ from the top of the bluff (roadside of existing park bench). Chairman Schierer turned the meeting over to Attorney Jason Kuboushek to review the history of the application and to go over the factors that should and should not be considered when reviewing the application. The'applicant was present and represented by Attorney Carl Malmstrom. The audience was polled with no one speaking for or against the variance as requested. After discussion and consideration, Darren Newville made a motion, seconded by Jack Rosenthal and unanimously carried, by show of hands, to deny the variance as requested with the Variance Question Findings included in the motion as noted on Findings of Fact and Decision fonn. The Findings of Fact and Decision Form , which contains the criteria reviewed and the Board’s finding has been attached to the and incorporated as an official part of the minutes and has been placed on file with the Land and Resource Department. With no further business, Steve Schierer, Chairman declared the meeting adjourned at 5:52 p.m. Prepared by: Kris Vipond, Deputy Auditor-Treasurer AGENDA Otter Tail County Board of Adjustment Thursday, January 10, 2Q19OTTEJl THIl a a a « r r'> ■ I B I 11 e T • 2:30 to 3:00 p.m. - Auditor’s Office - The recording of the October 12, 2017 Lepetomane Properties LLC variance hearing will be made available for review by members of the board that were not members at the time of the original hearing. 3:00 to 4:00 p.m. - Closed Session - The Otter Tail County Board of Adjustment will meet in closed session.from 3:00 to 4:00 p.m. on Thursday, .January 10, 2018 to discuss attorney-client privileged matters involving the Dirk Lenthe variance application, which was appealed to District Court and has been remanded back to the Board of Adjustment for further review and consideration. The closed session is authorized under Attorney-Client privilege, M.S. §13D.05, Subd. 3(b). 4:00 to 5:00 p.m. - Joint Session - The Otter Tail County Board of Commissioners , Board of Adjustment, and Planning Commission will hold a joint training session with Jason Kuboushek, Attorney with Iverson Reuvers Condon. 5:00 p.m. - Public Hearing - Thursday, January 10, 2019 Public Hearing to Consider an Application that has been remanded back to the Board of Adjustment. Lepetomane Properties LLC, part of Lots 44 and 45 Provan Beach, Pelican Lake in Dunn Township, request the following; The statue is about 5 feet over allowed height - 20 feet. Statute also needs to be closer than the shore line limit - 75’ to be visible from lake. Being 25’ in height, 10’ from the ordinary high-water level and 0’ from the top of the bluff (road side of existing park bench). Notice of Hearing for Variance Otter Tail County Government Services Center 510 Fir Ave W Fergus Falls, MN 56537 Phone - (218) 998-8030/998-8041 Email - wstein@co.ottertail.mn.us Web Address - wvvw.co.otter-tail.mn.usOTTER Tfl*l Applicant and/or applicant’s representative must be present at the scheduled hearing. To Whom It May Concern: Lepetomane Properties LLC POBox14 Horace, ND 58047-0014 has/have made application to the Otter Tail County Board of-Adjustment for a variance as per requirements of the Otter Tail County Shoreland Management Ordinance, the Otter Tail County Set Back Ordinance and/or the Subdivision Controls Ordinance. The Otter Tail County Board of Adjustment will assemble for this hearing on Original Hearing Date - Thursday, October 12, 2017 at 6:30 p.m. ^Revised Hearing Date - Thursday, January 10, 2019 at 5:00 p.m. in the Commissioners’ 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 County Auditor’s office prior to the date of the public hearing. The property concerned in the application is legally described as Part of Lots 44 and 45, Provan Beach, Property Address - 50155 Fish Lake Road - 56501 Section 9, Township 137, Range 42 - Township Name - Dunn Lake No. 56-786, Lake Name - Pelican, Class - GD The variance requested is **the following: The statue is about 5’ over allowed height - 20 feet. Statue also needs to be closer than the shore line limit - 75’. To be visible from lake. Being 25 in height,10’ from the ordinary high-water level and 0’ from the top of the bluff (roadside of existing park bench.) 'Wayne Stein Board of Adjustment Secretary . December 20, 2018 ♦Application remanded back to the Board of Adjustment by the District Court for further review and consideration. '?*Board members please note the attached letter dated August 31, 2018 from Jason J. Kuboushek and the 20-page order from the District Court. Date Stamp received SFP 0 ii 2017 Uf\iDa??E30(jiCf ■ L&R Initial THE 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.co.ottertail.mh.us Application Fee Accepted By / Datey^^^^ Jjd\lCOMPLETE THIS APPLICATION IN BLACK INK Receipt Number PROPERTY OWNER P<g 7~z3E PRi^C. MAILING ADDRESS D B>PX /V AfPRPjC-t^ SECTION t> 7 TOWNSHIP DAYTIME PHONE 7^/- "2^8' A7D ,S'g4?W- O e-/‘-i__________________ R5a-/6/<4-V /reLAKE NUMBER LAKE NAME LAKE CLASS ^3i RANGE ^ TOWNSHIP NAME P> U N N S'/.rF FiS I-I >r <5 RoFoPARCEL NUMBER E-911 ADDRESSR /'74?t?'?yo9 7 ? LEGAL DESCRIPTION 9be F-rTP-aneP TYPE OF VARIANCE REQUESTED (Please Check) structure Setback X* Structure Size V* Sewage System____Subdivision Cluster WECS Misc. SPECIFY HOW YOUR PROJECT VARIES FROM ORDINANCE REQUIREMENTS. PLEASE BE BRIEF AS THIS WILL BE USED FOR PUBLIC NOTIFICATION. 77/E $T (S OF MocAUp') IS Fr^o OF S fe-feT- c o fxLLou^&p Pp kFA/t- S Ff^ TU F A Lgc> A/ e 1= D / o 8 F cco 7~/F Ft AJ /= /ff _S/iOfiEi ----' T BF 2.S' h<2'-([|L-f >=4- \0' 'Fv^OH GH'A/L- ^ u-fFO hj ciF yU UuF-f fmdiA.c{FQ( I UNDERSTAND THAT I HAVE APPLIED FOR A VARIANCE FROM THE REQUIREMENTS OF THE SHORELAND I ^ MANAGEMENT ORDINANCE/SUBDIVISION CONTROLS ORDINANCE I SANITATION CODE I SETBACK ORDANAND AN/pR WECS ORDINANCE OF OTTER TAIL COUNTY, I ■ o- I ALSO UNDERSTAND THAT OTHER PERMITS MAY BE REQUIRED; IT IS MY RESPONSIBILITY TO CONTACT LAND & RESOURCE MANAGEMENT REGARDING THIS MATTER. SIGNATURE OF PROPERTY OWNER / AGENT FOR OWNER .DATE APPLICANT MUST BE PRESENT AT THE HEARING (Applicant Will Receive Notification As To The Date/Time Of Hearing) r.lF "iJ ■ Vii-tr ur*i|.',-nCn PnnT.*it • (V'qu*. Mmneinl.i <^ 60 A/ri.TimeDate Of Hearing , Motion -Lepefomane Properties LLC - Denied. (7:00 p.m.) After discussion and consideration, Paul Larson made a motion, seconded by Steve Schierer and carried with Jack Rosenthal abstaining and with Thomas Lee voting no, to deny the variances as requested as no adequate hardship/practical difficulty had been shown that would allow for the granting of the variances as requested. It was noted that the granting of the variance as requested would establish precedence and the applicant does have a reasonable use of the property without the granting of the requested varianees. Chairman/Otter Tail County Board of Adjustment Permit(s) required from Land ,& Resource Management ______ Yes (Contact Land & Resource Management) ___ No j L"R Official/Date 17Copy of Application Mailed to Applicant, Co. Assessor and the MN DNR bk 072011-001 Notice of Hearing for Variance Otter Tail County Government Services Center 510 Fir Ave W Fergus Falls, MN 56537 Phone - (218) 998-8030/998-8041 Email - wstein@co.ottertail.mn.us Web Address - www.co.otter-tail.mn.usOTTER TnilOta Applicant and/or applicant’s representative must be present at the scheduled hearing. To Whom It May Concern: Lepetomane Properties LLC PO Box 14 ■Horace, ND 58047-0014 , has/have made application to the Otter Tail County Board of Adjustment for a variance as per requirements of the Otter Tail County Shoreland Management Ordinance, the Otter Tail County Set Back Ordinance and/or the Subdivision Controls Ordinance. The Otter Tail County Board of Adjustment will assemble for this hearing on Thursday, October 12, 2017 at 6:30 p.m. ' in the Commissioners’ 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 County Auditor’s office prior to the date of the public hearing. The property concerned in the application‘is legally described as Part of Lots 44 and 45, Provan Beach, Property Address - 50155 Fish Lake Road - 56501 Section 9, Township 137, Range 42 - Township Name - Dunn Lake No. 56-786, Lake Name - Pelican, Class - GD The variance requested is the following: The statue is about 5’ over allowed height - 20 feet. Statue also needs to be closer than the shore line limit - 75’. To be visible from lake. Being 25 in height,10’ from the ordinary high-water level and 0’ from the top of the bluff (roadside of existing park bench.) Wayne Stein Board of Adjustment Secretary September 22, 2017 ■■■'! ■ MINUTES OF THE MEETING OF THE OTTER TAIL COUNTY BOARD OF ADJUSTMENT Thursday, October 12, 2017 The Otter Tail County Board of Adjustment met Thursday, October 12, 2017, with the following persons in attendance: Chris McConn Steve Schierer Paul Larson Darren Newville Alexander Kvidt, Land and Resource Management David Hauser, County Attorney Thomas Lee Jack Rosenthal Called to Order - Steve Schierer, Chair called the meeting of the Board of Adjustment to order at 6:30 p.m. Minutes Approved - The Board of Adjustment approved the minutes of the September 14, 2017 meeting as mailed. The Board of Adjustment considered the following applications for variance: Eric and Renee Sholl, Steve and Liz Sholl and Dan and Lisa Sholl - Tabled. (6:32 p.m.) Eric and Renee Sholl, Steve and Liz Sholl and Dan and Lisa Sholl, Lots 33, 34, 35 and 36 Summer Haven Beach and Lot 3 Block 3 Summer Haven Beach'First Addition, Pelican Lake in Scambler Township, requested the following: Requesting that the above riparian lots be sub-divided into, three lots instead of the current four. These three lots would then be 66’ instead of the current 50’. Also request to have lots buildable for single family use. Once approved a new survey would be completed. Also requesting to sub-divide Parcel # 55000990720000 into three lots 50’ each to be permanently attached to a riparian lot and buildable for non-residential purposes. In attendance for the applicants were Eric and Renee Sholl, Liz Sholl and Lisa Sholl. Also appearing on behalf of the applicants was David Johnson their agent. The audience was polled with no one speaking for or against the variance as requested. An email from Vincent J. Esades in support of the variance as requested was read for the record. After discussion and consideration, Steve Schierer made a motion, seconded by Thomas Lee to consider Lots 33 and 34 of Sumer Haven Beach including half of Lot 3 Block 3 Summer Haven Beach First Addition, which would be permanently attached to Lots 33 and 34 as a buildable parcel for residential use and to consider Lots 35 and 36 of Sumer Haven Beach including the remaining half of Lot 3 Block 3 Summer Haver Beach First Addition, which would be permanently attached to Lots 35 and 36 as a second buildable parcel for residential use. It was noted that granting the variance as requested would establish precedence and would establish substandard lots. Minnesota Statute 394.36 Subdivision 5 was also discussed:: The discussion focused on whether the provisions of this statute pertain to existing contiguous substandard lots as platted orif itthis provision allow for the reconfiguration of existing contiguous substandard lots to meet the 67% rule. After additional discussion the previous motion was withdrawn. After additional consideration, Thomas Lee made a motion, seconded by Paul Larson and unanimously canned with the verbal permission of the applicants to table this public hearing until the November 9,2017 meeting of the Board of Adjustment so that the applicants will have an opportunity to consider the variance being offered and to do additional research regarding the reasons why their original request should be approved. Lepetomane Properties LLC- Denied. (7:00 p.m.) Lepetomane Properties LLC, part of Lots 44 and 45 Provan Beach, Pelican Lake in Dunn Township, requested the following: The statue is about 5’ over allowed height - 20 feet. Statue also needs to be closer than the shore line limit - 75’. To be visible from lake. Being 25’ in height, 10’from the ordinary high-water level and 0’ from the top of the bluff (roadside of existing park bench.) The applicant was represented by Dirk Lenthe. The audience was polled with no one speaking for or against the variance as requested. After discussion and consideration, Paul Larson made a motion, seconded by Steve Schierer and carried with Jack Rosenthal abstaining and with Thomas Lee voting no, to deny the variances as requested as no adequate hardship/practical difficulty had been shown that would allow for the granting of the variances as requested. It was noted that the granting of the variance as requested would establish precedence and the applicant does have a reasonable use of the property without the granting of the requested variances. Roxanne Loftesness Trust - Variance application approved as requested with a condition. (7:13 p.m.) Roxanne Loftesness Trust, part of Government Lot 8, Section 3 of Nidaros Township by Stuart Lake, requested the following: Requesting variance for second story over existing structure footprint. The structure will be no closer to ordinary high-water level. No change to structure. Tim Loftesness represented the applicant at the public hearing. The applicant’s contractor also was in attendance. The audience was polled with no one speaking for or against the variance as requested. Page I 1 of 3 October'll2, 2017 HECEiVSD RECEiVEO ftp 3 3 2GI? LAND*?!E30tWCF 1 P!- ,‘r" ■ 1'; ■ 'VsiviirC^ *:.^vi, J- ^ Vi- •rt. ■?»•'’■'■-•\VEObe^^«SE? ® ^ ooi)Dl>cXO-( PSOWG' ■ m ; / ..V- %fcS.>•*m-i!ssss m i ■®i ??i;U'.^ mmimpi I m m #■ f' J m §M imws m ss0^; mm m m* ,:.4-' M 4: ;5■: ^ IS«!> ’M Mi i:-? S&-?rffi'L.1 m''■V. mm^5Sr>. «T-l-i K'V;-:-2 Er-' ABSTRACT OF TITLE TO: That part of Lots Forty-four (44) and Forty-five (45), Provan Beach, said plat is on file in the Office of the Recorder, Otter Tail County, Minnesota,- described as follows: Beginning at the most easterly corner of said Lot 44; thence on an assumed bearing of South 38°54T6" West along the-southeasterly line of said Lot 44 a distance of 61.91 feet to the most southerly corner of said Lot 44; thence South 18°13'01" West along the easterly line of said Lot 45 a distance of 4.61 feet; thence North 48°50'31" West a distance of 30.88 feet; thence North 66°07'51" West a distance of 137 feet, more or less, to the shoreline of Pelican Lake; thence northeasterly along said shoreline to the intersection with a line which bears North 26°20'05" West from the point of beginning; thence South 26°20'05" East a distance of 199 feet more or less to the point of beginning. NOTE: All mortgages and other liens filed of record as to the above described lands which appear of record as having been satisfied prior to April 17, 1977 at 8:00 a.m., together with all assignments and satisfactions thereof, and extensions, subordinations, and other documents of record related to or associated with said mortgages and other liens in any way have been omitted herefrom. WEST CENTRAL ABSTRACTING CO., INC. FERGUS FALLS, MN / ! H PROPOSED LEGAL DESCRIF That part of Lots 44 and 45, PROVAN BEACH, sai< Office of the Recorder, Otter Tail County, fdinnesot Beginning at the most easterly corner of said Lo\ assumed bearing of South 3B degrees 54 minutes southeasterly line of said Lot-44, a distance of l> southerly corner of said Lot 44; thence Sy^uth l& second hlest along the easterly line of said Lot 4 feet; thence North 43 degrees 50 minutes 31 seci 30.33 feet; thence North (>& degrees 07 minutes of 137 Feet more or less, to the shoreline of pe. northeasterly, along said shoreline to the intersec bears North 20 degrees 20 minutes 05 seconds h beginning; thence South 20 degrees 20 minutes 01 of feet rhore or less, to the point of beginnu ' Containing 0.53 of an acre more or less. Subject reservations of record, if any. i ofiK^tUAd. Pu\r SURVEY LINE iruniNous road lOf oV'■A \ 2550, SCALE IN FE SCALE: I INCH = 50 FEE BEARINGS ARE. BASED C © DENOTES IRON nON: O DENOTES IRON MON' ITAR<ED "RLS I3C20 THIS CERTIFICA SURVEYOR'S CERTIFICATE hereby certify that this is a true and correct representation of a survey of ^fttv boundaries of the above described lend, end that this survey was prepared by ^rrie* or under my direct supervision and that t am a duly Registered Professional Landj Surveyor under the laws of the State of Minnesota. Dated this 3rd day of July,-^2003.'T/n NuriBER BEARING DISTANCE JOMl5 ie>13'0l"irju 4.&I N ^3‘50'3!'*HL2 30.33 CONTRACT NUUDEB 436-02 -- yO✓7 Iverson Reuvers Condon ATTORNEYS AT LAW (E / Mark J. Comdom no<o-20iGi JOH K. IVCRSGI'I PaulD. Reuvers JasomJ. Kiiroushfk Jasdn M. Hive: fy Susan M. Tindai. S'EPHANIE A. Ai'IGOLKAR Megaim C. Kelly Andrew A. VVOLF \/A-ugust 31, 2018 Jeffrey Hentges VIINNESOTA COUNTIES INTERGOVERNMENTAL TRUST lOO Empire Drive, Suite 100 St. Paul, MN 55103-1885 rE; Trust Menrber: Coxmty of Otter Tail Variance Application of Dirk Lentlie Your Claim No.: 17PE0091 Our File No.; 200.1624 pear Mr. Hentges; Since our last report, we have received Judge Benson's Order and Ivlemorandum Remcmding the Apphcation to Board of Adjustment As ,yoti will recall, Lenthe brought this action challenging the Board of /^cljustment's denial of his application for a variance to place a 25-foot tall looD statue m the bluff ar ea of Pelican Lake. In his appeal, Lenthe argued the statue was not a structure under the County's ordinance and, therefore, he should not have been required to apply for a variance. Even jf the statue was a structure, the Board failed to make adequate findings yvhich was evidence of an arbitrary and capricious decision and, therefore, jt should be reversed. We argued die statue fit within the ordinance's clefirrition for a shucture and the Board properly denied the variance. We (^id acknowledge diere was ,a lack' of detailed findings but we felt there y^ras adequate evidence in the record. her Order and Memorandum, Judge Benson goes through a very (Retailed analysis of both issues. First, she broke down whether or not the loon statue would qualify as a structure under the Coxmty's ordinance, ghe adopted a sirhilar line of cases which we cited in our motion papers at the hearing. Using this analysis she found the loon statue was a g{j-ucture and, therefore, had to compfy with the County's ordinance and Lenthe had to apply for a variance. Av/enue South I BlocmiNGTON. MN 55438 1952.548.7200 I FAX; 952.548.7210 I wvw.irc-l.aw.com AugustSl, 2018 Page 2 The Court then reviewed whether determinations were or not the Board's findings and 6^ough to provide for meaningful and judicial review. She found the findings were insufficient. Of note she indicated die record before die Court provided litde evidence showing the Board considered die proper factors as set fordi under Minnesota Sta^tes § 394.27, subdivision 7, and die County's Shoreline Ordinance regarding practical difficulties. The Court felt it did not know what, if determinations die Board of A4justment made to justify its decision regarding the denial of variance. Accordingly, the Court is remanding the matter back to die Board of Adjustment for a discussion of the relevant factors to be considered. any. In addition to remanding the matter, the Court to. Accordingly, the Court directed tlm Bol-d ^chose consider die application anew in livht of tho t '^‘^pstment was to Thus, Lendie has an opportunity to makf Lw^' new evidence. The Court directed there be a present for both sides to present new evidence even if tliat p a chance should have been previously prevented The Cn +could have or wa, to address *is issue i/^t f adequate findings. ailed to make any We win work with Otter Tail County on tliis remand. The Court still has jurisdiction over this matter and following a remand, Lenthe could appeal the decision back to die Court for further review. Therefore, we want to have sufficient evidence in the record and adequate findings to ^sustain another appeal. ensure we August 31, 2018 Page 3 Sincerely, IVERSON REUVERS CONDON Jason J. Kuboushek Direct: (952)548-7206 E-mail: jasonk@irc-law.com Wayne Stem Km-t Mortenson Nicole Hansen Michelle Eldien cc: Electronically Served 8/30/2018 11:41 AM Otter Tail County. MN 56-CV-17-3254 i- ; State of Minnesota Otter Tail County District Court Seventh Judicial District Court File Number; 56-CV-17-3254 Case Type: Appeal from Administrative Agency RIed In District Court State ol Minnesota Notice of: X Filing of Order X Entry of Judgment __Docketing of Judgment FILE COPY AUG SO 2018 In re the Matter of Dirk Lenthe and the Commissioner of Otter Tail County Board of Adjustment You are hereby notified that the following occurred regarding the above-entitled matter: X An Order was filed on August 29, 2018. X Judgment was entered on August 30, 2018. ___ You are notified that judgment was docketed on at in the amount of $. Costs and interest will accrue on this amount from the date of entry until the judgment is satisfied in full. Dated: August 30, 2018 Kathryn A. Ouren Court Administrator Otter Tail County District Court 121 W. Junius Ave. Fergus Falls MN 56537 218-998-8420 cc; CARL E MALMSTROM e-served JASON JAMES KUBOUSHEK e-served A true and correct copy of this Notice has been served pursuant to Minnesota Rules of Civil Procedure, Rule 77.04. MNCIS-ClV-142 STATE Notice Rev. 09/2013 Electronically Served 8/30/2018 11:41 AM ;Otter Tail County, MN 56-CV-17-3254 Filed in District Court State of Minnesota August 30, 2018 STATE OF MINNESOTA IN DISTRICT COURT COUNTY OF OTTER TAIL SEVENTH JUDICIAL DISTRICT In the Matter of the Variance Application of: Dirk Lenthe,ORDER AND MEMORANDUM REMANDING APPLICATION TO BOARD OF ADJUSTMENTAppellant, vs. Filed in District Courtthe Commissioner of Otter Tail County Board of Adjustment,State of Minnesota August 29, 2018 Court File No. 56-CV-l 7-3254Respondent. On July 16, 2018, the above-entitled matter came on before the undersigned Judge of District Court, at the Otter Tail County Courthouse, in Fergus Falls, Minnesota, for Oral Argument upon causes of action stated in the Notice of Appeal (Doc. 1; Oct. 27, 2017) and Complaint (Doc. 2; Oct. 27, 2017). The parties submitted a stipulated Administrative Record (Docs. 8-9; Jan. 18, 2018) upon which matter was heard. Pursuant to the Scheduling Order (Doc. 10; Jan. 31, 2018), Appellant submitted a memorandum in support of the appeal (Doc. 12; April 16, 2018), Respondent submitted a memorandum in opposition (Doc. 15; May 16, 2018), and Appellant submitted a reply memorandum (Doc. 16; June 4, 2018). Attorney Carl Malmstrom appeared on behalf of Appellant. Attorney Jason Kuboushek appeared on behalf of Respondent. The Court heard argument orally and on the record. Based on the pleadings, the stipulated record, the memoranda, the arguments of counsel. and the applicable law, the Court now makes the following: !56-CV-17-3254 Lenthe v. Board of Adjustment 56-CV-17-3254 ORDER 1. With respect to Appellant’s prayer for a judgment declaring that the Board of Adjustment inappropriately denied his application for a variance, the Court hereby remands the matter to the Board of Adjustment for proceedings not inconsistent with the following opinion. The Board shall make findings sufficient to enable meaningful judicial review sought by any interested party. 2. Denial of Appellant’s prayer for a judgment declaring that his proposed use does not require said variance is hereby reserved pending the outcome of proceedings upon remand. The intent of this order is to prevent any need to engage in piecemeal appeal. 3. The attached memorandum is hereby incorporated by reference herein. LET JUDGMENT BE ENTERED Dated this 29th day of August, 2018.BY THE COURT: Court File No. 56-CV-l 7-3254 Honorable Sharon G. Benson Judge of District Court JUDGMENT I hereby certify that the foregoing Order constitutes the Judgment of the Court. Dated: August 30, 2018 COURT ADMINISTRATOR By: Deputy Court .Administrator 2 , 56-CV-17-3254 Lenthe v. Board of Adjustment 56-CV-17-3254 MEMORANDUM Appellant-land-owner desires to place the world’s tallest statue of a loon on his lakeshore property, and he seeks to ensure that the statue would be viewable by members of the public on the lake. For this reason he sought a variance permitting him to place the statue within the shoreline and bluff setback areas restricted by the local zoning ordinance, as well as a variance from the height limits in that ordinance. Respondent-Board denied the variance application. Appellant challenges that denial arguing (1) that the statue is not a “structure” governed by the > ordinance, and (2) thaf the Board did not articulate sufficient reasoning for the denial of the variance. First, the Court finds that, once placed indefinitely, the statue would be a structure requiring a variance. Second, the Court remands the matter to the Board with instructions to make findings sufficient to permit meaningful judicial review of its variance decision. Facts Appellant, Dirk Lenthe, through Lepetomane Properties LLC, is the owner of a residential property, comprising two lots, located directly on the shore of Pelican Lake, a lake located in Otter Tail County, Minnesota. The property is roughly trapezoidal, with the larger base facing the lake and the shorter base facing the road. The area is wooded, and the side facing the lake'has.a bluff that runs along the length of the property. Appellant is also the owner of a steel sculpture of a loon performing its mating dance, which Appellant commissioned from a Dutch artist. Depending on how the statue would be mounted, it would stand approximately twenty-five feet tall. Appellant proposes to mount the statue on the top of the bluff looking out toward the lake. Accordingly, he applied to Respondent, Otter Tail County Board of Adjustment, for a sixty-five-foot variance from the seventy-five-foot shoreline setback requirement, a variance from the entirety of the bluff setback requirement, and a five-foot variance from the 3 56-CV-17-3254 i Lenthe v. Board of Adjustment 56-CV-17-3254 twenty-foot height limit applicable to any structure, other than a residence, that is placed that close to the shoreline. It is undisputed that if the statue were forced to comply with the shoreline I and bluff setback-requirements, then the statue would not be properly visible from the lake. At the October 12, 2017 meeting of the Board of Adjustment, Appellant’s application for a variance was considered. Attendees praised the artistic merits of the statue. But concern was also expressed that other property owners might claim that structures they wanted to build should be thought of as art. One attendee, presumably a member of the Board, stated that one reason for the ordinance was to preserve the natural look of the shoreline. An attendee, also presumably a board member, referenced the “practical difficulties” and “undue hardship” standards, and Appellant admitted that there was no hardship. One member of the Board moved to deny the variance application. As his reasoning, he stated: “Just the precedent. I mean, this is really nice [as art], but my thing is ... [i]f an architect [rather than an artist] designs a really different deck and says look at this deck, the way it’s configured on a bluff or whatever, is that any different than this? i And that’s the reason I’m making the motion [to deny the application for the variance].” The motion was seconded, and prevailed by a vote of four to one, with one member of the Board abstaining because he was uncertain what he thought. No other explicit findings were made on the record. The minutes reflect that “no adequate hardship/practical difficulty had been shown that would allow for the granting of the variances as requested” and that “[i]t was noted that the granting of the .variance as requested would establish precedence [5/c] and the applicant does have a reasonable use of the property without the granting of the requested variances.” Appellant now appeals the decision of the Board to deny the variance. He also argues that the Shoreland Management Ordinance, properly interpreted, does not apply to the statue or ' 14 i ' i■i 56-CV-17-3254 Lenthe v. Board of Adjustment 56-CV-17-3254 require a variance. The parties agreed to a stipulated administrative record of proceedings before ithe Board, and submitted appellate-style briefing and argument. ; Legal Analysis I.The Loon Statue Would be a “Structure” Requiring a Variance Prior to reviewing his appeal from the Board’s ,denial of his variance, Appellant first asks the Court to determine that no variance is required because the ordinance applies to “structures,” and he contends that the statue here does not meet the ordinance’s definition of a structure. At hearing the parties agreed that this issue is properly before the Court, and these parties are the proper parties to litigate it, because (1) the Board is an agent-of the county.and the applicable enforcement authority for the county ordinance whose meaning is contested, and (2) the Board implicitly made a determination that the statue was a structure when it considered and denied the variance. In addition, the determination of this issue dictates whether there is truly a live ■: controversy concerning the Board’s denial of Appellant’s variance request. Cf. Appeal of Brine, 460 N.W.2d 53, 54 (Minn. 1990) (in appeal of denial of conditional use permit, determining threshold issue.of whether structure was a “marina” requiring permit or “dock” not requiring permit at all). The parties also agreed that the Court could make a dispositive determination of the issue based upon the stipulated administrative record. Under the terms of the Shoreland Management Ordinance, the setback requirements and height restrictions apply to any “structure”, erected on the land. Ordinance § 1.4. A “structure” is defined as (1) “[a]ny building” and (2) any “appurtenance, including, but not limited to, vision obstructing fences, decks, swimming pools, satellite dishes in excess of 1 meter in diameter. towers (except for public utilities), solar panels, and pergolas.” Ordinance § 11.82. Because a 5 •-J-1 56-CV-17-3254 Lenthe v. Board of Adjustment 56-CV-l 7-3254 “building” is defined as “[a]ny fixed construction with walls or a roof,” Ordinance § 11.13, it is undisputed that the loon statue is a structure only if it would be an “appurtenance.” Appellant contends that the statue is not an appurtenance, while the Board contends that it would be an appurtenance. The term “appurtenance” is not defined by the ordinance, but it has an established meaning in American case law. Where an ordinance uses a word with an established technical r.' meaning, the drafters generally intend to incorporate-that established meaning. Minn. Stat. § 645.08(1); Cannon v. Minneapolis Police Dep't, 783 N.W.2d 182, 192-93 (Minn. App. 2010) (“The rules governing statutory interpretation are applicable to the interpretation of city ordinances.”). The Minnesota Supreme Court has recognized that under “the traditional definition,” an appurtenance: means and includes all rights and interests in other property necessary for the full enjoyment of the property conveyed and which were used as necessary incidents thereto. An appurtenance is also defined as everything necessary to the beneficial use of the property, whatever is needed to complete a structure and make it capable of performing its intended function. Ethen v. Reed Masonry, Inc., 313 N.W.2d 19, 20 (Minn. 1981) (quoting P/ne v. Gilbraltar Savings Association, 519 S.W.2d 238, 241 (Tex. App. 1974) (indirectly quoting 6 C.J.S. Appurtenance 136)). Relying solely on this language. Appellant contends that the loon statue. even when attached to the bluff, will simply be a statue that serves nothing but an aesthetic function, and so will not be “necessary to the beneficial use” of the land. Therefore it will not be an appurtenance, which in turn means that the statue will not be a structure.' , The Court disagrees. Ethen makes clear that Minnesota follows the “traditional definition” of what an appurtenance is. The authority that Ethen itself cites goes on explain that 6 56-CV-17-3254 Lenthe v. Board of Adjustment 56-CV-17-3254 this traditional definition is met whenever an object is a “fixture” on the property. Pine, 519 t '■■■ A S.W.2d at 241 (quoting Szilagy v. Taylor, 25 N.E.2d 360, 361 (Ohio App. 1939)). In other words an “[ajppurtenance with reference to realty, has been said to be analogous to improvements; and it has been defined as something annexed to another thing more worthy....” Id. (quoting 6 C.J.S. Appurtenance 134). Indeed, the definition of an appurtenance given in Ethen effectively encompasses the definition of a fixture, which means “an essential or component part of some structure or appliance which is attached to [the freehold]” and which “cannot be removed without leaving the freehold in a substantially worse condition than before the annexation.” Hanson v. Vose, 175 N;W. 113, 114 (Minn. 1919). And language in Minnesota case law often casually treats fixtures as necessarily being a type of appurtenance. See, e.g., Fink v. United Am. Fire Ins. Co. of Milwaukee, Wis., 124 N.W. 7, 9 (Minn. 1910); Beaupre v. Holland & Thompson Mfg. Co., 45 N.W. 1094, 1095 (Minn. 1890). Moreover, every single item which the Shoreland Management Ordinance lists as an example of an appurtenance is something that would virtually always be a fixture as well. .See Ordinance § 11.82 (fences, decks, pools, satellite dishes, towers. solar panels, pergolas). Thus, the test of whether a physicaf,object is an appurtenance, and therefore a “structure” subject to the Shoreland Management Ordiriahce here, is not whether the object is important to the property in some metaphysical sense, it is whether it is integrated into the real estate in a way that, in a practical and operational sense, transforms the object into a part of the real property. If an object is affixed to real property, so that it becomes part of that property, then it is an appurtenance, and it is regulated by the ordinance. Indeed, this accords with the common understanding'of the term “structure.” Thus, for instance, the Court of Appeals has held that an external generator, which the property could have functioned without, but which had been 7 i. 56-CV-17-3254 Lenthe v. Board of Adjustment 56-CV-17-3254 installed for the beneficial use of the real property, was an appurtenance, and therefore was also a Structure under an ordinance substantially similar to the ordinance here. McQuinn v. City of Nisswa, 2006 WL 1604980 (Minn. App. June 13, 2006) (unpublished). An influential early American case sheds light on when an object like a statue becomes an appurtenance under the traditional definition of that term. In Snedeker v. Warring, 12 N.Y. 170 (1854), a property owner erected a three-ton stone statue of George Washington on an artificial mound located in a courtyard in his property. Id. at 174-75. The statue was not fastened to its base, but was held in place by its own weight. Id. Subsequently, the property owner defaulted on his debts, and different successors obtained ownership of (i) the land “and its appurtenances,” and (ii) the personal property on the land. Id. at 171. The ownership of the statue therefore turned on whether it was considered an appurtenance. Based on the objective circumstances, including the statue’s weight and placement, the existence of a mount for the statue, and the original owner’s apparent intention to use the statue for ornamental purposes, the court determined that the statue was a fixture, and thus belonged to the successor who had obtained the real property. Id. at 179-80; see also Fechet v. Drake, 12 P. 694, 697 (Ariz. 1887) {cxWng Snedeker v. Warring for the proposition that such a statue is ah appurtenance); D'Eyncourt v Gregory, L.R. 3 Eq. 382 (Eng. 1866)'(adopting similar reasoning in holding statues to have been integrated into real property). The facts in this case are similar, and the analysis of the New York high court is persuasive. As in Snedeker, the statue Appellant proposes to place on his land is'both large and heavy. Like the statue of Washington in that case, Appellant proposes to mount his statue of a loon on the land in some particular fashion. The purpose of placing the statue on the land is ornamental, and indeed would have the purpose of displaying the statue in place. There is no 8 .•f 56-CV-17-3254 Lenthe v. Board of Adjustment 56-CV-l 7-3254 indication that the.placement of the statue would be anything but indefinite. And in the scenario i where the statute is erected on the property, its subsequent removal would constitute a significant change to the property, leading to a diminution in what would then be the full enjoyment of the i land. In short, when placed on the land with the intent of displaying it there indefinitely, the loon istatue would become an appurtenance, and therefore a “structure” subject to the Shoreland Management Ordinance. Thus, a variance is necessary before Appellant can erect the statue on his land. I- The Board’s Findings are Insufficient to Permit Meaningful Judieial ReviewII. a. Standard of Review 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 the applicable law, and did not act arbitrarily, oppressively, or unreasonably, and ... whether the evidence could reasonably support or justify the [board’s] determination.” In re Stadsvold, 754 N.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, 324 N.W.2d 174, 176 (Minn. 1982). However, “when resolving variance requests, the zoning authority 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)); Sawh v. City of Lino Lakes, 823 N.W.2d 627, 635 (Minn., 1 2012) (granting deference if authority explained “how it derived its conclusion”). “When the 9. ' ! j 56-CV-17-3254 Lenthe v. Board of Adjustment 56-CV-17-3254 zoning authority fails to comply with this requirement, it is difficult if not impossible for a reviewing court to determine whether the zoning authority’s decision was proper, was predicated on insufficient.evidence, or was the result of the zoning authority’s failure to apply the relevant provisions of the zoning ordinance.” Stadsvold, 754 N.W.-2d at 332. “A decision predicated on insufficient evidence or arising from a failure to apply relevant provisions of the ordinance [is] arbitrary and capricious.” Id. In order to provide for the possibility of meaningful review by a court, zoning authorities often discuss and vote on specific findings relating to each of the factors relevant to whether to grant or deny a variance. See, e.g., Davis v. Le Sueur Cty. Planning & Zoning Bd. of Adjustment, 2018 WL 2407262 (Minn. App. May 29, 2018) (unpublished) (board filled out findings of fact form listing seven factors drawn from statute); Nesvigv. Crow Wing Cty., 2011 WL 3557871 (Minn. App. Aug. 15, 2011) (unpublished) (“The board verbally considered and completed a written checklist that included each [legally controlling] factor.”); 7/ams v. City of Wabasha, 2010 WL 2265934 (Minn. App. June 8, 2010) (unpublished). Where such findings are necessary for meaningful review of a zoning action, but were not made by the authority, a court has the power to remand the matter back to the authority. Interstate Power Co. v. Nobles Cnty. Bd. of Comm'rs, 617 N.W.2d 566, 577 (Minn. 2000); Earthburners, 513 N.W.2d at463. A zoning authority’s decision to grant or deny a variance is measured against the applicable zoning ordinance. VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 n. 6 (Minn. 1983). State law provides that a county board of adjustment shall have the power to issue variances. Minn. Stat. § 394.27, subd. 7. “Variances shall only be permitted when they are in harmony with the general purposes and intent of the official control and when the variances are consistent with the comprehensive plan.” Id. And variances may be granted when there are 10 56-CV-17-3254 Lenthe v. Board of Adjustment 56-CV-l 7-3254'4- i “practical difficulties in complying with the official control.” Id. “Practical difficulties” are ipresent 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 essential character of the locality.” Id. “Economic considerations alone do not constitute practical difficulties.” Id. And a county board ofadjustment may impose conditions upon a variance if those conditions are sufficiently related to the variance. Id. This same “practical difficulties” standard articulated in state statute is also repeated in Otter-Tail County’s Shoreland Management Ordinance. Ordinance § V.6. In addition, the ordinance requires the Board to 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 1 existing sewage treatment systems on the property need upgrading before additional , i :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. “No variance shall be granted simply because there are no objections or because those who do not object outnumber those who do.” Ordinance § V.6.H.4. b. The Board Did Not Make Necessary Findings The record here provides little evidence to show that the Board considered the proper factors. First, the Board’s minutes reflect the.conclusion that “the applicant have a reasonable use of the property without the granting of the requested variances” (emphasis added). But this finding is not relevant to the appropriate legal standard — practical difficulties. Previously, under Minnesota law, applicants for some types of variances were required to show 11 ) 56-CV-17-3254 Lenthe v. Board of Adjustment 56-GV-l 7-3254 ■7 “undue hardship,” an element of which was that “the property in question cannot be put to reasonable use if used under conditions allowed by the official controls.” Krummenacher v. City of Minnetonka, 783 N.W.2d 721, 728 (Minn. 2010) (quote omitted) (emphasis added). But the legislature subsequently amended the law, such that the “undue hardship” standard is inapplicable here. See generally H.F. 52 Bill Summary (Feb. 17, 2011) (and related house sub­ committee hearings). Accordingly, it is not relevant that Appellant has a reasonable use of his property without a variance. The Board’s minutes also reflect the conclusion that granting the variance would establish an undesirable precedent. And the reasoning given as part of the motion to deny the variance likewise reflected a concern for the precedent that granting the variance would set. Little in the way of support for the Board’s decision can be drawn from these statements. however. Precedent itself \s not a factor that the Board was directed to consider. Cf. Matter of Johnson, 404 N.W.2d 298, 301 (Minn. App. 1987) (“An applicant for a variance is not entitled.to a variance merely.because similar variances were granted in the past.”). Now, it may be that, when the Board invoked the concept of precedent, this was shorthand for some speeifie factor which was relevant. For instance, the Board could have meant that Appellant’s circumstances were not sufficiently distinguishable from the circumstanees of the majority of owners, or that Appellant’s proposed use of his land was out of harmony with the land controls to a degree indistinguishable from other prohibited uses. But nothing in what the Board said tells the Court this. The Court does not know which, if any, of the determinations the Board could have made to justify its decision these comments might imply. Certainly it is a virtue for the Board to apply its standards for granting a variance in a consistent manner. If this is what the Board meant, then there is no problem. But it is a mistake of law for the Board to decide 12 56-CV-17-3254 Lenthe v. Board of Adjustment 56-CV-17-3254 different cases the same without first considering whether those cases may be different under the applicable legal standard. The Board’s mere use of the word “precedent” does not fell the Court j* whether the Board reached its result (i)'by making one of many reasonable judgment calls it was entitled to make, or (ii) by failing to recognize that it was required to make fact-specific findings - and Judgment calls. The Board also expressed concern at taking on the role of art critic. This is a laudable concern. Indeed, tbe Board should not.be in the business of jgranting or denying variances for pieces of artwork simply because of the viewpoint or subject of that art. Nor should the board be making decisions based solely on the cost or quality of artwork. But that does not mean that the Board should shy away from examining legitimate distinctions in its zoning law that are “unrelated to the suppression of free expression.” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (upholding application of zoning law to adult movie theater); cf. City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). The concern that other landowners will make patently frivolous arguments claiming that their variance requests have an artistic motive cannot be a fig leaf used to Justify the Board failing to consider how a piece of artwork truly implicates the policies underlying its ordinance. Here a board member cited the example of ah architecturally interesting deck. But a deck can clearly be distinguished from a statue. First, the primary use of a deck is as a seating area. not as an object for display. Second, a deck is the type of recreational structure that has a much more direct relationship to the purpose and intent of the Shoreland Management Ordinance. Nothing about giving a full hearing to a'variance request for a statue would force the Board to act as an art critic when considering an application for a variance to build a deck. A board member also cited the example of people who “believe the stuff in their yard is art, and it certainly isn’t.” 13 4 56-CV-17-3254 Lenfhe v. Board of Adjustment 56-CV-17-3254 For all that the Court knows, this could refer to a violation of a public nuisance ordinance prohibiting-garbage accumulation, and not a zoning matter at all. Ultimately, any concern the Board had with avoiding being an art critic is much like its concern with precedent. There might be legitimate concerns hiding underneath what the board members expressed, but the precise nature of the Board’s concerns is not evident from the face of those expressions of concern. What is left of the Board’s findings after the statements discussed above are considered is likewise insufficient to permit meaningful judicial review. The statement in the minutes that “no adequate hardship/practical difficulty” was found is merely a conclusory statement. The statement of one attendee that the ordinance is meant “preserve the natural look of the shoreline” also adds nothing substantial. It is not clear that the statement even came from a board member. and even if it did, it was merely a general statement, and not one that was voted on or adopted by the Board itself. The Court understands that'local boards may sometimes conduct meetings on an informal basis. But where an action for Judicial review is brought, the Court has the duty to require a zoning authority to adopt findings sufficient to permit meaningful review. Even a generous reading of the record makes clear that the Board did not do that here. Based on the Court’s review of the record here, this is a case where it is necessary to remand to the Board.so that the official record can capture the Board’s determinations with respect to the factors stated in the statute and the ordinance. Certainly, the Court could simply reverse the Board’s determination if it were clear that the facts could not be read to support its decision. Cf. N. States Power Co. v. Blue Earth Cnty., 473 N.W.2d 920, 923 (Minn. App. 1991). And the Court could affirm the Board’s determination if it were clear that Appellant’s variance could not have been properly granted. Cf. Graham v. Itasca Cty. Planning Comm'n, 601 N.W.2d 461, 467 (Minn. App. 1999). But neither of these scenarios is present here. Rather, this is a case 14 56-CV-17-3254 Lenthe v. Board of Adjustment 56-CV-17-3254 where a reasonable zoning authority applying the correct legal standards might conceivably make factual determinations about the locality and make judgment calls about the purpose of the zoning controls that would support either granting or denying the variance. In order to demonstrate why remand is necessary, and for the sake of Judicial efficiency, it is useful for the Court to discuss the most relevant legal factors that the Board must consider and for the Court to !explain why multiple results could be reached. c. On Remand a Reasonable Authority Could Reach Different Results First, a reasonable zoning authority could conceivably reach different results regarding whether Appellant’s variance would be in harmony with the Shoreland Management Ordinance. The ordinance recites 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 ordinance further provides that shoreline alterations should “prevent erosion into public waters, fix nutrients, preserve shoreland aesthetics, preserve historic values, prevent bank slumping and protect fish and wildlife habitat.” Ordinance § IV.3. The litigation materials submitted by the Board explain how the Board could have I ■determined that the risk of erosion posed by placing Appellant’s loon statue on a bluff was great enough that a variance would run counter to the purpose and spirit of the Shoreland Management Ordinance. Similarly, the Board could have determined that the statue would be such an eyesore that a variance would run counter to the goal of maintaining the aesthetics and historic value of the lakeshore. Because a zoning authority has broad authority to construe the purpose of its 15 56-CV-17-3254 Lenthe v. Board of Adjustment 56-CV-l 7-3254 zoning controls, these are indeed determinations the Board could make. And a court generally defers to these types of factual and policy determinations, as long as they are made in good faith. But the record does not reflect that the Board actually made those specific determinations, much less made them in good faith. Nothing was said about erosion. And attendees actually praised the aesthetic qualities of Appellant’s statue. A reasonable zoning authority could just as easily conclude that erosion was not an issue, or that this issue could be addressed by attaching conditions to the variance. And a reasonable zoning authority could also conclude that the absence of any provision in the ordinance that would prevent other statues from being erected means that Appellant’s art display is not in disharmony with the purpose and intent of the ordinance. Similarly, a reasonable zoning authority could conceivably reach different results regarding the essential character of the lakeshore area and the reasonableness of displaying a statue on a bluff in that area. The Board here is assumed to know the character of the locations within its jurisdiction, and can make findings about how a proposed variance would affect that character without conducting a searching investigation or receiving expert evidence. Cf RDNT, LLC V. City of Bloomington, 861 N.W.2d 71, 77 (Minn. 2015) (may reject expert testimony based on lay observations); Trisko v. City of Waite Park, 566 N.W.2d 349, 356 (Minn. App. 1997) (unless speculative). The Board could determine that Pelican Lake would not be the same . if it had the world’s tallest loon statue on its banks. Or the Board could conclude that adjacent property owners would be negatively affected. A court would generally defer to those ■.y determinations if they were made based on the board member’s knowledge and judgment. But, again, there is no evidence that those specific judgments were made. And a reasonable zoning 16 56-CV-17-3254 Lenthe v. Board of Adjustment 56-CV-17-3254 authority could also find that there is nothing harmful or unreasonable about a landowner wanting to display a piece of art where^others can see it. ; Finally, a reasonable zoning authority could conceivably reach different results regarding whether Appellant’s need for a variance is the result of circumstances unique to the property. Unique circumstances generally exist when the' iand has characteristics not shared by other properties, such as an irregular lot shape, different land topography, physical obstructions, or restrictions imposed by abutting properties. &e,83 Am. Jur. 2d Zoning and Planning § 780 (citing Trinity Assembly of God of Baltimore City, Inc. v. People's Counsel for Baltimore County, 962 A.2d 404 (Md. 2008)); see also Mohler v. City of St. Louis Park, 643 N.W.2d 623, 632 (Minn. App. 2002) (noting that topography and.obstructions are basis, but postulating that other grounds may exist). These unique circumstances should relate to both the setback requirements and the height limit. With respect to setback requirements, the existence of a bluff or grade can be a unique circumstance depending on where it is located on the property. And the existence of trees can be a unique circumstance, cf. Nolan v. City of Eden Prairie, 610 N.W.2d 697, 702 (Minn. App. 2000), especially when a property owner has sufficient space to comply with setback requirements, but would have to cut down desirable trees in order to comply with those setback requirements. Here the Appellant is seeking to place his statue in a location where others can see it. If his lot had different topography and different tree cover, then he could accomplish this goal without a variance. In the absence of a bluff, and with the right sort of grade, the statue would be visible from.the lake even if it were seventy-five feet from the shoreline. Does this mean that the ordinance is blocking Appellant from achieving his goals due to circumstances particular to his land? It depends. “Unique circumstances” are ones that are “not reflective of conditions general 17 i I 56-CV-17-3254 Lenthe v. Board of Adjustment 56-CV-17-3254 to the neighborhood.” Merriam Park Cmty. Council, Inc. v. McDonough, 210 N. W.2d 416, 421 (Minn. 1973). Perhaps Appellant’s land is different from other lake lots, such that he needs a variance to do what other owners could do without a variance. Perhaps the whole area is like Appellant’s lot, and so he is really challenging the legislative policy which the County has established for the lake generally. It is not the Court’s role to.supply this information. Rather, the Board, as an agency of a coordinate branch, with.competeiicy in determining the character of the neighborhood, should make this determination in the first instance. With respect to height limits, the law also permits a finding of unique circumstances if a mistake or misjudgment has left an applicant with a nonconforming structure. It appears to the Court that the statue Appellant seeks to place has already been built, and so cannot be shrunk to comply with the height limits. The Board has the authority, to consider this circumstance as an after-the-fact variance request. Stadsvold, 754 N.W.2d at 333. Factors which the Board-may take into account include: (i) whether the nonconformity already exists and cannot now be remedied; (ii) whether there are similar structures in the area; (iii) whether the benefits of strict compliance with the ordinance are outweighed by the applicant’s burden; and (iv) whether the nonconformity is the result of good faith mistake, inadvertence, or adaptation to circumstances. or is instead the result of a willful and intentional encroachment. Id. (describing these as “equitable factors”); ^ee also Appeal of Kenney, 374 N.W.2d 271,275 (Minn. 1985). Here it appears that the statue already exists and is tall enough that it cannot be mounted in way that complies with a twenty-foot height limit. Appellant is requesting only a five-foot height variance, which is the sort of minor variance that has been found reasonable. See, e.g. Sagstetter v. City of St. Paul, 529 N.W.2d 488, 492 (Minn. App. 1995). Homes and utility towers can already be taller than this under the terms of the ordinance, and so it is likely that there are 18 ■ > 56-CV-17-3254 Lenthe v. Board of Adjustment 56-CV-17-3254 Other structures just as tall in the area. Ordinance § III.4.A; Ordinance § H.85-86. Accordingly, the Board would be free to balance the purposes that the height limit serves against the burden to Appellant. And the Board would be free to evaluate how aware Appellant was, or should have been, of the requirements of the ordinance when he .was commissioning the statue. If the Board articulates its reasoning one way or the other, it is conceivable that the Board could come out either way when balancing these factors. Conclusion Because the variance application here was treated informally by both Appellant and the Board at the board meeting, and inadequate findings were made, the Court remands the variance application so that the Board can consider the application anew, with a better appreciation of what its task is and how the law applies to that task. On remand, the Board must make findings as to all factors. And, given the circumstances, it should err on the side of over-explaining its decision rather than under-explaining. Cf. Roach v. Cty. of Becker, 2012 WL 6097133 (Minn. App. Dec. 10, 2012) (unpublished) (granting less deference to zoning authority where it had already had opportunity for rerhand). This can best be done by having an open discussion and voting on each finding and factor the Board considers. I A court issuing an order of remand to a zoning authority has the authority to limit-the presentation of evidence on remand if that is what fairness requires. Naturally, a court must make sure that the zoning authority does not “merely rationalize its previous decision.” N. States Power Co., 473 N.W.2d at 923; City ofBarnum v. Carlton Cty., 394 N. W;2d 246, 251 (Minn. App. 1986). Here, the Court elects not to limit the presentation of evidence: on remand. This is because the Board must make findings that relate to the purpose of its ordinance and the ; ; 19 56-CV-17-3254 Lenthe v. Board of Adjustment 56-CV-17-3254 character of the relevant neighborhood. Were the Board permitted to make such findings without further hearing, it might be unduly tempted to simply select the findings that would support its prior decision, without engaging in a good-faith inquiry. The task of the Board is not to do this; it is to consider the application anew in light of the relevant law. To ensure that the Board does not merely rationalize its previous decision, and that it will truly engage in actions consistent with the law. Appellant should have just as much opportunity to make arguments based on the Court’s opinion as the members of the Board will. That means both a public hearing and the chance to present new evidence, even if that evidence could (and should) have been presented previously. This is only fair because the Board also should have made its findings at the first hearing. Variance Application Remanded. 20 . ------ Pv[-e(j w( :I ']-cXD-^‘^--0'^')J) -ocO .?-*• W2• >->:5 -)£ RECEiVHQ > ‘.r ./ - •rf RHCEiVEO SfP 0 S 2017 UNDaflESOUflCE , 7_<2iX>' 73^-*^ |b« :?. .X •V', Il» /^~i i? 1?! e. \ . - i/V J^ .- ■'. ■^■'■v' •)■ *v.#'^fi X#fe4;| ifX’ E'IBSB1i|#:SE5W " ^ x--^u ■ RECEIVED SEP 0 8 2017 UNDAilESOUfiCF *■*' ■' ,;??''V ■'/ 1 . r? ,/.•. '%;#■ ■ ' ; 'S' ■>.^' ■: ^ :.:^y • * I* •- .fyi •I.’^• ••V mf -. 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W i-f^j -r^s8 .k ABSTRACT OF TITLE TO: That part of Lots Forty-four (44) and Forty-five (45), Provan Beach, said plat is on file in the Office of the Recorder, Otter Tail County, Minnesota, described as follows: Beginning at the most easterly comer of said Lot 44; thence on an assumed bearing of South 38°54T6" West along the southeasterly line of said Lot 44 a distance of 61.91 feet to the most southerly corner of said Lot 44; thence South 18°13'01" West along the easterly line of said Lot 45 a distance of 4.61 feet; thence North 48°50'31" West a distance of 30.88 feet; thence North 66°07'51" West a distance of 137 feet, more or less, to the shoreline of Pelican Lake; thence northeasterly along said shoreline to the intersection with a line which bears North 26°20'05" West from the point of beginning; thence South 26°20'05" East a distance of 199 feet more or less to the point of beginning. NOTE: All mortgages and other liens filed of record as to the above described lands which appear of record as having been satisfied prior to April 17, 1977 at 8:00 a.m., together with all assignments and satisfactions thereof and extensions, subordinations, and other documents of record related to or associated with said mortgages and other liens in any way have been omitted herefrom. WEST CENTRAL ABSTRACTING CO., INC. FERGUS FALLS, MN I Li IH /r )jA-n PROPOSED LEGAL DESCRIF That part of Lots 44 and 4S, PROVAN BEACH, sail Office of the Recorder, Otter Tail County, tiinnesot Beginning at the most easterly comer of said La, assumed bearing of South 3& degrees 54 minutes southeasterly line of said Lot 44, a distance of 6> southerly corner of said Lot 44; thence South IS second hlest along the easterly line of said Lot 4 feet; thence North 48 degrees 50 minutes 31 sect 30.88 Feet; thence North (>(> degrees 07 minutes of 137 feet more or less, to the shoreline of pe northeasterly, along said shoreline to the intersec bears North 2& degrees 20 minutes 05 seconds h beginning; thence South 20 degrees 20 minutes 0‘. of /*?“? feet more or less, to the point of beginni Containing 0.53 of an acre more or less. Subject reservations of record, if any.ORiaiNAL PLAT SURVEY LINE rrvrriNous road O <r* so 25 1 SCALE IN FE SCALE: I INCH • 50 FEE BEARINGS ARE BASED C • DENOTES IRON HON O DENOTES IRON MON MARKED “RLS I362C CERTIFICA SURVEYOR'S CERTIFICATE yLhereby certify that this is a true and correct representation of a survey of 'Tithe boundaries of the above described land, and that this survey was prepared by ^me, or under my direct supervision and that I an a duly Registered Professional Lgrld^ Surveyor under the laws of the State of Minnesota. Dated this 3rd day of NUMBER BEARING DISTANCE JOHI5 IB‘l3'OThlU 4.&I N AB-BO'SI'NL2 30.aa 0. CONTRACT NUMBER A3G-02I2003.Ch(I — yn✓7 Notice of Hearing for Variance otter tail County Government Services Center 510 Fir Ave W Fergus Faiis, MN 56537 Phone - (218) 998-8030/998-8041 Email - wstein@co.ottertail.mn.us Web Address - www.co.otter-taiLrfin.us■; OTTERTmtoesarr-oiaiiioTi Applicant and/or applicant’s representative must.be present at the scheduled hearing. To Whom It May Concern: Lepetomane Properties LLC • PO.Box14 Horace, ND 58047^0014 ^ has/have made.applicatioh to the Otter Tail County Board of Adjustment for a variance as per requirements of the Otter Tail County Shorelahd Management Ordinance, the Otter Tail County Set Back Ordinance and/or the Subdivision Controls Ordinance.; The Otter Tail County Board of Adjustment will assemble for this hearing on Thursday, October 12, 2017 at 6:30 p.m. in the Commissioners’ Room of the Otter Tail County Governrnent 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 County Auditor’s office prior to the date of the public hearing. The property concerned in the application is iegaily described as Part of Lots 44 and 45, Provan Beach, Property Address - 50155 Fish Lake Road - 56501 Section 9, Township 137, Range 42 - Township Name ^ Dunn Lake No. 56-786, Lake Name - Pelican, Class - GD The variance requested is - the following: The statue is about 5’ over allowed height - 20 feet. Statue also needs to be closer than the shore line ' limit - 75’. To be visible from lake. Being 25 in height,10’ from the ordinary high-water level and 0’ from the top of the bluff (roadside of existing park bench.) Wt^ne Stein Board of Adjustrhent Secretary V September 22, 2017 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 25th, day of September, 2017 the attached Notice of Hearing for Variance was duly served upon the individuals listed below and/or included in the attachment: Lepetomane Properties LLC, PO Box 14, Horace, ND 58047-0014 Douglas Winter, Twp Clerk of Dunn, 50053 Fish Lake Rd, Detroit Lakes, MN 56501 Pelican Group Lake Imp. Dist., % Fred Manuel, 26271 Otoson RD, Detroit Lakes, MN 56501 Otter Tail County Cola, % John Matteson, 23674 W Silver Lake Rd, Battle Lake, MN 56515 Richard West, OTC HWY Engineer, 505 S. Court St. Suite #1 Fergus Falls, MN 56537 Julie Aadland, DNR Eco & Water Resources, 1509 1st Ave N, Fergus Falis, MN 56537 Board of Adjustment: Paui R. Larson, 21283 County Highway 65, Henning, MN 56551-9573 Richard S. Schierer, 32117 260th Ave, Erhard, MN 56534 Thomas (Tom) Lee, 15600 Cty Hwy 118, Elizabeth, MN 56533-9559 Darren M Newviiie, 614 6**' St NE, Perham, MN 56573 Christopher McConn, 704 Sunset DR, Fergus Fails, MN 56537 Jack Rosenthal, 150 Willow Rd, 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, property addressed to each of the individuals listed above and/or listed in the attachment. Dated: September 15th, 2017 Wayne Stein, Secretary Otter Taii County Board of Adjustment By: Vi Manderud ~To 'pi^s-e^ A/c-rtATTi -nilc ALTENBERNDTSTS 3402 7TH ST S MOORHEAD, MN 56560 5542 PHYLLIS E ANDERSON TSTEE 4248 CLUBHOUSE DR FARGO, ND 58104 3332 AZURE ESTATE LLC 2104 HASTINGS AVE STE 200 NEWPORT, MN 55055 1812 CHARLES H & ELAINE M FUNFAR PO BOX 9215 FARGO, ND 58106 9215 AZURE LAND CO LLC 2104 HASTINGS AVE STE 200 NEWPORT, MN 55055 1812 HARVEY I 8i BONNIE J GILBERTSON 50125 FISH LAKE RD DETROIT LAKES, MN 56501 DAVID 8( S HENDRICKSON TST 570 PRAIRIE CIR E EAGAN, MN 55123 1631 CRAIG E &JOAN K KRAUSE 50201 FISH LAKE WAY DETROIT LAKES, MN 56501 9430 DAVID M& KAY L LARSON 50161 FISH LAKE RD DETROIT LAKES, MN 56501 9449 LE PETOMANE PROPERTIES LLC PO BOX 14 HORACE, ND 58047 14 LEPETOMANE PROPERTIES LLC PO BOX 14 HORACE, ND 58047 14 WALLACE & LINDA MCNAMEE 50173 FISH LAKE RD DETROIT LAKES, MN 56501 9403 RODNEY & JILL SKARVOLD ROHLFS 50135 FISH LAKE RD DETROIT LAKES, MN 56501 9403 OLSTAD TST , 414 8TH AVE NW VALLEY CITY, ND 58072 2724 BEVERLY KSKYBERG TST 26 FREMONT DR FARGO, ND 58103 5057 WILLIAM & PATRICIA H SWANSON 5857 BURR OAK DR HOFFMAN ESTATES, IL 60192 4647 JOHN VAN TASSEL 50219 FISH LAKE WAY DETROIT LAKES, MN 56501 9430 TO THE PUBLIC I o-Yv^-e^ T^«_'i>cxa-€. c j-e-r* ~^o Ci^-ec^9 GERALD & LYNETTE CHRISTENSEN 3156 248TH TRL PANORA, lA 50216 8675 RICHARD ETALCOPPLE 879 160TH ST DAKOTA CITY, NE 68731 3067 PAUL R ANDERSEN 3533 CRYSTAL PL WAYZATA, MN 55391 9203 TODD J & LINDA M LARSON 6085 MCKINLEY PL SHOREWOOD, MN 553318110 PHILIP & SARA 6AEBE 30331 STALKER RD W DALTON, MN 56324 4680 JULANN MEECH 30293 STALKER RD W DALTON, MN 56324 4682 Pa,r 03-U c{-a.-» -in STEVEN J & TRACI L MEYERS 510 14TH ST DELANO, MN 55328 8186 VIRGIL & EILEEN SCHMIT 30305 STALKER RD W DALTON, MN 56324 4680 KYLE B PETERSEN 5015 80TH AVENE MURDOCK, MN 562718012 ARTHUR W & SHARON SCHULTZ JR 29626 390TH ST DENT, MN 56528 9240 KRISTI JSIEBEN 29982 STALKER RD W DALTON, MN 56324 4683 JUDITH K SINN 145 2ND AVE JACKSON, MN 56143 1806 LANCE B & JULIE A WENDLAND 30056 STALKER RD \A/ DALTON, MN 56324 4684 STEIN FAM TST 30525 MIKES LN DALTON, MN 56324 4679 TO THE PUBLIC JAMES C & CHERI CZAJAC 1992 LAQUEY AVE NE SAINT MICHAEL, MN 55376 8223 GARY YAECK ETAL 11585 URBAN AVE NYA, MN 55368 9692 AGENDA Otter Tail County Board of Adjustment Thursday, January 10, 2019OTTER T#m 2:30 to 3:00 p.m. - Auditor’s Office - The recording of the October 12, 2017 Lepetomane Properties LLC variance hearing will be made available for review by members of the board that were not members at the time of the original hearing. 3:00 to 4:00 p.m. - Closed Session - The Otter Tail County Board of Adjustment will meet in closed session from 3:00 to 4:00 p.m. on Thursday, January 10, 2018 to discuss attorney-client privileged matters involving the Dirk Lenthe variance application, which was appealed to District Court and has been remanded back to the Board of Adjustment for further review and consideration. The closed session is authorized under Attorney-Client privilege, M.S. §13D.05, Subd. 3(b). 4:00 to 5:00 p.m. - Joint Session - The Otter Tail County Board of Commissioners, Board of Adjustment, and Planning Commission will hold a joint training session with Jason Kuboushek, Attorney with Iverson Reuvers Condon. 5:00 p.m. - Public Hearing - Thursday, January 10, 2019 Public Hearing to Consider an Application that has been remanded back to the Board of Adjustment. Lepetomane Properties LLC, part of Lots 44 and 45 Provan Beach, Pelican Lake in Dunn Township, request the following: The statue is about 5 feet over feet, Statute also needs to be closer than the shore line limit - 75’ to be visible from lake. Being 25’ in height, 10’ from the ordinary high-water level and bluff (road side of existing park bench). DEC 2 1 2018 LAND&RE80URCE Notice of Hearing for Variance otter Tail County Government Services Center 510 Fir Ave W Fergus Falls, MN 56537 Phone - (218) 998-8030/998-8041 Email - wstein@co.ottertail.mn.us Web Address - www.co.otter-tail.mn.usOTTER mil I t O T ■ Applicant and/or applicant’s representative must be present at the scheduled hearing. To Whom It May Concern: Lepetomane Properties LLC PO Box 14 Horace. ND 58047-0014 has/have made application to the Otter Tail County Board of Adjustment for a variance as per requirements of the Otter Tail County Shoreland Management Ordinance, the Otter Tail County Set Back Ordinance and/or the Subdivision Controls Ordinance. The Otter Tail County Board of Adjustment will assemble for this hearing on Original Hearing Date - Thursday, October 12, 2017 at 6:30 p.m. ^Revised Hearing Date - Thursday, January 10, 2019 at 5:00 p.m. in the Commissioners’ 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 County Auditor’s office prior to the date of the public hearing. The property concerned in the application is legally described as Part of Lots 44 and 45, Provan Beach, Property Address - 50155 Fish Lake Road - 56501 Section 9, Township 137, Range 42 - Township Name - Dunn Lake No. 56-786, Lake Name - Pelican, Class - GD The variance requested is ___ , **the following: The statue is about 5’ over allowed height - 20 feet. Statue also needs to be closer than the shore line limit - 75’. To be visible from lake. Being 25 in height,10’ from the ordinary high-water level and 0’ from the top of the bluff (roadside of existing park bench.) 'Wayne Stein Board of Adjustment Secretary December 20, 2018 *Application remanded back to the Board of Adjustment by the District Coiut for further review and consideration. ♦’•‘Board members please note the attached letter dated August 31,2018 from Jason J. Kuboushek and the 20-page order from the District Court Date Stamp received SPP 0 S 2017 -L&R Initial THE ABOVE SPACE IS RESERVED FOR THE COUNTY RECORDER APPLICATIQM 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.co.ottertail.mn.us Application Fee Accepted By / *7 ~ ' ~J -Zq(7COMPLETE THIS APPLICATION IN BLACK INK Receipt Number PROPERTY OWNER Pig 7"!^6 PR‘^Po-^neS MAILING ADDRESS BOX /V SECTION 7 TOWNSHIP DAYTIME PHONE '2^8' O iS^~7 A/P £‘SOh'~7~ O O / ‘-i________________7^ P<gA-/6/^.v /reLAKE NUMBER LAKE NAME LAKE CLASS RANGE ^ VT TOWNSHIP NAME PU N N gy-7 /jyl a/ PARCEL NUMBER E-911 ADDRESSR /7^g ’7909 7.? PgQ LEGAL DESCRIPTION FrrrP(FHeP TYPE OF VARIANCE REQUESTED (Please Check) Structure Setback ^ Structure Size Sewage System____Subdivision WECSCluster Misc. SPECIFY HOW,YOUR PROJECT VARIES FROM ORDINANCE REQUIREMENTS. PLEASE BE BRIEF AS THIS WILL BE USED FOR PUBLIC NOTIFICATION. 77/E Sr AtO-^ C s IS of i^ocapp') IS fif BoP r S f Sti^SU 5 RLgc> P/lOfiE: UfPF L/F, , T- ^ ' T ^ B'F ZS' heL(ik,i >=+- lO' f-/uH Mv^ OH'h/U -t u -frodf Mo-^T rrcWackok 1 UNDERSTAND THAT 1 HAVE APPLIED FOR A VARIANCE FROM THE REQUIREMENTS OF THE SHORELAND MANAGEMENT ORDINANCE/SUBDIVISION CONTROLS ORDINANCE / SANITATION CODE / SETBACK ORDANAND AN/pR WECS ORDINANCE OF OTTER TAIL COUNTY. '/ o s F C EO -/-/F P) AJ \f^SA /ff A.PiA:A.i I ALSO UNDERSTAND THAT OTHER PERMITS MAY BE REQUIRED; IT IS MY RESPONSIBILITY TO CONTACT LAND & RESOURCE MANAGEMENT REGARDING THIS MATTER. Y'®-; -7 SIGNATURE OF PROPERTY OWNER / AGENT FOR OWNER DATE APPLICANT MUST BE PRESENT AT THE HEARING (Applicant Will Receive Notification As To The Date/Time Of Hearing) r.i.t I'ij . Viclor Li>nd''''n Cr' Prin(i*rs • I'oraii^ Fcill^ Notice of Hearing for Variance Otter Tail County Government Services Center 510 Fir Ave W Fergus Falls, MN 56537 Phone - (218) 998-8030/998-8041 Email - wstein@co.ottertail.mn.us Web Address - www.co.otter-tail.mn.usOTTER Tflll Applicant and/or applicant’s representative must be present at the scheduled hearing. To Whom It May Concern: Lepetomane Properties LLC PO Box 14 Horace, ND 58047-0014 has/have made application to the Otter Tail County Board of Adjustment for a variance as per requirements of the Otter Tail County Shoreland Management Ordinance, the Otter Tail County Set Back Ordinance and/or the Subdivision Controls Ordinance. The Otter Tail County Board of Adjustment will assemble for this hearing on Thursday, October 12, 2017 at 6:30 p.m. in the Commissioners' 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 County Auditor’s office prior to the date of the public hearing. The property concerned in the application is legally described as Part of Lots 44 and 45, Provan Beach, Property Address - 50155 Fish Lake Road - 56501 Section 9, Township 137, Range 42 - Township Name - Dunn Lake No. 56-786, Lake Name - Pelican, Class - GD The variance requested is the following: The statue is about 5’ over allowed height - 20 feet. Statue also needs to be closer than the shore line limit - 75’. To be visible from lake. Being 25 in height,10’ from the ordinary high-water level and 0’ from the top of the bluff (roadside of existing park bench.) Wayiie Stein Board of Adjustment Secretary September 22, 2017 F , MINUTES OF THE MEETING OF THE OTTER TAIL COUNTY BOARD OF ADJUSTMENT Thursday, October 12,2017 The Otter Tail County Board of Adjustment met Thursday, October 12, 2017, with the following persons in attendance: Paul Larson Darren Newville Alexander Kvidt, Land and Resource Management David Hauser, County Attorney Thomas Lee Jack Rosenthal Chris McConn Steve Schierer Called to Order — Steve Schierer, Chair called the meeting of the Board of Adjustment to order at 6:30 p.m. Minutes Approved - The Board of Adjustment approved the minutes of the September 14, 2017 meeting as mailed. The Board of Adjustment considered the following applications for variance: Eric and Renee Sholl, Steve and Liz Sholl and Dan and Lisa Sholl - Tabled. (6:32 p.m.) Eric and Renee Sholl, Steve and Liz Sholl and Dan and Lisa Sholl, Lots 33, 34, 35 and 36 Summer Haven Beach and Lot 3 Block 3 Summer Haven Beach First Addition, Pelican Lake in Scambler Township, requested the following: Requesting that the above riparian lots be sub-divided into three lots instead of the current four. These three lots would then be 66’ instead of the current 50’. Also request to have lots buildable for single family use. Once approved a new survey would be completed. Also requesting to sub-divide Parcel # 55000990720G00 into three lots 50’ each to be permanently attached to a riparian lot and buildable for non-residential purposes. In attendance for the applicants were Eric and Renee Sholl,’Liz Sholl and Lisa Sholl. Also appearing on behalf of the applicants was David Johnson their agent. The audience was polled with no one speaking for or against the variance as requested. An email from Vincent J. Esades in support of the variance as requested was read for the record. After discussion and consideration, Steve Schierer made a motion, seconded by Thomas Lee to consider Lots 33 and 34 of Sumer Haven Beach including half of Lot 3 Block 3 Summer Haven Beach First Addition, which would be permanently attached to Lots 33 and 34 as a buildable parcel for residential use and to consider Lots 35 and 36 of Sumer Haven Beach including the remaining half of Lot 3 Block 3 Summer Haver Beach First Addition, which would be permanently attached to Lots 35 and 36 as a second buildable parcel for residential use. It was noted that granting the variance as requested would establish precedence and would establish substandard lots. Minnesota Statute 394.36 Subdivision 5 was also discussed. The discussion focused on whether the provisions of this statute pertain to existing contiguous substandard lots as platted or if it this provision allow for the reconfiguration of existing contiguous substandard lots to meet the 67% rule. After additional discussion the previous motion was withdrawn. After additional consideration, Thomas Lee made a motion, seconded by Paul Larson and unanimously carried with the verbal permission of the applicants to table this public hearing until the November 9,2017 meeting of the Board of Adjustment so that the applicants will have an opportunity to consider the variance being offered and to do additional research regarding the reasons why their original request should be approved. Lepetomane Properties LLC - Denied. (7:00 p.m.) Lepetomane Properties LLC, part of Lots 44 and 45 Pro van Beach, Pelican Lake in Dunn Township, requested the following: The statue is about 5’ over allowed height - 20 feet. Statue also needs to be closer than the shore line limit - 75’. To be visible from lake. Being 25’ in height, 10’ from the ordinary high-water level and 0’ from the top of the bluff (roadside of existing park bench.) The applicant was represented by Dirk Lenthe. The audience was polled with no one speaking for or against the variance as requested. After discussion and consideration, Paul Larson made a motion, seconded by Steve Schierer and carried with Jack Rosenthal abstaining and with Thomas Lee voting no, to deny the variances as requested as no adequate hardship/practical difficulty had been shown that would allow for the granting of the variances as requested. It was noted that the granting of the variance as requested would establish precedence and the applicant does have a reasonable use of the property without the granting of the requested variances. Roxanne Loftesness Trust— Variance application approved as requested with a condition. (7:13 p.m.) Roxanne Loftesness Trust, part of Government Lot 8, Section 3 of Nidaros Township by Stuart Lake, requested the following: Requesting variance for second story over existing structure footprint. The structure will be no closer to ordinary high-water level. No change to structure. Tim Loftesness represented the applicant at the public hearing. The applicant’s contractor also was in attendance. The audience was polled with no one speaking for or against the variance as requested. Page I 1 of 3 October 12, 2017 rttCEiVSO' Kcr 0 cj 201? i.ANDS?)H30U«CE ■i; RECaVEO PEP 3 S ?ui7 LAND*»E30lWGP If } •.ft!*r P ^ W '^0-fy(rfp,V' 1 *v ’ ■? ORDCSS® A•H' -”'>1 "■'' 'vT'V.* '-.■sir i" *r--* {] SEP 3 ®r^ V drA.. ^ m'% I/// / <»■. '.'l /k1 '/fc .; t' '■; i'i^i f & iv-..■% !~j; i-f'S'M »'l ■ryl’- y^*“ fK ■’■MsS'^v . . . \.L;4 SJ% w r' ) ABSTRACT OF TITLE TO: That part of Lots Forty-four (44) and Forty-five (45), Provan Beach, said plat is on file in the Office of the Recorder, Otter Tail County, Minnesota, described as follows: Beginning at the most easterly corner of said Lot 44; thence on an assumed bearing of South 38°54T6" West along the southeasterly line of said Lot 44 a distance of 61.91 feet to the most southerly corner of said Lot 44; thence South 18° 13'01" West along the easterly line of said Lot 45 a distance of 4.61 feet; thence North 48°50'31" West a distance of 30.88 feet; thence North 66°07'51" West a distance of 137 feet, more or less, to the shoreline of Pelican Lake; thence northeasterly along said shoreline to the intersection with a line which bears North 26°20'05" West from the point of beginning; thence South 26°20'05" East a distance of 199 feet more or less to the point of beginning. NOTE: All mortgages and other liens fded of record as to the above described lands which appear of record as having been satisfied prior to April 17, 1977 at 8:00 a.m., together with all assignments and satisfactions thereof and extensions, subordinations, and other documents of record related to or associated with said mortgages and other liens in any way have been omitted herefrom. WEST CENTRAL ABSTRACTING CO., INC. FERGUS FALLS, MN PROPOSED LEGAL DESCRIF That part of Lots A4 and 45, PROVAN BEACN, sai\ Office of the Recorder, Otter Tail County, flinnesot Beginning at the most easterly corner of said Lo\ assumed bearing of South 38 degrees 54 minutes southeasterly line of said Lot - 44, a distance of 6 southerly corner of said Lot 44; thence South 18 second Nest along the easterly line of said Lot 4 feet; thence North 48 degrees 50 minutes 31 sect 30.88 Feet; thence North 66 degrees 07 minutes of 137 feet more or less, to the shoreline of Pe northeasterly, along said shoreline to the intersec bears North 20 degrees 20 minutes 05 seconds h beginning; thence South 20 degrees 20 minutes O', of feet more or less, to the point of beginni, SubJect i Containing 0.53 of an acre more or less, reservations oF record, iF any.OiZtCINAL PU\T SURVEY LINE iruniNous road (A.1 r 2550 SCALE IN FE SCALE: I INCH = 50 FEE BEARINGS ARE BASED C a DENOTES IRON t"10N O DENOTES IRON nON' HARKED "RLS 13620 CERTIFICA NUnSER BEARING SURYETOR'S CERTIFICATEDISTANCE JOHlLI^.61 ^1;^ hereby certify that this is a true and correct representation of a survey of boundaries of the above described land, and that this survey was prepared by ^rrie^^or under my direct supervision and that / am a duly Registered Professional Surveyor under the laws of the State of Minnesota. Dated' this 3rd day of July,^2003. N JQ’50'3I"HL2 30.36 COKTRACT KUMDER 436^02 iii iSiE II i I |CA| pg■u<lA^-' p ID 11^1 n PEil 1 § PI^ESSSi^ll.K AN HAI’IDS, MINM SOI A M\Otter Tail County Single Copy $1.25Year 121, No. 42Worid’s Largest Pelican-60 years old in 2017 i ■>Ji- •f An un-common loon: '.,'P, ■ k-► 1 V Artistic expression, government regulation collide b Taller than Pelican Pete, theProposal to erect a Bunyan-esque state bird sculpture on Pelican Lake bluff denied by Otter Tail County ^3 Verges loon, Babe the Blue Ox,iand even Paul Bunyan himself...1-^ r- ‘: • Is sculpture of a loon “too large” for the Pelican Lake landscape?It By Louis Hoglund Artistic vision clashed with the cold, hard realities of government regula­ tion when Otter Tail County officials denied a permit for an immense loon sculpture overlooking Pelican Lake. An ordinary sculpture this isn’t. Stunning art though it is, the sculp­ ture falls under the definition of “structure.” And this particular struc­ ture is too tall to meet zoning ordi­ nances. Proposed for a bluff, the loca­ tion is also too close to Pelican Lake to meet setback restrictions. Minnesota’s state bird, the common loon, is the inspiration for the uncom­ mon 25-foot-tall steel masterpiece. Created by Dutch artists in Amsterdam, the loon’s ideal perch would be higji atop a bluff on the south shore of Pelican Lake-visible to boaters across the waters. Spotlights would illuminate the black and silver loon. Its eyes would shine crimson in the night - just like the red eyes of the native water bird. “It would be a great navigational landmark,” suggested Dirk Lenthe, a Fargo-based businessman who owns sev«td lots near the point where Fish Lake joins big Pelican Lake. Maybe so. But from the base to the tip of its k- • . i ■>- '!- 1'' £ ’ ^1. . ! K •: ■ »• ' ;* To visualize the size and placement of the loon sculp-! ture, Lenthe went to the trouble and expense of creating a similarly-sized wood "prototype,” which he positioned on the Pelican Lake bluff. Above, this photo of the “mock- up” loon temporarily placed above the south side of the lake, was presented at the Oct. 12 Otter Tail County meeting.’rj:•i Created by master Dutch artists, this 25 foot steel and 1stainless steel-constructed loon sculpture, left, was shipped from the Netherlands to Fargo. Pelican Lake property owner Dirk Lenthe’s plan to erect the creationUN-COMMON LOON ON PELICAN LAKE Continued on Page 5 on a bluff for boaters to view, was denied by the Otter Tail County Board of Adjustment. ■■ Hi :tT- ■■..•“.'a':-.1«!'p. J ■ :f - : ‘ ,.. •-i i if!”.it** ■; k; ■ ■ .;■ ;* tk-'iJ 1iPage 5October !.S, 201? i iHiSi bi ii 4 4 f m5 •i a'lil!Miiimi2i I >p?i ''Hi ••fey i." 'I;®,-7 / i4 •,' i ■: 'i✓4-: 4 ;•'4 'j ^ .«i. "'■' /'V'l1 - .ii.'? p i-g r . i* • V' o V '' -.1!<ll‘v*X. >,■ -f v> \ '< •4 ■■■4J.',‘t.4>-'S^ iDfrk'Ustttha cretad a simi<ariy*sized wood "prototype,” which he positiemed <A the Pelican Lake bluff. This photo of the "mock-up” loon is shown here on.the high shoieifne between Pelican and Fish Lakes tjr^ -1-;a^iafciiaa.I beak, it is five feet taller than allowed in Tail County offices. Neighbors on Pelican have been approv- Lake Road, far from the Pelican Lake Otter Tail County. Lenthe’s request for a “He sees it as great art, and he wants to ing, said Lenthe. shores. But that could create traffic con- variance from the law was defeated on a 4- place it where others can vievi? and enjoy “Everybody I’ve showed pictures to have gestion and hazards along the residential 1 vote by the Otter Tail Board of it,” said Board of Adjustment chairman been enthusiastic. They love the idea,” road. Also, at the off-lake location, he’s Adjustment Oct. 12. Steve Schierer. But it was denied because said Lenthe. “It is a great piece, I’m glad I concerned about vandalism, graffiti artists The art stands about 10 feet higher than it stands too tall, and is too close to the got it, and I wanted to put it someplace and mischievous gun-toters. “They might the world’s largest pelican, in Pelican lake. everybody could see it.” Rapids. Lenthe’s sculpture could be pro- Precedent was a key concern in the There were no verbal or written com- Lenthe. claimed the largest loon on the planet, denial. ments, either in favor or opposed, at the Or, he might simply erect the loon at his since it would take bragging rights-by five “This could establish a precedent to put county hearing-which lasted a duration of offices in West Fargo. Lenthe owns the feet- from the famous loon statue in near- up other monuments or statues,” said about ten minutes. Stamart convenience stores, and his head- by Vergas. Stein. Only once in his 18 years on the board quarters are on Main Avenue. Stamart was “I don’t recall ever seeing an application Beyond the black and white of county was there an application to rival this, in established in 1985. quite like this,” said Otter Tail County ordinance, the “gray area” of art is also an terms of size, height and overall audacity. A seasonal property owner on Pelican auditor Wayne Stein, who has been issue, said Schierer. Art is a matter of indi- It was a proposal for a lookout tower-also since 1988, Lemthe acquired additional involved in planning and zoning proceed- vidui taste. on Pelican Lake. The structure would have lots earlier this year-with visually distinc- ings here since 1991. Personally, Schierer doubts he would be risen over the lake like a lighthouse. Too five bluff topography that would be the Roadside statues “are all over the place,” enthused about a neighbor erecting a tall to meet the height restrictions, it was perfect “perch” for the loon, said Lenthe. said Stein, “but most of them are on public sculpture of that size and scope. denied. But the plan also conjured images Lenthe’s loon is sitting on a trailer in land-not in a residential setting.” “Ibis might be overkill for some peo- of creepy voyeurs, peering over the Fargo, waiting for final coatings and fin- In an upright position, with its wings pie...who may be going to the lake for expanse of Pelican Lake through a tele- ishing. The blacks will be powdered-coat- spread in the image of the “mating dance,” peacefulnesss. They may not want some- scope. ed, and the whites of the loon are simulat- it is an “impressive item,” said Stein. “But thing attracting all that attention,” said Lenthe is weighing his options. He could ed with stainless steel, then, what I might want to put up as Schierer. appeal the ruling in Otter Tail County “I’m looking at options. I may not take it art-somebody else might object to.” “I suppose they (the boardmembers) Court. He could try to modify the height out there at all,” said Lenthe. “I guess if Combined with elements of “artistic don’t want to become an arts and culture and location, and re-apply for a variance. they don’t appreciate art. I’ll go some- He could also consider a location on 50 where else with it.” acres of woodland he owns across the Fish try to shoot out the loon’s eyes,” said .1 freedom and expression,” this was perhaps board, saying ‘Yea’ or ‘Nay’ to art,” the oddest application to ever land in Otter acknowledged Lenthe.i;,'i-. !